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S v GAMBUSHE 1997 (1) SACR 638 (N)A

1997 (1) SACR p638

Citation 1997 (1) SACR 638 (N)

Court Natal Provincial Division

Judge Hurt J, Thirion J

Heard February 6, 1997

Judgment February 6, 1997

Annotations Link to Case Annotations

B
[zFNz]Flynote : Sleutelwoorde
Trial - Assessors - Procedure to be followed by presiding magistrate when court constituted
in terms of s 93ter of the Magistrates' Courts Act 32 of 1944 - Duty C on magistrate to
instruct assessors - Directions given by magistrate to form part of record - Judgment should
reflect whether acceptance of each material aspect of the evidence unanimous view of
members of the court - Reasons for dissent by any member to be recorded - Where assessor
has regard to custom or habit peculiar to a community, such knowledge to be aired in
evidence and D to form part of the record - Judgment of majority set aside on appeal as lay
assessors had failed to grasp the fundamentals of analysis of evidence.
[zHNz]Headnote : Kopnota

The appellant was convicted in a regional court on two counts of murder. The trial proceeded
before a magistrate sitting with two assessors. The court was thus E constituted in terms of s
93ter of the Magistrates' Courts Act 32 of 1944. The appellant was convicted on the evidence
of a single witness. There were several contradictions in his evidence and he had been a poor
witness. The magistrate warned that his evidence should be treated with extreme caution. The
assessors took the view that despite the discrepancies in his evidence they were inclined to
accept his version. F The presiding officer disagreed but the appellant was convicted as the
presiding officer was in the minority.

The Court remarked on appeal that the object of these provisions was to bridge the cultural
gap between the magistrates on one hand and the large number of intellectually
unsophisticated and uneducated accused persons who frequently came to trial before them on
the other. The assessors were intended to give the magistrate the benefit of G their expertise
and experience of the community to which the witnesses and the accused belonged. In terms
of s 93ter (3)(d) however the assessors were not only to provide the presiding officer with
assistance in matters of custom but were also required to play an active, and possibly
decisive, role in the analysis of the evidence. In H the light of this, the directions which the
presiding magistrate would have to give assessors preparatory to the analysis of the evidence
at the end of the case, would form part of the trial record. The presiding magistrate would
furthermore not only have to state a particular rule of evidence, which was applicable, but
also explain the reason for such rule. The judgment should also reflect whether the views
expressed as to the I acceptability of each material aspect of the evidence were the unanimous
views of the members of the court. Reasons for dissent by any member of the court should
also be recorded. Where an assessor has special knowledge of a custom or habit peculiar to a
community from which the witness or accused comes, and such knowledge has affected the
assessor's conclusion as to the facts, he ought to inform the court of this knowledge so that
the existence or otherwise of the custom may be properly aired in evidence and form part of
the record. J
1997 (1) SACR p639

HURT J

The Court remarked that although the instruction of the assessors by the magistrate on A all
the niceties of the law of evidence would constitute a substantial additional burden there was
no reliable or workable alternative.

The Court held that the view of the majority of the court had clearly been incorrect and that
of the presiding officer correct. The appeal was accordingly allowed and the conviction and
sentence set aside. B
[zCIz]Case Information

Appeal from a conviction and sentence in a regional magistrate's court.


[zJDz]Judgment

Hurt J : The appellant was tried in the regional magistrate's court, Newcastle , on two counts
of murder. The trial proceeded before the presiding magistrate, sitting with two C assessors.
The Bench was thus constituted under the provisions of s 93ter of the Magistrates' Courts Act
32 of 1944, as amended by s 1 of Act 118 of 1991. The amending section took effect in
March 1992. The parts of the section relevant to this appeal read as follows:
'(1) The judicial officer presiding at any trial may, if he deems it expedient for the
administration of justice - D
(a) before any evidence has been led; or
(b) . . .
summon to his assistance any one or two persons who, in his opinion, may be of
assistance at the trial of the case . . . to sit with him as assessor or assessors: provided that if
an accused is standing trial in the court of a E regional division on a charge of murder,
whether together with other charges or accused or not, the judicial officer shall at that trial be
assisted by two assessors unless such an accused requests that the trial be proceeded
with/without assessors, whereupon the judicial officer may in his discretion summon one or
two assessors to assist him.' F

Despite its somewhat elliptical wording, it is clear that the section makes it obligatory for the
presiding officer to sit with assessors in any trial where a murder charge is involved, unless
there is a specific request from the accused that the assessors be dispensed with, and I
presume (although it is by no means clear from the way in which the record is worded) that
the appellant did not, in this case, 'elect' to be tried by the magistrate and assessors, but
simply did not object to the court being thus constituted. G

The appellant pleaded not guilty to the charges and his legal representative informed the court
that he reserved his defence and would not be making a statement in terms of s 115 of Act 51
of 1977. The State called three witnesses, two of them policemen who testified about certain
events which occurred after the deceased had been killed. H The main State witness, Jabulani
Mavimbela, had, it was common cause, been in the company of the appellant for most of the
day and night on which the relevant events took place.

Mavimbela's account of those events was lengthy and somewhat convoluted. He told the
court that, at about noon on the day preceding that on which the two deceased met I their
death, he and the appellant had been asked by a friend named Gauta to travel to Dannhauser
in a motor vehicle belonging to Gauta, in order to procure certain motor vehicle spare parts.
Before they had left for Dannhauser, the appellant had collected a box of ammunition from a
house in Osizweni and had left this ammunition and a firearm with a girlfriend at a place
called 'Matshakeni' J
1997 (1) SACR p640
HURT J

(which seems to have been a shebeen). On their return from Dannhauser they had A reported
to Gauta and had then visited a number of places (most of them shebeens), in the course of
which the appellant recovered the firearm (and presumably the ammunition) from the
girlfriend with whom he had left them earlier. The appellant, at some stage after thus
recovering the firearm, asked Mavimbela to drive him to the B residence of the deceased,
Sikhumbuso Dladla. They were still using Gauta's vehicle as a means of transport. On their
arrival at Dladla's home, the appellant alighted and went into the premises while Mavimbela
waited at the gate, either in or just outside the motor vehicle. Mavimbela said he watched the
appellant go to the kitchen door and C kick it open and then proceed to the bedroom (which
seems to have been in a different building or to have had a separate entrance from outside),
kick open that door and enter. A short while later Mavimbela heard four gunshots going off
and then the appellant returned to the car and announced that he had 'shot them', which
Mavimbela took to be a reference to the occupants of the bedroom. The appellant then
warned D Mavimbela that if anyone found out who had fired the shots, the appellant would
shoot Mavimbela, after which pleasantry, the two of them repaired to the shebeen where the
appellant had left his girlfriend and they, the girlfriend and some other acquaintances had
more to drink. Eventually Mavimbela took the appellant home and when the E appellant
alighted from the car, he gave the firearm to Mavimbela for reasons not explained, and told
Mavimbela to call on him when he awoke so that he (the appellant) could take Mavimbela to
a witchdoctor in Bethlehem (in the Free State), also for reasons, or a purpose, which are
unexplained. Mavimbela did not heed the appellant's F request, but instead called on Gauta,
who asked him to accompany him to Volksrust. According to Mavimbela, 'on the way' to
Volksrust, he told Gauta what had happened in the early hours of the morning. At some later
stage Mavimbela handed the firearm to Sicelo Dladla the brother of the deceased
Sikhombuso Dladla.

The record demonstrates, amply and to my mind irrefutably, that Mavimbela was a G very
poor witness. In the first place his performance under cross-examination was nothing short of
pathetic. In regard to Mavimbela's attempts to deal with cross-examination on the question of
how the appellant allegedly got the firearm back from the girlfriend with whom he had left it
earlier that day, the learned magistrate said, in his judgment, H

'When he was cross-examined about the contradictions in his evidence regarding this aspect
his evidence became totally confusing and incoherent. At one stage he stated that they
returned to Matshakeni to recover the firearm from his girlfriend. It is clear that . . .
Mavimbela was dishonest with regard to this aspect and that he lied to the court.' I

Mavimbela's evidence that he saw appellant kicking open the door of the bedroom in which
the deceased were later found was refuted by the evidence of the investigating officer,
Warrant Officer Masondo, who testified that a person standing in the vicinity of the entrance
to the property, where Mavimbela said he was standing, could not possibly have seen what
was happening at the door to the bedroom. When this evidence J
1997 (1) SACR p641

HURT J

was put to Mavimbela in cross-examination, his answer was illuminating, viz: A

'I cannot memorise everything. It's too much for me to memorise.'

I have the greatest difficulty in accepting that a person would have any difficulty in
remembering whether he saw the appellant kicking open a door in the situation in B which
Mavimbela found himself. His evidence seems to indicate that he did not, in fact, remain at
the gate or in the vehicle. If that is so then there is a distinct possibility (for the purposes of
this judgment I need put it no higher) that he is in the classical position of an accomplice or a
perpetrator who is able to testify to that which he knows to have happened, but to attribute it
to the conduct of the person on whom he wishes to heap C the blame. (See, egR v Ncanana
1948 (4) SA 399 (A) at 405.)

The learned magistrate made specific mention, in his judgment, that the evidence of the
single witness, Mavimbela, should be treated with 'extreme caution'. He referred to the D
contraditions and discrepancies in Mavimbela's evidence and stated that these were of too
serious and material a nature to allow for a conviction. However, he said, the assessors took
the view that, despite the discrepancies in Mavimbela's evidence, they were inclined to accept
his version and to find the appellant guilty. It is necessary, in view of what I intend to say
later in this judgment, to set out this portion of the learned magistrate's judgment in full. E

'The two assessors are of the opinion that the accused should be convicted. The presiding
officer does not agree with them.

It is so that there are certain probabilities which favour the version of the State. Jabulani
Mavimbela it seems . . . was under no obligation to report this matter to the second State
witness (ie Gauta). He was the only person as far as the court can F ascertain who knew about
the identity of the person who shot the two deceased. He reported to the second State witness
the day after the shooting - actually the morning, the same morning of the shooting. There
were no ill-feelings between the accused and Jabulani and there seems to be no reason why
Jabulani would have wanted to implicate the accused and by reporting that he, that is
Jabulani, was present at the time of the shooting he also to some extent disclosed his own
involvement in the matter in that he drove the vehicle to the home of the deceased. Jabulani
had the firearm which G was later handed to the police. There is no evidence that this firearm
was in fact used in the shooting apart from the evidence of Jabulani. One can safely accept
that this firearm was the one that was indeed used. If perhaps Jabulani was the person who
did the shooting it would have been far better for his sake to keep quiet about this incident
because accused was not present when the two deceased were shot according to the H version
of the accused and it would have been better for Jabulani to hide the firearm or to get rid of it.

There is, of course, the other aspect that one must ask oneself. "Why did the accused, if he
did the shooting, take the witness along? An explanation can probably be found in the fact
that considerable drinking had taken place on this day. I

The . . . presiding officer agrees with the two assessors that it is indeed probable that accused
did shoot the two deceased. The presiding officer, however, feels that if one considers the
serious contradictions in the evidence of Jabulani and the fact that the accused was not a bad
witness it is difficult to reject the version of the accused.

The assessors feel that the accused should be convicted because despite the contradictions in
Jabulani's evidence there is the fact that Jabulani was under no J
1997 (1) SACR p642

HURT J

obligation to disclose his knowledge and his involvement regarding the shooting to the A
second State witness. There is also the aspect that there were no ill-feelings between Jabulani
and the accused. The versions of the accused and Jabulani were extremely similar except with
regard to the matters which tend to implicate . . . the accused. B

It would also seem that - and they accept the evidence of Gauta that Jabulani reported the
matter to him very soon after it occurred and they therefore feel that the accused should be
convicted. The presiding officer is, of course, bound by the majority finding of the court, and
the court finds the accused is guilty on both counts.'

It is apparent from the above passage that the learned magistrate was effectively C
distinguishing between his finding that the State's evidence fell short of establishing the
appellant's guilt beyond reasonable doubt and the assessors ' view, which might possibly have
been based on a balance of probability. It seems that, on any reading of the evidence, the
learned magistrate's approach was the correct one. But the appeal D raises some important
questions as to the procedure in trials in which lay assessors are involved, and I consider it
apposite, in this case, to comment on certain aspects of the procedure adopted by the court a
quo . These comments are not intended as a criticism of the court or of the procedure which it
adopted, but there are certain aspects of the record and the judgment which have given us
some difficulty as a Court E of Appeal and it seems that some comment on the difficulties
which the provisions of s 93ter appear to have generated would not be out of place.

Section 93ter (2)(a) of the Magistrates' Courts Act contains the following provisions in
regard to the selection of assessors:

'In considering whether summoning assessors under ss (1) would be expedient for the
administration of justice, the judicial officer shall take into account - F
(i) the cultural and social environment from which the accused originates;
(ii) the educational background of the accused;
(iii) the nature and the seriousness of the offence of which the accused stands accused or
has been convicted;
(iv) the extent or probable extent of the punishment to which the accused will be exposed
upon conviction, or is exposed, as the case may be; G
(v) any other matter or circumstance which he may deem to be indicative of the
desirability of summoning an assessor or assessors,

and he may question the accused in relation to the matters referred to in this paragraph.'

As I understand the object of these provisions, it was to bridge what was conceived to H be
the cultural gap between the magistrates, on the one hand, and the large numberof
intellectually unsophisticated and uneducated accused persons who frequently came to trial
before them, on the other. What was contemplated was that the presence of the assessors
would make the trial of the accused more of a 'trial by peers' and constitute I some protection
against the conduct or reactions of the witnesses and the accused being judged by incorrect
yardsticks not applicable to those of the environment and community to which those
witnesses and the accused belong. In a limited sense, then, the assessors were intended to
give the magistrate the benefit of their expertise and experience of the community from
which the accused comes and of its communal values and standards, which might often
explain conduct or J
1997 (1) SACR p643

HURT J

reactions which a stranger to that community might regard as doubtful or suspicious. A

However, s 93ter (3)(d) provides that, upon all matters of fact, the decision or finding of the
majority of the members of the court shall be the finding of the court. It follows that, apart
from affording the presiding officer some assistance in matters of custom, B the assessors are
required to play an active, and possibly decisive, role in the analysis of the evidence which is
presented to the court and in that context they constitute a sort of 'mini jury'. In considering
the consequences of this function, I think it is fundamentally important to distinguish
between assessors appointed under s 93ter and those who sit in the Supreme Court under the
provisions of s 145 of the Criminal C Procedure Act 51 of 1977. Section 145(1)(b) states that:
'An assessor for the purposes of this section means a person who, in the opinion of the Judge
who presides at the trial, has experience in the administration of justice or skill in any matter
which may be considered at the trial.' D

It is a matter of common experience in the Supreme Court that, save in cases where there may
be questions of fact involving specialist technical expertise, the assessors who sit with a
Judge in criminal trials are invariably people who have substantial previous experience in
criminal procedure and in the science of evaluation of evidence. E Thus when a question
arises, for instance, on the application of a cautionary rule to the evidence of a witness, a
Court of Appeal can assume, with a reasonable degree of confidence, that all three members
of the Court of first instance applied the proper approach to the evidence of that witness. The
same considerations clearly do not apply to the situation where assessors sit with a magistrate
under the provisions of s 93ter . F Since the provisions of s 93ter relate directly to procedure
in criminal cases and are accordingly inextricably interwoven with those of Act 51 of 1977, it
is, in my view, somewhat unfortunate that the Legislator has chosen to use the word 'assessor'
to designate the people co-opted in terms of s 93ter . G

As I understand the background to this amendment to the Act concerned, it was contemplated
that the assessors would be drawn from local 'pools' of community members who are
regarded as having some social and 'community' status. There is no selection criterion based
on legal or procedural knowledge or experience or expertise. Although their experience as
members of the community may be of considerable assistance in the enquiry pertaining to
sentence of an accused person, it is by no means H clear that, in the average situation, they
will be able to give the presiding officer any real assistance in reaching a decision as to the
guilt or innocence of an accused person. Hopefully I am being unduly pessimistic in this
regard, but I am compelled to say that the particular case with which this appeal is concerned
gives me no encouragement I whatsoever. The material aspects that we, as Judges of appeal,
are unable to ascertain from this record are the following:
(a) whether certain of the comments which are made in the body of the judgment (ie in
the summary of the evidence) reflect the unanimous view of the triumvirate or whether they
were the opinions of the presiding officer only; J
1997 (1) SACR p644
HURT J
(b) whether, and in precisely what terms, the cautionary rules relating to A evidence by a
single witness and relating to evidence by accomplices were explained to the assessors; and
(c) whether there were any features, other than the fact that Mavimbela reported the
commission of the offence to the police, which persuaded the B assessors to the view that the
appellant was guilty.

The above is possibly not an exhaustive list of the aspects upon which the Appeal Court may
have required more data than appears from the record, but it demonstrates what I consider
will have to become a feature of trials in which assessors sit to decide C the merits of a
prosecution as opposed to those in which they merely assist the court in questions of
sentence. It seems to me that the 'tuition' or directions which the presiding magistrate will,
perforce, have to give his assessors, preparatory to their analysis of the evidence at the end of
the case, will have to be part of the trial record, in much the same way as were a Judge's
directions to the jury. (This notwithstanding D the remarks of Schreiner JA in R v Huebsch
1953 (2) SA 561 (A) at 564-5.) Thus, in a case (such as the one now under consideration)
involving a single witness for the State, the magistrate will have to place on record his
instructions to the assessors as to how they are to approach the State evidence. Similar
considerations would apply to E the evidence of accomplices, the evidence of complainants
in sexual cases etc. Furthermore it is not sufficient simply to state the rule. The presiding
officer will have to inform his assessors of the reason why the rule is in place. Just as the
Judge's summing up in a jury trial was regarded as a vital aspect on appeal, so, in my view,
will the record of what was said by the presiding officer to the lay assessors be in appeals
from the regional court where assessors have sat. Secondly, as in all cases where a judicial F
officer sits with assessors, it will be necessary for the judgment to reflect clearly whether the
views expressed as to the acceptability of each material aspect of the evidence are the
unanimous views of the members of the court. (See S v Masuku and Others 1985 (3) SA 908
(A) at 912.) Section 93ter (3)(e) of Act 32 of 1944 G stipulates that the court must give
reasons for its decision or finding. This requirement is in virtually identical terms to the
provisions of ss 146(b) and (c) of Act 51 of 1977. What was said in S v Masuku (supra ) at
911-12 about recording the findings of the trial Court and any reasons for dissent by any
member of the Court applies with equal force to the finding of any court constituted in terms
of s 93ter . (See also in this regard H R v Bellingham 1955 (2) SA 566 (A) at 570; R v
Tazwinga 1968 (2) SA 590 (RA) at 592; S v Kalogoropoulos 1993 (1) SACR 12 (A) at 16-
17.) Thirdly, where an assessor has special knowledge of some custom or habit peculiar to
the community from which the witness or the accused comes, which may affect his
conclusion as to I the facts, he should inform the court of this knowledge and the existence or
otherwise of the custom (and, of course, its effect on the assessment of the evidence) can then
be properly aired in evidence and form part of the record in the trial.

I am aware that to require a magistrate, as part of the record of proceedings in his court, to
'instruct' his assessors on all the niceties of the law of evidence which may arise in the course
of a trial and which may J
1997 (1) SACR p645

HURT J

affect their approach to the factual material in that evidence, will constitute a substantial A
additional burden, but I do not think that there is a reliable or workable alternative. It is
certainly not feasible nor in the interests of the proper administration of justice that 'assessors'
who are appointed under s 93ter should, as triers of fact, be presumed to have the same status
and capabilities as the assessors who are appointed under the B provisions of s 145 of Act 51
of 1977. In this particular instance, the main aberration on the part of the assessors is fairly
apparent from the evidence itself, but there are a myriad of possible instances where a failure
to grasp the fundamentals of analysis of evidence may lead an assessor into error which will
not be easily discernible from the C record or from the judgment. In such cases the danger of
a miscarriage of justice will be ever present and the only means to avoid it will be to ensure
that all the relevant material is on the record for the
Appeal Court
to see.

As is clear from what I have said in relation to the circumstances of this appeal, the view of
the majority of the court a quo was clearly erroneous and that of the presiding D officer
correct. It follows that I would allow the appeal, set aside the conviction and sentence and
substiute a verdict of 'not guilty' therefor.

Thirion J concurred.

State v Petersen and Another:

In the unreported case of S v Petersen1, heard in the High Court of the Cape of Good Hope

1 Summary of case see A J Hamman, The right to privacy and the challenge of modern cellphone
technology, unpublished Master’s thesis University of the Western Cape (2004:12-21).
Cape High Court Case No: SS 95/98 other information obtained Sunday Times 26 September 1999.
available at www.suntimes.co.za/1999/09/26/insight/in01.htm and
Provincial Division, advanced cell phone technology was utilised by the prosecution. The
detailed billing records were obtained from the cell phone companies and the information
obtained from the cell phone records assisted the court in reaching a verdict. This case was
flagged as the first in South Africa that made use of advanced cell phone technology.

1 The facts

Marilese Holmes and Eddie Keim were murdered in the early hours of Monday 5 th January
1998. They drove up to Signal Hill, Cape Town to view the city lights. Unbeknown to the
couple, as they drove up Signal Hill, they were being followed. Their bodies were found
murdered in the region of Monwabisi beach, near Strandfontein approximately 30
kilometres from Signal Hill.

The Murder and Robbery Unit of the police received information that the bodies of a male
and a female had been found in the Khayelitsha area. On the scene, the body of a white
male with one single bullet in the back of his head was discovered which indicated that he
had been shot execution style. It seemed that his head was forced to the ground to stop him
from screaming. His mouth was also full of sand. On the scene a few bottles and a dagga
pipe were found and one of the sandals of the deceased was missing.

Around ten to fifteen kilometres from where the white male’s body was lying, the body of a
white female was discovered. The body was lying five meters from the road with a gunshot
wound under the chin and another next to the left eye. Three spent cartridges and one live
round were also found on this scene. After a post mortem was performed on the body, it
was discovered that the deceased was assaulted and raped twice. In the area between the
bodies the police found the burnt out shell of Holmes’ metallic green BMW motor vehicle.

No one knew what exactly happened during the long journey of 30 kilometres from Signal
Hill down to Khayelitsha. The huge media coverage given to the murders resulted in the
police making a breakthrough. A person had telephoned crime stop with information that
they know the suspects in the killings. As a result of the information the two bodies of the

www.mnet.co.za/CarteBlanche/Display/Display.asp?Id=1637.
Knotts were found.

Close to the scene where Keim’s body had been dumped, police found the bodies of Mike
and Maggie Knott, a Somerset West couple who were hijacked outside their home on the
2nd of January 1998. Their bodies had been lying in the area for four days. They had been
severely assaulted and shot several times. All the other victims, apart from Maggie Knott,
who had been strangled and shot, had been shot execution style. Spent cartridges found at
this scene would later link the same murder weapon to the murders of Holmes and Keim.
The police realized as they gathered more evidence that they were looking for a gang of
killers.

On the same weekend, a Stellenbosch pastor, Andries Manders, and his 10-year old son,
also named Andries, were hijacked, but managed to sweet talk their way out of danger by
asking their attackers: “Do you know that you are in the presence of a child of God?”
Fortunately for them they escaped with their lives. The hijackers took them to a plantation,
tied them to a tree and went off with the Manders’ white bakkie. One of the perpetrators
allegedly said to the victims:” You can be lucky we never killed you because we usually do”.

On the 7th January 1998, the police had enough evidence to arrest four suspects that were
linked to the crimes. They received the names of the four from different informers, people
who did not know each other. Rashaad Petersen and Marshal Andrews respectively 28 and
24 years old, were arrested for the murders. A shoot out occurred outside Paarl when an
attempt was made by the police to arrest the other two suspects, namely Dawood Dastigir
and Charles Marcus. The said Dastigir and Marcus were fatally injured during the shootout
with the police. DNA samples later positively link Dastigir and Marcus to the rape of
Marilese Holmes. Petersen and Andrews’ bail hearing was held in Mitchell’s Plain
Magistrates’ Court, but an administrative blunder on the part of the prosecution saw the
Magistrate struck the case off the court roll. Because of pressure from various sectors
including Deryck Holmes, Marilese’s father, the media and the widespread attention and
the public’s outrage, Petersen and Andrews gave themselves over to the police, as they
were scared that they would be murdered.

Rashaad Petersen and Marshall Andrews were charged in the High Court of Cape Town,
Cape of Good Hope Provincial Division, with four counts of murder, six counts of assault and
three counts of theft:

2 The prosecution

There were no direct evidence against the accused and no state witnesses who saw the
murders. Only after the bodies were found, informers told the police whom they think it
could possibly be. Both the accused pleaded not guilty to all the charges and it was left to
the prosecution to build a solid case against them. But apart from a fingerprint found on the
BMW’s CD shuttle in the vehicle of Holmes, most of the evidence was circumstantial. There
was indeed a feeling that it was almost pointless to prosecute a case like this, as the

evidence was extremely thin against the accused.2

The police together with the prosecution had an idea that was to make legal history.
Holmes’ cell phone was missing. They subpoenaed the records from the cell phone
companies Vodacom and MTN and obtained the detailed billing records of Holmes’s cell
phone and the one that Dastigir allegedly used. The details of the location from where all

the calls were made were put on a map within certain areas of the Cape Peninsula. 3

What the suspects did not realize was that every time a call was made on a cell phone, the
number which is dialed, the time of the call, the date and the location of both the caller and
the recipient of the call was recorded on computer. These computer records proved that a
number of calls were made from Holmes’ cell phone to one belonging to a relative of

Dawood Dastigir, one of the dead suspects.4 The killers left an electronic trace.

Dastigir was linked to a cell phone with the number 083 7652 778. The evidence of the state
witness, Adullah Davids was crucial for the state. She testified that during December 1998,
Charles Marcus, who was the boyfriend of her daughter, Rahana Galant came twice to her
home in Mitchell’s Plain, with a golden Mercedes Benz. During January 1999 he came to her

2 Information obtained from State Advocate Kevin Rossouw who prosecuted case in High Court, Cape
Town. Interviewed 21 May 2003.
3 www.suntimes.co.za/1999/09/26/insight/in01.htm.
4 Evidence of state witness D R Oosthuizen Vodacom.
home in Hanover Park with a cream Mercedes.5

She also testified that Petersen, Andrews and Dastigir always accompanied Marcus when he
came to her. She also testified that in and during January 1999, the four of them came to
her home in Mitchell’s Plain and Charles wanted her to look at a dark green or dark navy
BMW motor vehicle and a cell phone, a Nokia 8110.

The four asked her if she was interested in buying the motor vehicle and the cell phone from
them. She said that she switched the cell phone on and testified in court that she identified
all four suspects in a green BMW and she specifically remembered the cell phone.

A section 2056 subpoena was obtained to compel the cell phone companies to hand over
the cell phone records of the two cell phones. The police got the different times that these
calls were made to each of the phones. It was then decided to put it all onto a detailed map
of Cape Town and its surrounds.

It was left to a geographical information specialist (GIS)7 to build a visual image out of the
data received from the cell phone companies by using maps. Although it was the first in this
country the specialist was confident that the movement of the killers could be tracked. By
looking at the cell phone records the following could be ascertained because Holmes’ cell
phone was used:

After the vehicle was hijacked on Signal Hill the gang must have split up into two groups.
The one then used Holmes’ cell phone to phone the other to arrange rendezvous points.
Holmes’ cell phone had a Vodacom cell number 082 5699 139 and the other cell number
was a MTN number 083 7652 778, a cell phone which belonged to a Rashied Sathar, the

brother in law of Dawood Dastigir. The said Sathar8 testified in court that during the period

5 Evidence state witness Adullah Davids.


6 Section 205 of the Criminal Procedure Act 51 of 1977.
7 Evidence of P Smitz state witness GIS expert.
8 Evidence of Rashied Sathar.
of 30 December 1998 to 6 January 1999 he borrowed his cell phone, which could only
receive calls, to Dawood Dastigir.

The following details of the records from Vodacom9 were obtained and handed in as an
exhibit in court:
MSISDN IMEI TRAN CALL DATE CALL DURATIO OTHER PARTY CELL NAME
TIME N

27825699139 490137100223180 MOC 5 –JAN- 1998 01:20:23 01:19 083 7652 778 GARDENS

27825699139 490137100223180 MOC 5 –JAN- 1998 01:31:29 00:58 083 7652 778 VALKENBERG

27825699139 490137100223180 MOC 5 –JAN- 1998 01:33:35 01:06 083 7652 778 ATHLONE

27825699139 490137100223180 MOC 5 –JAN- 1998 01:50:20 00:40 083 7652 778 KHAYELITSHA

27825699139 490137100223180 MOC 5 –JAN- 1998 01:51:27 01:03 083 7652 778 STRANDFONTN

27825699139 490137100223180 MOC 5 –JAN- 1998 01:52:56 00:18 083 7652 778 STRANDFONTN

27825699139 490137100223180 MOC 5 –JAN- 1998 01:53:30 00:37 083 7652 778 MITCH PLAIN

27825699139 490137100223180 MOC 5 –JAN- 1998 01:58:28 00:22 083 7652 778 STRANDFONTN

27825699139 490137100223180 MOC 5 –JAN- 1998 01:59:06 00:26 083 7652 778 STRANDFONTN

27825699139 490137100223180 MOC 5 –JAN- 1998 02:06:43 00:45 083 7652 778 MITCH PLAIN

27825699139 490137100223180 MOC 5 –JAN- 1998 02:08:02 00:31 083 7652 778 MITCH PLAIN

27825699139 490137100223180 MOC 5 –JAN- 1998 02:12:59 00:52 083 7652 778 MITCH PLAIN

The following details of the records from MTN10 were obtained and also handed in as an
exhibit in court:
CALL DATE CALL TIME CALLING NO.CALLED NO. DURATION IMEI IN/OUT SITE

980105 012020 0825699139 0837652778 1.19 450058010687750 I CAPE SWISS HOTEL, GARDENS

980105 013125 0825699139 0837652778 0.58 450058010687750 I LEDGER HOUSE, ATHLONE

980105 013327 0825699139 0837652778 1.06 450058010687750 I NICO MALAN, HEIDEVLED

980105 025012 0825699139 0837652778 0.4 450058010687750 I GARDENPOTCENTER, RYLANDS

9 Extract from Exhibit SS of court record - data received from Vodacom.


10 Extract from Exhibit TT of court record- data received from MTN.
980105 015120 0825699139 0837652778 1.03 450058010687750 I NICO MALAN, HEIDEVELD

980105 015248 0825699139 0837652778 0.18 450058010687750 I NICO MALAN HEIDEVELD

980105 015323 0825699139 0837652778 0.36 450058010687750 I HANOVER PAR K TELKOM

980105 015820 0825699139 0837652778 0.22 450058010687750 I VGK CHURCH , LANDSDOWN

980105 015828 0825699139 0837652778 0.25 450058010687750 I NEUMAN FARM CAPE TOWN

980105 020635 0825699139 0837652778 0.45 450058010687750 I PHILIPI COD STRRAGE PHILIPI
INDUSTRIAL

980105 020754 0825699139 0837652778 0.3 450058010687750 I MANDALAY PRIMARY SCHOOL,


MANDALAY

980105 021252 0825699139 0837652778 0.51 450058010687750 I MANDALAY PRIMARY SCHOOL


MANDALAY

The detailed billing records contained the following; the telephone; the handsets (cell phone
numbers) that has been used; the time of the call/s; the length (duration) of the call/s; the
location of the caller (sending point of the call /the cell the call was made from); the location
of the recipient (reception point of the call /the cell where the call was made to).

The GIS expert11 and the police spent approximately three full days in front of computer
screens to prepare evidence for court. First a street map of Cape Town was installed on
computer. Then the towers that transmitted the calls were entered. The calls that had been
made in the early hours of Monday 5 January 1998 were then logged onto the computer.

From this picture it was accurately and simply indicated to the court where the two vehicles
must have been and at what time. A total of twelve calls were made from Holmes’s cell
phone – 082 5699 139 all to the same MTN number - 083 7652 778.

The records indicated that at 01:50 the area was reached where Keim’s body was found
later that day. The expert drafted a map of the whole route that the users of the cell phones
took, by looking at the cell phone records. It proved that the user of number 082 5699 139
was at Gardens at 1:20 and talking to user of cell phone 083 7652 778 who was at Cape
Swiss Gardens. Calls 10 –12 also confirmed that the users of the cell phones were in the
vicinity of Mitchells Plain, which confirmed the version of witness Adullah Davids that they
were at her home in the early hours of that Monday morning.

During the incident, five calls were made from the area where Holmes’ body was found.

11 Evidence of witness P Smitz.


Between 02:06 and 02:12 three calls were made to the other vehicle. The map showed the
gang had moved towards Mitchells Plain. They then drove to the house of Adullah Davids
where they allegedly tried to sell her Holmes’s BMW and cell phone. During the trial,
Adullah, who turned state witness, confirmed this.

Deryck Holmes, the father of Holmes, testified that he had put a message on Holmes’s cell
phone, when switched on it read” Hello Marilese”. This is what Adullah Davids told the court
that she saw on the face of the cell phone that the four tried to sell her in the early hours of
5 January 1998. Under cross-examination, she said it could have been in the region of 3am
in the morning that the four came to her

3 The defence.

Both Petersen and Andrews testified in their own defence. The basis of their defence were
that they were somewhere else and even had witnesses to substantiate their alibis.
Petersen testified that he went with family to a funeral on the Sunday and that he could not

took part in the hijacking of Manders.12 The court also rejected the evidence of the defence

witnesses as false and contradictory.13 The accused who throughout the trial maintained
their innocence would through cell phone tracking have their alibi shattered and placed in
the vicinity of the bodies of the victims.

4 The verdict and sentence

The court14 made the following finding. That it was common knowledge that Holmes’
vehicle was hijacked on Signal Hill in the early hours of Monday 5 January 1998. The state
had proven with the extracts of the cell phone records from Vodacom that a Vodacom cell
phone with sim card 082 569 9139, Holmes’s cell phone, made 12 calls to a MTN cell phone,
083 7652 778, which was in possession of Dawood Dastigir. These calls were made between
01:20 and 2: 12 during a period of 52 minutes.

The court found that the only inference it could make was that the calls that were made
from Holmes’ cell phone to the cell phone of Sathar, which was in the possession of Dastigir.
It was also found that the calls were made according to the route that was mapped out by

12 Judgment page 27.


13 Judgment page 28.
14 Judgment delivered by Lategan J.
using the cell phone records.

The court found that the movement of the suspects could be ascertained from Signal Hill to
Mitchell’s Plain near the house of Adullah Davids. The court made the deduction that the
hijackers must have travelled with Holmes and Keim in the BMW from Signal Hill and that
there was another vehicle, which probably had Sathar’s cell phone in it. The 12 calls were
made on route to where the body of Holmes was found and that they went from there to
the home of Adullah Davids in Mitchell’s Plain.

A ballistic expert15 also testified that the 9mm hand weapon was the same that was used in
the murders of Holmes, Keim and the Knots. It was also found that the CD shuttle, which
Petersen testified that he received from someone else, came out of Holmes’ BMW motor
vehicle. The defence also made the admission that the pubic hair that was found on the leg
of Holmes was that of Dastigir and that the semen extracted from a vaginal smear was that

of Charles Marcus.16 The court rejected the evidence of Petersen and Andrews that they
had alibis and found, that even the witnesses that they called to substantiate their alibis,
contradicted each other and their evidence was very poor.

Adullah Davids’ testimony, combined with the irrefutable evidence of the mapped cell
phone records destroyed the alibis ventured by the accused. The court found both accused
guilty on all thirteen charges.

On the 23rd September 1999, Petersen and Andrews were sentenced to life imprisonment.
Declared dangerous criminals, their sentences will only be reviewed when they next appear
in court again in September 2029. It was with the assistance of modern cell phone
technology that the prosecution was able to obtain a guilty verdict, although there was no
direct evidence against the accused.

15 Evidence of Inspector C Pieterse.


16 Judgment page 26.
5 Conclusion
Cell phone records can indicate precisely where a user was on a specific day, by using the
records of the cell phone companies. The precise geographical area from where the call was
made and the location where the recipient was can be ascertained. This can be determined
by looking at which tower was used in making the call, the time of the call, the duration and
which tower received the call. All this information is obtainable from the printouts of cell
phone records from cell phone companies.

An expert if required will be able to plot all the detail on a map to indicate with precision
where a user was when a call was made. A user who used a cell phone on a specific day and
makes a number of calls whilst moving around can have the movements plotted on a map
and it can then be traced by making use of cell phone records.

The latest cell phone technology was utilized in the case of S v Petersen & Another to ensure
a conviction. Without the cell phone records there were no direct evidence against the
accused, as there were no eyewitnesses. The two accused would through cell phone
technology be linked to the crime. Their movements were tracked from Signal Hill in Cape
Town to where the bodies were found and to the place where they wanted to sell the
vehicle and the cell phone. By compiling a route map by using the cell phone records to
pinpoint the locations of base stations towers, it was almost accurately done to illustrate to
the court the movements of the individual whilst they were moving and using their cell
phones during a 52 minute period. The one cell phone belonged to the deceased Marilese
Holmes and the other to a Sathar who borrowed it to Dastigir, one of the suspects.

As a result of cell phone technology the court could bring out a guilty verdict. The irrefutable
evidence of the mapped cell phone records destroyed the alibis ventured by the two
accused.
S v LWANE 1966 (2) SA 433 (A)
1966 (2) SA p433

Citation 1966 (2) SA 433 (A)

Court Appellate Division

Judge wvan Blerk JA,Ogilvie Thompson JA andHolmes JA

Heard March 18, 1966

Judgment March 24, 1966

Annotations Link to Case Annotations

A
[zFNz]Flynote : Sleutelwoorde
Criminal procedure - Trial - Duty of presiding officer to warn witness re incriminating
evidence - Nature of - Failure to perform - Effect - Evidence - Confession - Complainant at
preparatory examination on a charge of attempted murder confessing to murder of somebody
else - Deponent not having been warned and B ignorant of his right under sec. 234 of Act 56
of 1955 - Complainant subsequently charged with such murder - Deposition in preparatory
examination admitted - Conviction set aside.
[zHNz]Headnote : Kopnota

Per OGILVIE THOMPSON, J.A. (VAN BLERK, J.A., concurring): Although the protection
conferred upon a witness by section 234 of Act 56 of 1955, as amended by section 20 of Act
92 of 1963, is usually described as a C privilege personal to himself which he must claim,
and although the section itself does not in terms require a witness to be apprised of his right
to decline to answer a question on any of the grounds mentioned in the section, it is, in
accordance with the established rule of practice in our courts, the duty of the presiding
judicial official to inform a witness of his right to decline to answer an incriminating
question. The effect of non-observance of that rule upon the admissibility in D subsequent
proceedings of an incriminating statement made by an uncautioned witness falls to be
determined upon the particular facts of the case. In any such enquiry, the nature of the
incriminating statement and the ascertained, or presumed, knowledge of his rights by the
deponent will always be important factors.

Semble: A complementary duty rests upon the prosecutor in certain circumstances - for
example, where he proposes to put questions likely to reveal conduct on the part of the
witness which, to the E prosecutor's knowledge, will be incriminating - to make some prior
intimation to the Bench of his intentions.

Per HOLMES, J.A.: In this country there is a general rule of practice in terms of which a
judicial officer has a duty to warn a witness in criminal proceedings that he is not obliged to
give evidence which might have a tendency to expose him to a criminal charge. The duty
arises whenever it appears that the witness might well be about to give such evidence,
whether or not a specific question has been directed thereto. F Non-observance of the
aforesaid duty is an irregularity which ordinarily will render the incriminating evidence
inadmissible in a prosecution against the witness.

Appellant and one H had both been convicted of the murder of X and, no extenuating
circumstances having been found, had been sentenced to death. The evidence led at the trial
disclosed that, three days after the murder, H had shot appellant in the stomach; that at a
preparatory examination against H in respect of that shooting episode appellant had G been
called as a witness; and that a copy of his deposition, which incorporated a confession to the
murder of X, had been admitted in evidence. In an appeal on a question of law reserved in
terms of section 366 (1) of Act 56 of 1955, the propriety of the admission of this evidence
was questioned, in view of the fact that appellant was ignorant of his right to decline to
incriminate himself and had not been warned.

Held, that neither section 254 nor 255 of Act 56 of 1955 had any application to the facts of
the case.

H Held, further, that the trial Judge had correctly held that the requirements of the first
proviso to section 244 (1) had been satisfied.

Held, further, however, that, in all the circumstances of the case, the fact that appellant at the
preparatory examination was not informed of his right under section 234 of Act 56 of 1955
rendered his deposition at that examination inadmissible against him at his subsequent trial
on the charge of murdering X.

Held, further, that the conviction and sentence should be set aside.
[zCIz]Case Information

Appeal upon a question of law reserved in the Natal Southern District Circuit Local Division
(HENNING, J., and assessors). The nature
1966 (2) SA p434

of the question reserved appears from the judgment of OGILVIE THOMPSON. J.A.

J. W. Edeling , for the appellant, at the request of the Court: The A appellant's evidence at the
preparatory examination in which accused No. 1 was charged with having attempted to
murder him amounted to a confession. See R v Becker , 1929 AD 167 at p. 171. The
requirements of the first priviso to sec. 244 (1) of Act 56 of 1955 must be satisfied beyond
reasonable doubt in order to render a confession admissible. The B onus of proof in this
regard is upon the prosecution. See R v Gumede, 1942 AD 398 at pp. 408 and 425;R v Jacobs
, 1954 (2) S.A 320 at p. 323.

The question whether a confession made under a statutory compulsion to give information is
admissible was left open in R v Moiloa, 1956 (4) SA 824 at pp. 831 and 834, but see also R v
Dhlamini , 1952 (2) SA C 693. The appellant was entitled to claim the protection of the
privilege accorded in terms of sec. 234 of Act 56 of 1955, but he was not informed of this and
it is clear that he thought that he was under an obligation to tell the magistrate all he knew
and to answer all questions. On the facts the appellant's confession cannot be said to have
been freely and voluntarily made and consequently his evidence at D the preparatory
examination should not have been admitted in evidence against him. The deposition of
appellant at the preparatory examination of accused No. 1 was also not admissible in
evidence against appellant by reason of the provisions of sec. 255 of the Act. Although
appellant was the complainant in the proceedings against No. 1 accused, he is an E
accomplice in respect of the offence with which he was charged and in respect of which he
gave evidence on behalf of the prosecution. In any event it would be contrary to the
principles of criminal procedure to admit the deposition made by appellant on behalf of the
prosecution. at the preparatory examination of accused No. 1 in evidence against F appellant
at his own trial. See secs. 254 (1) and 255 of Act 56 of 1955;Krause v Attorney-General,
1925 S.W.A. 108; R v Mbandeli , 1925 E.D.L. 177; R v Ndabeni , 1959 (2) SA 630; Swift &
Harcourt, The SA Criminal Procedure , pp. 381 and 382.

P. G. Haasbroek, for the State: Die verklaring voor die landdros was bereidwilling deur
appellant afgelê. Die appellant was by sy volle verstand en was nie op onbehoorlike wyse
beïnvloed nie. Die bekentenis G is in die vorm van getuienis voor 'n landdros afgelë. Dit
word aangevoer dat die landdros hier 'n effense ander rol vervul het as wat gewoonlik deur
die artikel bedoel word. Hy het nie geweet dat appellant sou getuienis aflê wat op 'n
bekentenis gaan neerkom in 'n ander saak H nie. Daarom kan nie verwag word dat hy die
nodige waarskuwings vooraf aan die appellant moes gee nie. As dit egter op enigiets dui is dit
die absolute vrywilligheid waarmee appellant die verklaring gemaak het. Die aanklaer wat
aan appellant die vrae gestel het voor die landdros het nie die rol van 'n polisiebeampte
vertolk toe hy dit gedoen het nie. Die blote feit dat 'n verklaring deur 'n beskuldigde gedoen is
in antwoord op 'n vraag van 'n polisiebeampte bewys nie per se dat dit onvrywillig was nie.
SienPera v R., 1906 T.S. 704. 'n Bekentenis wat in die teenwoordigheid van die polisie
gedoen is, maar nie aan die polisie nie, is toelaatbaar. SienSwift & Harcourt, bl. 377, 2de
para. Art. 234 van die
1966 (2) SA p435

OGILVIE THOMPSON JA

Strafproseswet bepaal dat 'n getuie nie hoef te antwoord op vrae waarop die antwoord hom
aan straf sou blootstel of sy goeie naam sou aantas nie. In die onderhawige geval het die
appellant nie op hierdie voorreg aangedring nie en het die landdros hom ook nie gewaarsku
nie. Die A appellant het vooraf 'n verklaring aan die ondersoekbeampte gemaak en die
ondersoekbeampte het hom gewaarsku. Hy moes derhalwe geweet het toe hy by die
voorlopige ondersoek getuienis gee dat hy sodanige privilegie het, want hy was deur die
ondersoekbeampte daarvan verwittig. In ieder geval kon die appellant in sy getuienis
genoegsame feite verstrek het B van die beweerde poging tot moord op hom, sonder om al
die gegewens van 'n ander misdaad te verstrek, maar hy het besluit 'to make a clean breast of
the whole thing', soos die geleerde Regter van die Hof a quo dit aan hom gestel het. 'n
Landdros by 'n voorlopige ondersoek moet die waarskuwing onder bespreking rig volgens
art. 244 (1), maar in my submissie het dit spesifiek te doen met 'n bekentenis, en nie met die
C geval waar die appellant as klaer getuienis in 'n ander saak lewer wat later 'n bekentenis
blyk te wees nie. Art. 234 plaas ook nie sodanige verpligting op 'n hof nie. Dit bepaal slegs
dat geen getuie verplig is om getuienis te lewer wat homself inkrimineer nie. Dis vir die
getuie om op sy reg aanspraak te maak al dan nie. Sien R v Ntshangela en Andere , D 1961
(4) SA 592A te 598H; R v Kweyi , 1957 (3) SA 663E te 664D; Wigmore , 3de uitg., vol. 8,
para. 2269; Phipson , 10th ed., para. 811. Art 255 van die Strafproseswet is nie van
toepassing in hierdie saak nie omdat die voorlopige ondersoek in hierdie betrokke geval met
'n heeltemal ander misdaad te doen gehad het as die verhoor waarby die getuienis as 'n
bekentenis ingehandig was.

Edeling , in reply.

E Cur. adv. vult.

Postea (March 24th).


[zJDz]Judgment

F OGILVIE THOMPSON, J.A.: On 9th December, 1965, appellant was, together with three
others, charged before HENNING, J., sitting with assessors in the Natal Southern District
Circuit Local Division, with having murdered one David Xulu near Ceza, in the district of
Mahlabatini, on 18th January, 1965. The indictment contained an alternative charge of
robbery with aggravating circumstances arising from the same facts as the murder G charge,
and also a further, unrelated, charge of robbery with aggravating circumstances committed on
19th January, 1965. This last-mentioned charge (count 2 of the indictment) was, at the
commencement of the hearing in the Court below, adjourned to a date to be determined by
the Attorney-General. At the trial, appellant was H accused No. 3, while the first accused was
one Eric Hambry. The fourth accused (Mapintshana Nala) was discharged during the course
of the prosecution's case, and the second accused (Boy Shabalala) was found not guilty at the
conclusion of the State's evidence. Appellant and Eric Hambry (No. 1 accused) were both
convicted of murder and, no extenuating circumstances being found, were sentenced to death.

The evidence led at the trial disclosed that on 21st January, 1965 - that is to say, three days
after the murder of David Xulu - Eric Hambry (No. 1 accused) had shot appellant in the
stomach, causing serious injury
1966 (2) SA p436

OGILVIE THOMPSON JA

which necessitated appellant's being taken to the Eshowe Hospital . Upon being discharged
from hospital on 1st February, 1965, appellant - who was by now detained in connection with
the Xulu murder charge - laid A a complaint of attempted murder against Hambry arising
from the shooting on 21st January, 1965. In furtherance of that complaint, appellant on 1st
February, 1965, made a statement to Detective Sergeant Viljoen. On 22nd September, 1965,
a preparatory examination against Hambry in respect of the shooting episode of 21st January,
1965, was commenced at Mahlabatini before the then assistant magistrate of that B town, Mr.
P. J. van der Merwe, and appellant was called as a witness.

Towards the end of the State's case at the trial before HENNING, J., the prosecutor tendered,
as evidence against appellant, a copy of his deposition as given at the above-mentioned
preparatory examination held C against Hambry on 22nd September, 1965. The admissibility
of the deposition being challenged on the ground that it contained a confession, the learned
trial Judge sat alone to hear the evidence, in relation to that issue, of the investigating officer
(Detective Sergeant Viljoen). the interpreter (James Sindane), the magistrate (Mr. van der
Merwe). and of appellant himself. After reserving judgment over a week-end. HENNING, J.,
ruled in favour of the State, at the same time D intimating that he would later file his reasons
for that conclusion. The defence having formally admitted that the magistrate had on 22nd
September, 1965, correctly recorded appellant's testimony, appellant's afore-mentioned
deposition was thereupon admitted in evidence and the State closed its case. Thereafter both
Hambry and appellant gave E evidence in their own defence.

In recording the trial Court's reasons for finding appellant guilty of murder, the learned Judge
placed considerable reliance upon the terms of appellant's above-mentioned deposition. After
sentence of death had been passed, HENNING, J., intimating that he would in any event have
mero F motu raised the matter, acceded to a request by appellant's counsel for the reservation,
in terms of sec. 366 (1) of the Code, of a question of law for the consideration of this Court.
The question so reserved was expressed as follows:
'Whether the deposition of accused No. 3 at the preparatory examination G against accused
No. 1 was correctly admitted in this Court as evidence against accused No. 3, having regard
to the provisions of secs. 234 and 244 of the Act, and to the facts that accused No. 3 was not
warned, before he commenced to make a statement to the police in connection with the
matter, that he was not obliged to make any statement at all which H might incriminate him,
and the absence of any warning at the preparatory examination referred to that he was not
obliged to answer any questions put to him if the answers tended to incriminate him.'

As appears from his subsequently filed reasons for admitting the afore-mentioned deposition
in evidence at the trial. HENNING, J., found the following relevant facts - almost all of
which were, indeed, virtually common cause - duly established, viz:
(a) Both appellant's statement to Viljoen on 1st February, 1965, and his evidence before
the magistrate on 22nd September, 1965.
1966 (2) SA p437

OGILVIE THOMPSON JA
were entirely voluntary, no inducement or compulsion whatever having operated upon
appellant's mind on either occasion.
(b) For the greater part of his evidence before the magistrate, appellant told his own story
in response to introductory A questions from the prosecutor, who had before him the
statement given by appellant to Viljoen on 1st February, 1965.
(c) Although appellant throughout believed that he was obliged to answer all such
questions as were put to him at the preparatory examination, even though such answers might
tend to incriminate him, he was nevertheless - in the words of the learned Judge B - 'quite
prepared to make a clean breast of everything'.
(d) During his testimony at the preparatory examination against Hambry the appellant was
not at any stage informed by the magistrate that he was entitled to refuse to reply to any
question the answer to which might incriminate him.
C (e) While so testifying, appellant did not at any time claim privilege or decline to
answer any question on the ground that his answer might tend to incriminate him.
(f) Appellant had, when giving evidence in the interlocutory proceedings at the trial,
reaffirmed the truth of the content of his earlier deposition before the magistrate.

D While HENNING, J., made no specific findings to that effect, a fair reading of the
evidence given during the interlocutory proceedings by Detective Sergeant Viljoen and by
appellant himself, and of the learned Judge's afore-mentioned reasons, is that:
(i) Although warned by Viljoen on 1st February, 1965, in relation to E the charges of
murder and robbery against himself, appellant received no specific independent warning from
Viljoen that, in relation to his complaint against Hambry, he was not obliged to answer any
questions which might tend to incriminate him;
(ii) that, as a result of Viljoen's warning, appellant had some appreciation that anything he
said might be used against him, F but that he nevertheless voluntarily elected to make the
statement to Viljoen; and
(iii) that appellant's subsequent evidence before the magistrate was in substantial
conformity with that statement.

In my opinion, the enquiry before us should be approached upon these three further premises.

G It is well established that - subject always to contrary statutory provision - evidence given
on a previous occasion will ordinarily be admissible against the deponent in subsequent
proceedings (Phipson , 10th ed., para. 811; Halsbury , 3rd ed., vol. 10, para. 874). In support
of the submission that appellant's deposition was wrongly admitted in the
H Court
below, counsel for appellant sought - with the leave of this Court - to invoke the provisions of
secs. 254 and 255 of the Code. Neither of those sections has, however, any application to the
facts of this case. For, while appellant may well have been Hambry's accomplice in relation
to the robbery charges, he was, quoad the shooting on 21st January, 1965, certainly not an
accomplice of Hambry
'in the commission of the offence alleged in the charge or the subject of the preparatory
examination'
1966 (2) SA p438

OGILVIE THOMPSON JA

as those words are used in sec. 254 (1) of the Code. When deposing before the magistrate on
22nd September, 1965, appellant was giving evidence on behalf of the prosecution against
Hambry in respect of the A offence of assault (by shooting) on 21st January, 1965. He was
not Hambry's accomplice in respect of that offence. In any event, the immunity conferred by
sec. 255 of the Code applies only should appellant be 'thereafter prosecuted for such offence'.

Counsel for appellant's main attack upon the admission of appellant's B afore-mentioned
deposition was based upon the provisions of secs. 244 and 234 of the Code. Emphasising that
appellant was at all material times in custody in relation to the events forming the subject
matter of the charges against him which subsequently came before HENNING, J., and relying
upon the learned Judge's finding that appellant throughout believed that he was obliged to
answer all questions put to him in the C magistrate's court, counsel for appellant submitted
that the State had failed to discharge the onus of proving beyond reasonable doubt that
appellant's confession, as contained in his afore-mentioned deposition, had been freely and
voluntarily made as is required by the first proviso to sec. 244 (1) of the Code. In my opinion,
however, the elements thus relied upon by counsel are insufficient to override the cardinal D
findings of the trial Court that, both in speaking to Viljoen on 1st February, 1965, and in
testifying before the magistrate on the 22nd September, 1965, appellant had acted wholly
voluntarily without any inducement or compulsion having operated upon his mind, and the
further finding that, despite his belief that he was obliged to answer questions E put in Court,
appellant was quite prepared to 'make a clean breast of everything'. The requirements of the
first proviso to sec. 244 (1) were carefully considered by the learned Judge below, and in my
opinion he was correct in holding those requirements to be satisfied.

Subject to a proviso relating to 'an accused called as a witness' and F thus not relevant to this
appeal, sec. 234 of the Code, as amended by sec. 20 of Act 92 of 1963, reads:
'No witness in any criminal proceedings shall, except as provided by this Act or any other
law, be compelled to answer any question which he would on the 30th May, 1961, not have
been compelled to answer, by reason that his answer might have a tendency to expose him to
any pains, penalty, punishment or forfeiture, or to a criminal charge or to degrade his
character:'

G This provision reflects the general principle embodied in the maxim nemo tenetur se ipsum
accusare and has as its object, to cite the words of Best on Evidence , 10th ed., p. 114, the
encouraging of all persons to come forward with evidence in courts of justice by protecting
them, as far as possible, from injury or needless annoyance in consequence of so H doing.
(See also Phipson , 10th ed., para. 612; Cross, Evidence, 2nd ed., p. 231).

The protection thus conferred upon a witness is usually described as a privilege personal to
himself which he must claim (Wigmore , 3rd ed., vol. 8, para. 2268; Halsbury , 3rd ed., vol.
15, para. 761; Cross, op. cit. , pp. 229 et seq; Hoffman, South African Law of Evidence , pp.
244, et seq) . As appears from its above-cited wording, the section itself does not in terms
require a witness to be apprised of his right to decline to answer a question on any of the
grounds mentioned in the section. This manifestly operates to the disadvantage of the
ignorant witness who,
1966 (2) SA p439

OGILVIE THOMPSON JA

ordinarily speaking, will be likely to be unaware of the rights conferred upon him by the
section. Wigmore, op. cit. , para. 2269, says that it is
'plausible to argue that the witness should be warned and notified . . . but that there are
opposing considerations'.

After mentioning these latter, Wigmore continues:


'Nevertheless, it is plain that the old practice was to give such a A warning, when it
appeared to be needed. But, as general knowledge spread among the masses, and the
preparation for testimony became more thorough, this practice seems to have disappeared in ,
so far at least as any general rule was concerned.
In the both the rule and the trial custom vary in the different jurisdictions. No doubt a
capable and painstaking Judge will give the warning, where need appears; but there is no
reason for letting B a wholesome custom degenerate into a technical rule.'

As to the effect of a failure by the presiding judicial officer to apprise the witness of his right
to decline to answer, there is in the English Law the high authority of the Privy Council
decision in R v Coote , 1873 L.R. 4 P.C. 599; 17 E.R. 462, that the absence of a caution from
the Bench does not render inadmissible a witness' incriminating statement sought to be C
adduced against him in subsequent proceedings. Cross, op. cit. , p. 232, citing Coote's case,
states the modern English Law in these terms, viz:
'The Judge will often warn a witness that he is not obliged to answer incriminating
questions but there is no rule of law to this effect, and the fact that the witness was ignorant
of his rights does not prevent the Court from utilising his evidence in the case in which it was
given, D or in subsequent criminal proceedings brought against him.'

Inasmuch as, in matters of evidence, the English law prior to 31st May, 1961, is applicable, it
is plain that, if, for the moment, all consideration of the practice of our own courts be
disregarded, solid foundation exists for the State's contention in the present case that there is
no real duty to warn a witness, and that the absence of any E contemporaneous caution from
the Bench to a testifying witness is irrelevant in relation to the subsequent admissibility
against such witness of an incriminating statement made by him when so testifying.
Furthermore, the State's contention is directly supported by the decision in Rex v Kweyi ,
1957 (3) SA 663 (E) at 664H.

F It is, however, no less plain that, in order to exercise the privilege embodied in sec. 234 of
the Code, the witness must be aware of the existence of that privilege. Having regard to the
composition of our population, the vast majority of those who enter the witness-box are
persons who are likely to be wholly ignorant of the rights conferred by G sec. 234 of the
Code. In the main, even wholly uneducated persons recognise the duty to testify if
subpoenaed, but it is highly improbable that any save a very small percentage of such persons
are aware that they are entitled to decline to answer incriminating questions. We have not yet
reached the stage when, to adapt Wigmore's above-cited words, that general knowledge has
spread among the masses. Dealing with the H question of a witness' ignorance of his rights, it
was said in R v Coote, supra , that
'their Lordships see no reason to introduce, with reference to this subject, an exception to
the rule, recognised as essential to the administration of the criminal law, ignorantia juris non
excusat'.

While recognising that maxim as part of our substantive law, it is - irrespective of what the
position may be in other jurisdictions, and probably because of the composition of our
population - nevertheless the general, and salutary, practice of our courts to inform a witness,
1966 (2) SA p440

OGILVIE THOMPSON JA

whenever the occasion so demands, of his right to decline to answer an incriminating


question. This practice was referred to by CURLEWIS, J., in R v Ramakok , 1919 T.P.D. 305
at p. 308, in the following terms, viz:
A 'Whenever a question is put to a witness which tends to incriminate him, I have always
personally considered it my duty to warn the witness, especially an ignorant Native witness.
Though no case has been cited to us to show what has been the practice in , my experience is
that that is the practice; and that should be done, not, perhaps, as a matter of duty on the part
of magistrates, but as a matter of fair protection to the witness. The magistrate should of his
own accord B intimate to the witness, when he sees that the question is one the answer to
which may tend to incriminate him, that he need not answer it. No case has been cited to us to
show that according to the English practice it is the duty of the judicial officer to do so, but
the cases all go so far as to show that it is the general practice that Judges and magistrates, ex
meru motu , will caution a witness when they see that the question is likely to incriminate
him. Therefore the magistrate against whose decision this appeal is brought is right in saying
that it is not an absolute duty on the part of a magistrate to warn a witness. A witness may
take an objection, or he may waive the right which he has to C answer the question. Though I
am not prepared to say now that it is the duty of the magistrate to do so, I think in every case
the magistrate would be well advised, when he sees that the effect of a question is likely to
tend to incriminate a witness, to immediately warn him that he need not answer the question.
But, unless it is the duty of the magistrate to do so, we cannot say in this case that the
magistrate acted improperly in not warning the witness.'

D The experience mentioned by CURLEWIS, J., is confirmed by that of my Brethren and


myself. There can, I think, be no doubt that, in the forty-seven years which have since
elapsed, the practice of warning thus described by CURLEWIS, J., has been generally
observed in our Courts. The existence of a duty on the part of the presiding judicial officer
thus to warn the witness was - albeit en passant and without E elaboration - recognised by
this Court in Rex v Ntshangela en Andere , 1961 (4) SA 592 (AD) at p. 598H; and, in my
opinion, such a duty should, despite the tenour of the concluding portion of CURLEWIS, J's,
above cited remarks, now be regarded as firmly established. I venture to think that in R v
Kweyi, supra , insufficient regard may have been had to the existence of this duty. I would
add that, in my F view, a complementary duty also rests upon the prosecutor in certain
circumstances - for example, where he proposes to put questions likely to reveal conduct on
the part of the witness which, to the prosecutor's knowledge, will be incriminating - to make
some prior intimation to the Bench of his intentions.

G The above-mentioned duty resting upon a judicial officer is no mere 'technical rule' as
suggested by Wigmore , but - as was correctly noticed by CURLEWIS, J., in the above-cited
passage - nor is it, in my view, an absolute duty in the sense that its non-observance will
always and inevitably render the witnesses' incriminating statement H inadmissible against
him in subsequent proceedings. For example, a trained lawyer giving evidence could hardly
legitimately complain that he had received no caution, even though a conscientious judicial
officer might nevertheless elect to administer a caution even to such a witness.

I accordingly conclude that in our law the rigour of the rule of the English law as propounded
in R v Coote, supra , is qualified by the established rule of practice in our Courts that it is the
duty of the presiding judicial officer to inform a witness of his right to decline to answer an
incriminating question. The effect of non-observance of that rule
1966 (2) SA p441

OGILVIE THOMPSON JA

upon the admissibility in subsequent proceedings of an incriminating statement made by an


uncautioned witness falls, in my judgment, to be determined upon the particular facts of the
case. In any such enquiry, the nature of the incriminating statement and the ascertained, or
presumed, knowledge of his rights by the deponent will always be A important factors.

Applying the above principles to the facts of the present case, the appellant is an uneducated
Bantu who did not have any legal assistance prior to his trial before HENNING, J. It is
impossible to regard such warning as appellant received from Det. Sgt. Viljoen on 1st
February, B 1965, as apprising appellant of his rights under sec. 234 of the Code; and, the
magistrate having admittedly administered no caution whatever while appellant was
testifying at the preparatory examination against Hambry, it is not suggested that appellant
was, at all material times, anything but ignorant of those rights. Prima facie , therefore,
appellant falls well within that class of persons who should, when the C situation arises,
invariably be warned that they are not obliged to answer an incriminating question. When,
however, one also has regard to the nature and ambit of the incriminating statements made by
appellant before the magistrate, they proclaim aloud the patent necessity for such D a
warning. It will be recalled that appellant was, at the preparatory examination against
Hambry, called as the complainant in respect of the shooting episode of 21st January, 1965.
Appellant's afore-mentioned deposition (exh. F at the trial) is by no means restricted to that
episode. The deposition occupies five pages of typescript. The first two pages contain mainly
introductory matter. The third page contains E statements which - at lowest against appellant
- constitute a confession to having participated in robbing Xulu on 18th January, 1965, and
which might well be regarded as implicating appellant in the murder of Xulu on that day. The
fourth page amounts to a confession of the further robbery averred in the postponed second
count of the indictment. Only the fifth page of the deposition specifically relates to the F
shooting on 21st January, 1965.

It is plain that, instead of confining appellant to the shooting incident, the prosecutor caused
him to relate his full - but, quoad the shooting episode, strictly speaking irrelevant, story -
and thereby grievously to incriminate himself in relation to the two robbery G charges. If he
proposed to adopt that most unusual course, the prosecutor should, in my view, have apprised
the magistrate of his intentions so as to enable the magistrate to administer a timeous
warning. However that may be, the magistrate presiding at the preliminary examination
against Hambry must inevitably have been soon alerted to what was happening. For, not only
was he contemporaneously H also presiding at the preparatory examination in connection
with the robbery charges, but the very third sentence of appellant's afore-mentioned
deposition before him was:
'ek is tans 'n verhoorafwagtende te Mahlabatini op 'n aanklag van moord en gewapende
roof'.

Furthermore, the sequence of events as set out in the deposition could leave no possible room
for doubt in the magistrate's mind that appellant was most seriously incriminating himself in
relation to matters not directly relevant to the shooting charge against Hambry.
1966 (2) SA p442

HOLMES JA

Without labouring the point further, it suffices to say that this was pre-eminently and
indubitably a case where the witness ought to have A been warned of his rights under sec.
234 of the Code. The necessity for such a warning is, in my view, in no way lessened by the
circumstances that appellant had seemingly volunteered all to Det. Sgt. Viljoen on 1st
February, 1965, and that, in his testimony in the interlocutory proceedings before HENNING,
J., appellant reaffirmed the truth of the content of his deposition before the magistrate.
Appellant's apparent willingness, as deposed to by him at the trial within a trial, 'to make B a
clean breast of everything' at the preparatory examination cannot be isolated from his belief,
as found by the learned Judge below, that appellant throughout believed that he was obliged
to answer all such questions as were put to him at that examination. While the point must
necessarily remain in the realm of speculation, it may well be that, had C appellant been duly
apprised of his rights to decline to incriminate himself, he would have rejected the, strictly
speaking irrelevant, 'clean breast' approach and confined himself to the relevant
circumstances of the shooting episode on 21st January, 1965. However that may be, applying
the principles outlined earlier in this judgment, I am of opinion that, in all the circumstances
of this case, the fact D that appellant was at the preparatory examination not informed of his
right to decline to incriminate himself renders his deposition at that examination inadmissible
against him at the subsequent trial before HENNING, J., I accordingly conclude that the
learned Judge erred in admitting the deposition.

This conclusion vitally affects appellant's conviction. Had the E deposition being excluded, it
is probable that, like the second accused, appellant would have been discharged at the
conclusion of the State's case. That apart, however, the deposition, once it was admitted,
played - as may readily be appreciated - a dominant role, both in the cross-examination of
appellant and in the trial Court's reasons for convicting him. As was, indeed, fairly conceded
by counsel for the State F in this Court, once it is held that the deposition was wrongly
admitted in evidence, appellant's conviction cannot stand.

For the foregoing reasons:


(i) the question of law reserved is answered in favour of the accused (appellant); and
G (ii) the conviction and sentence of appellant are set aside.
VAN BLERK, J.A., concurred in the above judgment.

H HOLMES, J.A.: This is a case in which alleged thieves fell out to the point of one of them
shooting the other in the stomach. It happened on a Thursday. Aggrieved by this lawlessness
the wounded man laid a charge with the police, and later gave evidence as the complainant at
a preparatory examination against his former associate, who was now accused with having
attempted to murder him. In the course of his evidence the complainant described in detail his
own part in crimes on which the two of them had been engaged, namely the robbery of a taxi
driver on the Monday before the shooting, and the robbery of a storekeeper on the Tuesday.
He had not been warned by the magistrate that
1966 (2) SA p443

HOLMES JA

he was not obliged to say anything which might expose himself to prosecution. Nor had he
claimed any privilege under sec. 234 of the Code.

A Later the two men were charged in the Supreme Court with the murder of the taxi driver
(who died from his injuries), alternatively with having robbed him. At this prosecution the
trial Judge (sitting without his assessors in a trial within the trial) ruled as admissible against
one of them the evidence which he had given as the complainant at the aforementioned
preparatory examination. It amounted to a confession, at least in regard to the alternative
charge of robbery. Both accused B having been convicted of the murder of the taxi driver and
sentenced to death, the admissibility of the confession was reserved as a question of law at
the instance of the accused who had been the afore-mentioned complainant. It was based, in
part, on the absence of a warning by the magistrate to him at the preparatory examination that
he C was not obliged to give evidence which might expose himself to prosecution. I shall
refer to him as the appellant.

The Criminal Code deals with the non-compellability of a witness in criminal proceedings to
answer a question the reply to which might have a tendency to expose him to a criminal
charge, etc.; see sec. 234. It is plain that the privilege is his, and he can waive it. But waiver
D postulates knowledge of the right. Hence in this country there has grown up a rule of
practice in terms of which the judicial officer warns the witness of his right not to answer
such a question. And, as a matter of fairness, the warning is also given when the witness
seems about to give such evidence without a question having been specifically directed E
thereto. This is consistent with what I have just said, because in general all the evidence of a
witness is in reply to questions, even if sometimes he says more than he is asked, or at some
point begins to tell his own story, with counsel maintaining the flow with an occasional 'And
then?' - as appears to have happened at this preparatory examination.

A somewhat similar practice used to exist in


F 'But, as general knowledge spread among the masses, and the preparation of testimony
became more thorough, this practice seems to have disappeared in England, so far at least as
any general rule was concerned.'

Wigmore on Evidence , 3rd ed., vol. VIII, p. 400. In , per contra , the masses still include
humble Bantu bemusedly endeavouring to adjust an untutored outlook to the complexities of
civilisation.

G The practice was recognised in this country in general terms nearly 50 years ago by
CURLEWIS, J., in Rex v Ramakok , 1919 T.P.D. 305 at p. 308; but at that early stage the
learned Judge felt unable to go so far as to hold that it imposed a duty on the judicial officer,
with non-observance H amounting to irregularity. Since then, however, the practice has
become widely recognised and firmly established. To hold that there is no duty to give the
warning on the ground that witnesses can claim the privilege under sec. 234, would largely
set at naught the intended protection of that section, since most witnesses in criminal
proceedings in this country would be ignorant of the privilege. In these circumstances,
although JENNETT, J., in R v Kweyi , 1957 (3) SA 663 (E) , felt unable to hold that the
practice imposed a duty, I consider that it is now timeous and proper for this Court to do so.
Indeed in R . v.
1966 (2) SA p444

HOLMES JA

Ntshangela en Andere , 1961 (4) SA 592 (AD) , this Court in passing used the word 'plig'; see
the opening sentence of the last paragraph on A p. 598. By way of analogous development,
this Court in 1948 recognised a cautionary rule of practice, going beyond statutory
requirement, in regard to the testimony of an accomplice, non-observance of which is
regarded as an irregularity.

To sum up so far: In this country there is a general rule of practice in terms of which a
judicial officer has a duty to warn a witness in B criminal proceedings that he is not obliged
to give evidence which might have a tendency to expose him to a criminal charge. The duty
arises whenever it appears that the witness might well be about to give such evidence,
whether or not a specific question has been directed thereto.

C The next question is whether such evidence given in the absence of judicial warning is
admissible on the prosecution of the witness. As to that, the pragmatist may say that the
guilty should be punished and that if the accused has previously confessed as a witness it is in
the interests of society that he be convicted. The answer is that between the individual and the
day of judicial reckoning there are interposed certain checks and balances in the interests of a
fair trial and the due D administration of justice. The rule of practice to which I have referred
is one of them, and it is important that it be not eroded. According to the high judicial
traditions of this country it is not in the interests of society that an accused should be
convicted unless he has had a fair trial in accordance with accepted tenets of adjudication. E
Furthermore, it is in the interests of society and the due administration of justice that persons
should feel free to come forward as witnesses, without the haunting fear of prosecution in
regard to offences which they might reveal in the course of their testimony. I therefore
consider that this Court should hold the position to be as F follows: Non-observance of the
aforesaid duty is an irregularity which ordinarily will render the incriminating evidence
inadmissible in a prosecution against the witness.

There might be cases in which, depending on the facts, that effect would not follow, for
example if it were to appear that there was no resultant unfairness to the accused because he
knew all along what his rights were.

G Sec. 292 of the Criminal Code, as amended in 1963, imports English law as at 30th May,
1961, in regard to the admissibility of evidence in any case not provided for by the Code or
any other law. But there is no English law in point, for there is no corresponding English rule
of practice imposing a duty on judicial officers, with non-observance H amounting to an
irregularity. The position in South Africa is governed by sec. 234 of the Code and the
correlative rule of practice involving a duty.

In the present case the appellant is a Bantu who gave his evidence in Zulu at the preparatory
examination held in the rural district of Mahlabatini in Zululand. And he was not at that stage
legally represented. Prima facie it must have appeared that he did not know that he was not
obliged to give evidence which might tend to expose him to a criminal charge. This was
confirmed at the trial within the trial to determine admissibility, for he there said (and the trial
Judge
1966 (2) SA p445
HOLMES JA

believed him) that when he was testifying as the complainant at the preparatory examination
he thought he was obliged to answer all questions, and to tell everything, including the
making of statements which might tend to incriminate him. Doubtless this contributed to the
fact, as found, that he was
A 'quite prepared to make a clean breast of things because he had been unlawfully shot'.

Furthermore, it cannot be said that the magistrate had no reason to suppose that the witness
was about to incriminate himself. Early in his testimony he said that he was an awaiting trial
prisoner on charges of B murder and robbery. That must have put the magistrate on his guard
that the witness might well be about to incriminate himself - as indeed he soon did,
grievously and in detail, and still uncautioned.

To sum up: The magistrate ought to have warned the appellant, in the C course of his
testimony as a witness at the preparatory examination, that he was not obliged to give
evidence which might have a tendency to expose him to a ceriminal charge. In the present
case the non-observance of that judicial duty was an irregularity rendering the confession
inadmissible at the appellant's subsequent prosecution.

Counsel for the State rightly conceded that, without the confession, the D conviction could
not stand, either on the main charge of murder or on the alternative charge of robbery.

In the result, in my view the question of law reserved should be answered in favour of the
appellant, and his conviction and sentence should be set aside.

E
S v SHABALALA 1986 (4) SA 734 (A)
1986 (4) SA p734

Citation 1986 (4) SA 734 (A)

Court Appellate Division

Judge Corbett JA,Trengove JA,Smalberger JA,Nicholas AJA andNestadt AJA

Heard May 23, 1986

Judgment August 28, 1986

Annotations Link to Case Annotations

B
[zFNz]Flynote : Sleutelwoorde
Criminal procedure - Evidence - Admissibility of - Evidence of behaviour of police dog in
identifying scent of an accused - Such evidence inadmissible - Probative value C thereof too
tenuous - But exclusion of such evidence not absolute - Where untrustworthiness of such
evidence is sufficiently reduced, the actions of the dog would become relevant and evidence
thereof admissible - Adequate foundation to be laid before such evidence can be held to be
relevant and admissible.
Criminal procedure - Evidence - Admissions made by accused during questioning under s
115 of Act 51 of 1977 - D Record of proceedings before magistrate in terms of s 119 handed
in as an exhibit under s 122 (4), read with s 235 (1), of Act 51 of 1977 - Although accused
cannot object to proof of such record, he is entitled to impugn its voluntariness and challenge
its weight - Such is the position whether admissions in record are formal admissions under s
220 of the E Act or merely informal admissions made in terms of s 121 (2) (b) - Where
admissions impugned on the grounds of alleged duress, a causal connection between such
duress and the statement must be shown.
[zHNz]Headnote : Kopnota

The decision in R v Trupedo 1920 AD 58 held that evidence of the behaviour of a police dog,
which had tracked down the F accused after being given the scent of certain footprints at the
scene of the crime, was inadmissible mainly because hearsay evidence was involved and its
probative value was too tenuous. The judgment did not rest simply on a factual finding
concerning the reliability or otherwise of the particular dog whose actions were in issue: it
decided that, in principle, evidence of the conduct of dogs, in identifying an accused person
by scenting, is inadmissible. It does not follow however G that R v Trupedo is to be taken as
the final pronouncement on the matter in all circumstances. Despite the objection to the
evidence based on its hearsay nature, its exclusion is not absolute. The principal reason for its
exclusion is the untrustworthiness of the evidence. Where, therefore, this element is
sufficiently reduced, even though it be not removed, the actions of the dog would become
relevant and evidence thereof admissible. It is not possible to define what would H have to be
established to achieve this. However, mere proof that the dog came from stock having special
powers of discrimination between the scent of one human being and another, that he was of
pure blood and possessed these qualities himself and that he had been specially trained in
tracking will not suffice. On the other hand, additional evidence explaining "the faculty by
which (these) dogs... are... able to follow the scent of one human being, I rejecting the scent
of all others", would suffice. R v Trupedo (supra ) is therefore binding and the evidence of
the behaviour of dogs concerning their scenting ability is inadmissible unless a proper
foundation for it is laid.

Admissions made by an accused in a statement made during questioning of the accused in


terms of s 115 of the Criminal Procedure Act 51 of 1977 during plea proceedings before a
magistrate in terms of s 119 of the Act can be proved at the subsequent trial in the Supreme
Court by handing in the record of the proceedings before the magistrate as an exhibit under s
J 122 (4), read with s 235 (1), of Act 51 of 1977. Having regard to these legislative
1986 (4) SA p735

provisions, there can be no objection to the record of the A proceedings before the magistrate
being proved. At the same time, however, it is clear that such statement of the accused in the
record does not absolutely bind the accused: he is entitled to impugn the voluntariness of the
statement and thus challenge its weight. This is so, irrespective of the exact status of the
admissions forming part of the statement, ie whether they are properly to be regarded as
formal ones under s B 220 of the Act, having the effect of dispensing with the need for
evidence to prove the facts in question, or, though made coram curia in terms of s 121 (2) (b)
, merely informal admissions forming part of the evidential material which becomes available
to be used against the accused. Where the admissions are impugned on the grounds of alleged
duress, there must, naturally, be a causal connection between the alleged duress and the
making of the statement containing the admissions. This will not be assumed. C
[zCIz]Case Information

Appeal from a conviction and sentence in the Natal Provincial Division (KRIEK J). The facts
appear from the judgment of NESTADT AJA.

N M Fuller for the appellant at the request of the Court: The circumstantial evidence upon
which the Court relied is not sufficient to convict the accused because the proved facts were
D such that they do not exclude every reasonable inference from them save the one drawn by
the Court. R v Blom 1939 AD at 202 - 203. In the absence of proof beyond reasonable doubt
that the accused had no prior knowledge of the house and the alleged crime, any pointing out
at the deceased's house is not sufficient to convict the accused because such fact does not
exclude every reasonable inference save the one sought to be E drawn by the State. In the
premises, the evidence of the pointing out was not such that, beyond reasonable doubt, it was
the only inference that could be drawn in that the accused had knowledge of the exact
position of an implicatory spot because he took part in the commission of the offence. S v
Gwevu and F Another 1961 (4) SA at 537E - G.

The evidence of the pointing out by the dog was inadmissible, alternatively no reliance
should be placed upon it because such pointing out did not exclude every reasonable
inference save the one sought to be drawn by the State. The judgment in R v Trupedo 1920
AD 58 was binding upon the trial Court and G consequently the Court erred in admitting
such evidence. Such evidence is inadmissible because it is hearsay evidence and does not fall
within the ambit of any of the recognised exceptions to the hearsay rule. The trial Court held
that a proper foundation for the reception of such evidence would include evidence as to the
handler's qualifications and H experience. In the present case the only evidence on this aspect
in regard to Sgt Collen is that he was a dog handler and that he had handled the dog "Tilly"
for a period of between 15 and 21 months. There was no evidence of his qualifications or
other experience. If admissible, such evidence should not be relied upon because it would be
dangerous to do so in the I absence of more scientific investigation into its reliability.

B G Morrison for the State: The circumstantial evidence upon which the Court a quo relied
was sufficient to convict the appellant. The inference that the appellant commited the crimes
in counts 1,2 and 3 is consistent with all the proved facts and the proved facts exclude every
reasonable inference save this inference. R v Blom 1939 AD at 202 - 203. Each proved fact J
must not be taken in isolation. It is not each proved fact
1986 (4) SA p736

A which must exclude all other inferences; the facts as a whole must do so. R v De Villiers
1944 AD at 508. The compound result of all of the proved facts points to the conclusion that
the appellant committed the crimes in question. If the Court erred, it erred in the appellant's
favour by adopting an over-cautious approach towards the s 119 proceedings.

B The appellant's defence was an alibi. Hiemstra Suid-Afrikaanse Strafproses 3rd ed at 218
(Notes). It is trite law that, where an alibi is raised, there is no burden on the accused to prove
his alibi. The onus rests on the State to prove his alibi is false. R v Biya 1952 (4) SA at 521D
- E; R v Hlongwane 1959 (3) SA at 340 - 1; Hiemstra (op cit at 219); S v Nunu 1979 (1) PH
H14. It was proved beyond any reasonable C doubt that the appellant's alibi was false. The
effect of the falseness of an alibi on an accused's case is to place him in a position as if he had
never testified at all. See R v Dhlomo 1961 (1) PH H54. What one is left with after the
rejection of the appellant's alibi is the following: (i) The fact that the blood belonging to the
same group as the blood D grouping of both the deceased and her husband and different from
the appellant's own blood group was found on the appellant's overall; (ii) the fact that a hair
similar to the deceased's hair was found on his overall; (iii) the pointing out of various spots
depicted in the E series of photographs in exh E by the appellant to Lieutenant Myburgh; and
(iv) the "identification" of the appellant by the police dog.

E The trial Court found that it was satisfied that the appellant could only have acquired the
knowledge demonstrated by the pointing out by having been involved in the commission of
the crimes and not by having acquired the knowledge from someone else. The trial Court's
finding in this regard is correct. Furthermore, the evidence of the pointing out by the F
appellant was satisfactory in every respect and beyond suspicion. S v Gwevu 1961 (4) SA at
537E - G. Furthermore no evidence of accompanying statements during the pointing out was
led. S v Magwaza 1985 (3) SA at 39F - I. The appellant's allegations that he had been
assaulted were false.

As to the pointing out of the appellant by the dog, the Court a G quo was correct in saying
that this evidence was part of the evidential material. However the Court a quo did not attach
very much weight to this evidence. This evidence merely forms another link in the chain of
circumstantial evidence inplicating the appellant and for that reason it is legally H relevant. In
R v Trupedo 1920 AD 58 the learned CHIEF JUSTICE excluded the evidence of a dog's
tracking ability on the basis of irrelevance. See at 62, 63. In S v Moya 1968 (1) PH H148
JACOBS J stated that until such time as Trupedo's case was reconsidered evidence of this
nature was inadmissible. Evidence of the behaviour of dogs is not per se inadmissible as
stated in the Moya case. In Trupedo's case (at 62) it was stated that I there are cases in which
inferences may be quite properly drawn from the behaviour of animals. Cf Hiemstra Suid-
Afrikaanse Strafproses 3rd ed at 428; Schmidt Bewysreg 2nd ed at 357 and see also
Hoffmann and Zeffertt South African Law of Evidence 3rd ed at 19 where the learned authors
state, inter alia , that it would be wrong to regard R v Trupedo as laying down a general rule
that evidence of tracking by dogs is always J inadmissible. See also L H Hoffmann "Those
Dogs Again" 1974 SA Law Journal vol 91 at 237 - 240. The main objection to the evidence
of
1986 (4) SA p737

the behaviour of dogs fell away when the jury system was A abolished in . The other
objection also falls away once a proper foundation is laid for the reception of this type of
evidence. The guidelines suggested by the trial Court ought to be sufficient to satisfy a court
that the evidence is reliable. As regards the contention that this evidence is hearsay evidence,
the approach towards this type of evidence in B the American case of Terrell v State , cited
by the Court a quo , is logical, ie that the dog's actions are predictable if he has been properly
trained and the trail has been adequately followed. It is the trainer (the dog handler in casu )
who should be questioned to see if the dog was properly trained and the trail followed
correctly, for if this had been done the C dog's thoughts, mannerisms and such need not be
looked into and if this foundation is not laid then the evidence is excluded. The dog is merely
used as an instrument and the manner in which it is used and the reliability of the instrument
will appear from the dog handler's evidence. In casu , a proper foundation was laid for the
reception of this D evidence.

The inconsistency of the appellant's conduct during the period sketched by the trial Court was
insufficient reason for the trial Court to disregard what the appellant said during the s 119
proceedings even if the sequence of events was "rather strange". In casu the appellant
pleaded guilty to the charges put to him in terms of s 119 of Act 51 of 1977. After the Court
questioned the appellant in terms of s 112 of Act 51 of 1977, E the pleas were altered to not
guilty in terms of s 113 of Act 51 of 1977. In the course of the questioning the appellant
however made numerous admissions which remained standing in terms of s 113 of Act 51 of
1977. Their weight as evidence could, however, be attacked. See S v Sesetse en 'n Ander 1981
(3) SA at 376B; S v Tsankobeb 1981 (4) SA at 628A - C. In casu F there could not have been
any mistake on the part of the appellant when he was asked to plead in terms of s 119. The
nature of the proceedings was carefully explained to him and the case for the State was
outlined by the prosecutor. The only question to be decided is whether the appellant was
unduly influenced or assaulted to plead as he did. There is not an G iota of truth in his
allegations that he was assaulted by the police. The appellant did not make the admissions
embodied in the s 119 proceedings by mistake or under duress. The admissions ought
therefore to be taken into account in determining the appellant's guilt. If they are taken into
account, the admissions are proof beyond any reasonable doubt H that it was the appellant
who broke into the deceased's house and attacked both the deceased and her husband. This
Court ought to apply the provisions of s 322 (1) (b ) of Act 51 of 1977 in this regard. Should
this Court hold that the s 119 proceedings were rightly disregarded, the circumstantial
evidence still allows only one inference and that is that the I appellant committed the crimes
in question.

As to the question of whether extenuating circumstances were present, see S v Nell 1958 (2)
SA at 580B - D; S v Malinga and Others 1963 (1) SA at 695; S v Ceaser 1977 (2) SA at
352H - 353A; S v Bowers 1971 (4) SA at 649A - E; S v Mkhize 1979 (1) SA at 463G; S v
Mdletshe 1978 (4) SA at 77G; and S v Ngoma 1984 (3) SA at 673G - I.

J Fuller in reply.
1986 (4) SA p738

NESTADT AJA

A Cur adv vult .

Postea (August 28).


[zJDz]Judgment

NESTADT AJA: At about 2.30 am on Sunday, 16 December 1984, an B intruder, by


removing a pane of glass from the bathroom window frame and thereafter climbing through
the resultant opening, gained access to the house of Mr and Mrs Allen. They, aged 34 and 29
respectively, lived in a residential suburb of Pietermaritzburg. Armed with a knife or similar
instrument, he entered their bedroom. He approached the wife and, as she lay in bed, stabbed
her in the left forearm, right shoulder and C left breast. The husband, awakened by her
screams, jumped out of bed and rushed at the figure that he saw. It retreated out of the
bedroom. As Mr Allen pursued it, he too was stabbed several times; in particular in the left
hand, the left forearm and, superficially, in the chest. The assailant fled back into D the
bathroom and escaped through the window by which he had entered. Mrs Allen was taken to
hospital but died shortly after her admission there. On post mortem examination it was found
that her left lung had been punctured; the wound involved had a penetration of 17 cm. It,
together with the loss of blood resulting from the injury to the right shoulder, was the cause
of death. Mr Allen, consequent on treatment at the hospital, recovered.

E It was these events that led to the trial of appellant before KRIEK J and assessors, in the
Natal Provincial Division, on three charges, viz (i) housebreaking with intent to rob; (ii)
murder and (iii) attempted murder (of Mr Allen).

The State case was that appellant was the intruder and F perpetrator of the assaults. In
seeking to prove this, reliance was not placed on the evidence of Mr Allen, who, though an
eye-witness to the occurrence, was not able to identify the attacker. All he could say was that
the person he saw had the build of a male of average height, that he was dark-skinned and
that he was wearing dark clothing. Nor was G there any evidence of fingerprints having been
found in or around the house. What the prosecution rested on was, in summary, the
following: (i) The finding by the police of what was said to be one of appellant's canvas shoes
(referred to as sandshoes) in, and the other just outside, the house. (ii) The fact of his having,
when he appeared in a magistrate's court on H Thursday, 20 December 1984 in terms of s 119
of the Criminal Procedure Act 51 of 1977, pleaded guilty, coupled with an incriminating
account by him of how he had committed the crimes. (iii) The pointing out to the police, by
appellant, of the Allens' house, together with certain places outside and in it. (iv) The
presence on the overall which he was found to be I wearing when arrested on Monday, 17
December (the day following the occurrence) of (a) blood of the same groupings as that of
deceased and her husband, and (b) a hair similar to one from deceased's head. (v) The giving
of an alleged false explanation as to his whereabouts on the night in question.

I deal in due course with appellant's evidence relevant to each of these matters. Suffice it at
this stage to say that, in J support of his plea of not guilty before the trial Court, he denied
that it was he who committed the
1986 (4) SA p739

NESTADT AJA
crimes. He testified that, though he had on the Saturday (15 A December) done some casual
work at a house adjoining theirs, he had never entered that of the Allens; he had spent the
night of 15 - 16 December in a hut situate on a construction site in the vicinity.

The trial Court, for reasons which will appear, rejected appellant's alibi defence. He was,
accordingly, found guilty B but, seeing, so it was held that neither an intent to rob (nothing
was stolen) nor to murder (Mr Allen) had been established, the convictions on counts 1 and 3
were, respectively, of housebreaking with intent to commit an offence unknown, and assault
with intent to do grievous bodily harm. On each of these he was sentenced to two years'
imprisonment. No extenuating circumstances having, in relation to the conviction C of
murder, been found, he was sentenced to death on count 2.

This is an appeal against such convictions and, with leave of this Court, also against the death
sentence. It will be convenient to consider, separately, each of the categories of D evidence to
which reference has been made.

I commence with that of the sandshoes ((i) above). On his arrival at the scene at about 4 am
on 16 December, Lieutenant Upton, of the Alexandra Police Station, found one in the
bathroom and the other lying next to the outbuildings of the premises. It is plain that they had
been worn by the intruder E (who had lost them, probably as he fled). Proof, therefore, that
they were appellant's would constitute damning evidence against him. Though he did not
dispute the State evidence that he had, on the Saturday, been wearing shoes of a similar kind
and colour (which in fact fitted him), he denied that they were his.

The State sought to establish the affirmative by means of the F following evidence. On
Tuesday, 18 December, appellant was one of six persons who were lined up in a row, one
behind the other, in the yard of the police station where he was being held in custody. The
one sandshoe, which had been retrieved outside the house and which had not been handled by
anyone subsequent thereto, save that it had been sealed in a plastic bag by the police, was
produced and given by Detective Sergeant G Collen to a dog to sniff. It was no ordinary dog.
It was a thoroughbred English bloodhound, known by the name Tilly. This type of breed
possesses extraordinary powers of smell. In the words of a Mr Pead, a professional dog
trainer of 20 years' experience (who was called by the State), "they think with their nose";
they have "high level nose power". They can, accordingly, be trained to track down persons.
This is possible H because they are able to identify a scent which is exuded from the body
and becomes impregnated in what is worn. Tilly had received such training. This took place
at the police dog school in Pretoria . At the end of an initial period of six months, she was
subjected to certain tests. They included tracking and scent discrimination. The latter (which,
for I present purposes is, I think, the important one) consisted of the dog having to identify,
from five aluminium pipes, each of which had been handled, not more than three hours
before, by a particular person (different in each case), the one which "belonged" to the person
whose handkerchief or other item of clothing had been given to the dog to sniff. This type of
test was then repeated (though whether with five other persons is J not clear).
1986 (4) SA p740

NESTADT AJA

A Tilly's identification was, on both occasions, correct so that she obtained what is called an
"A" certificate. Three months later, having in the meantime been given "praktiese werk"
outside the school, she returned for a second course at the end of which she underwent trials
of a similar kind save that this time what was given her to sniff had been handled B between
24 and 48 hours before. Again, she made no mistake in her identifications of the pipes in
question. She then graduated with a "B" certificate. In the period of one and a half to two
years since then, she had been used by the police to track and identify suspected criminals.
She had never been C proved to be wrong. On the contrary, in a number of cases where, there
being additional evidence, prosecutions had followed, convictions had resulted. Collen had
taken control of her in the fifth month of the first session and had been her dog master since
then. Having sniffed the sandshoe, Tilly, as she had been trained to do, walked down the one
side of the parade. Having reached the last person, she proceeded round the D back of him
and began to move forward on the other side towards the front, at the same time sniffing each
person she passed. When she reached appellant, standing in place No 5, she put her front
paws on his shoulders and barked. This indicated that his scent corresponded with that which
had been smelt in the sandshoe. The procedure was twice repeated after appellant E had
chosen different positions. The result, however, was the same. Each time the paw of
suspicion was pointed at appellant.

In his evidence, appellant disputed that the parade had been fairly conducted. He alleged, in
effect, that shortly before it, the dog had been brought into contact with him and that, F
during the identifications, she had been prompted. Collen's denial of these irregularities was
accepted by the trial Court. In my view, correctly so. The matter, accordingly, fell to be
decided on the State version as set out above. It raised a problem which has engaged the
attention of our Courts on a number of previous occasions, viz whether this type of evidence
G is admissible. In R v Trupedo 1920 AD 58, following R v Kotcho 1918 EDL 91 and R v
Adonis 1918 TPD 411, it was held it was not. Here, too, evidence of the behaviour of a police
dog, which had tracked down the accused, after being given the scent of certain footprints at
the scene of the crime, was in issue. Three reasons for its exclusion are given. If the dog be H
regarded as the real witness, hearsay evidence was involved. The dramatic nature of the
testimony might cause juries to attach a dangerously exaggerated importance to it. But the
main one, as I read the judgment, is that its probative value being too tenuous, it was not
relevant. Thus INNES CJ, having observed (at 62) that "a fact is relevant when inferences can
be properly drawn from it as to the existence of a fact in issue", goes on to say (at 63 - 4):
I "But to draw inferences from the actions of a trailing hound as to the identity of a
particular individual is... to enter a region of conjecture and uncertainty. We have no
scientific or accurate knowledge as to the faculty by which dogs of certain breeds are said to
be able to follow the scent of one human being, rejecting the scent of all others... The whole
experiment... contains too great an element of uncertainty to justify us in drawing inferences
from it in the course of legal proceedings; and evidence of the behaviour of the dog is J
therefore inadmissible."
1986 (4) SA p741

NESTADT AJA

Despite the (usual) clarity of the CHIEF JUSTICE'S words, the A ambit of the ratio of
Trupedo's case has given rise to some controversy. A number of writers have suggested that it
does not lay down a general rule that evidence of tracking by dogs is per se inadmissible; the
ruling had to be viewed in the context of the facts of that particular case and especially the
inadequacy of general scientific knowledge on the subject in B 1919; relevance, being a
matter of degree, more convincing evidence, including modern, technical information about
the scenting ability of dogs and their training, may justify its admissibility, leaving only the
weight of the evidence in issue. (See May South African Cases and Statutes on Evidence 4th
ed para 323; Schmidt Bewysreg 2nd ed at 356; Hiemstra Suid-Afrikaanse Strafproses 3rd ed
at 428; Barrie 1967 C Codicillus at 44, and in particular L H Hoffmann "Those Dogs Again"
(1974) 91 SALJ at 237.) Support for this approach is the persuasive authority of decisions by
Courts in a number of overseas countries in which this type of evidence is now admitted. The
position in the United States is summed up in American Jurisprudence 2nd ed vol 29 sv
"Evidence" para 378 as D follows:
"There has been considerable uncertainty in the minds of the Courts as to the reliability of
dogs in identifying criminals and much conflict of opinion on the question of admissibility of
their actions in evidence. A survey of the cases, however, reveals that most Courts in which
the question of the admissibility of evidence of trailing by bloodhounds has been presented
take the position that upon a proper foundation being E laid by proof that the dogs were
qualified to trail human beings, and that the circumstances surrounding the trailing were such
as to make it probable that the person trailed was the guilty party, such evidence is admissible
and may be permitted to go to the jury for what it is worth as one of the circumstances which
may tend to connect the defendant with the crime."

(See, too, Wigmore on Evidence 3rd ed vol 1 para 177.) It has also been admitted in Scotland
(Patterson v Nixon 1960 SC (J) F 42), Northern Ireland (R v Montgomery 1966 NI 120 which
is criticised by F H Newark "What the Dog Said" vol 82 LQR 311 at 312) and by the New
Zealand Appeal Court (R v Lindsay 1970 NZLR 1002), the British Columbia Court of Appeal
(R v Haas (1962) 35 DLR (2d) 172) and in England (R v Webb 1954 Criminal LR 49).

The Court a quo adopted this line. Motivated, no doubt, by the G fact that the evidence had
not been objected to, the question posed by it was not whether it was admissible but "what
weight, if any, can be attached to (it)". The conclusion arrived at was that:
"provided a proper foundation had been laid, evidence that a dog which was given the scent
of some object chose one person H from among a group of persons as being associated with
that object, is part of the evidential material which a court must have regard to when
considering the inference to be drawn from the totality of the evidence led during the trial...
(W)hether it makes a valuable or an insignificant contribution to the totality of the evidence
will depend upon the circumstances of each case and the strength of the foundation which
was laid."

A proper foundation was defined as including evidence as to:


I "(a) the handler's qualifications and experience;
(b) the nature and duration of the training undergone by the dog;
(c) the nature of tests undergone by the dog before it 'qualified' and the results of such tests;
(d) the dog's experience in doing this kind of work;
(e) the dog's general skill and reliability, for example whether or not it had ever been
proved to have been wrong;
J (f) the scenting ability of the breed to which the dog belongs;
1986 (4) SA p742

NESTADT AJA
A (g) the general basis for the suggestion that dogs generally, or dogs of a particular breed,
have either an inborn scenting ability or a scenting ability acquired by training;
(h) the conditions under which the identification was made".

On the facts deposed to by Collen and Pead, it was held that such foundation had been laid
for the reception of the evidence, which
B "justifies the conclusion that generally speaking (but not necessarily invariably) the
scenting ability of an experienced and properly trained dog is reasonably reliable".

The result was a finding that "Collen's dog connected the accused with the sandshoes",
although, according to the judgment, it had no "decisive effect" on the verdict in the C sense
that it had not "tipped the scales one way or the other".

It would seem that KRIEK J, in his careful and thorough judgment, did not go to the length of
concluding that the sandshoe was appellant's. Nevertheless, he did give the evidence of the
behaviour of the dog towards appellant, weight. D The question is whether this constituted an
unjustified departure from R v Trupedo , based on an unwarranted limitation of the ratio in
that case. No doubt, the elevation of a particular decision on the relevance of evidence to a
general rule has to be guarded against. Whether evidence is capable of inducing rational
persuasion obviously depends on its probative E force. And this can only be measured by a
consideration of the facts of each case. Generally, only a pronouncement on law can
constitute a ratio decidendi . (Hahlo and Kahn The South African Legal System and its
Background at 260). "Decided cases are... of value not for the facts but for the principles of
law which they lay down" (per CENTLIVRES JA in R v Wells 1949 (3) SA 83 (A) at 87 - 8).
Nevertheless, when the decision is that F from certain facts certain legal consequences
follow, it is binding in any case raising substantially similar facts. (Shepherd v Mossel Bay
Liquor Licensing Board 1954 (3) SA 852 (C) at 861A.) Thus one that evidence is relevant
may lay down criteria that can guide, or even be authoritative, in subsequent cases. (Joubert
Law of , sv "Evidence", G vol 9 para 397 at 216.) It seems to me that, properly interpreted, R
v Trupedo is an example of the latter. This was, in effect, the view taken by JACOBS J, as he
then was, in S v Moya 1968 (1) PH H148 (GW) and I agree with it. The judgment of INNES
CJ did not rest simply on a factual finding concerning the reliability or otherwise of the
particular dog whose H activities were in issue. In my view, it decided that, in principle,
evidence of the conduct of dogs, in identifying an accused person by scenting, is
inadmissible. The approval of R v Kotcho (supra ) and particularly the mention therein of the
need for legislation if this sort of testimony is to be admitted, makes this clear.

It does not follow that Trupedo's case is to be taken as the final pronouncement on the matter
in all circumstances. Despite I the objection to the evidence based on its hearsay nature, its
exclusion is not absolute. It is still necessary to determine the parameters of the principles to
be extracted from the decision. To do this, it is legitimate, and necessary, to look at the
reason(s) underlying it (Pretoria City Council v Levinson 1949 (3) SA 305 (A) at 317). As
already indicated, the principal one was the (extreme) untrustworthiness of the J evidence.
Where, therefore, this element is sufficiently reduced, even though it be not removed, the
1986 (4) SA p743

NESTADT AJA

actions of the dog would become relevant and evidence thereof A admissible. It is not
possible to define what would have to be established to achieve this. However, it is apparent
from the judgment that mere proof that the dog came from stock having special powers of
discrimination between the scent of one human being and another, that he was of pure blood
and possessed B these qualities himself and that he had been specially trained in tracking
(being certain "safeguards" applied by those American Courts which admit this type of
evidence), will not suffice (see R v Trupedo at 61 - 2). On the other hand, additional evidence
explaining "the faculty by which (these) dogs... are... able to follow the scent of one human
being, rejecting the scent of all others", would suffice. C Whether the same applies to certain
cases involving less convincing evidence is dealt with in what follows.

This being the broad effect of R v Trupedo , the next question, before returning to the facts, is
whether it should, as was tentatively submitted on behalf of the State, be departed from. In
my view not. The abolition of the jury system is not a good D ground for so doing. The undue
prejudice to the accused that was feared might result was but a subsidiary part of the
reasoning. What was regarded as significant (at 61) was that no English authority favoured
the admissibility of this sort of evidence. It would seem that, save for the isolated case of R v
Webb (supra ) (a decision of the Hertfordshire Quarter Sessions, E the brief report whereof
gives no reasons for the reception of the evidence) that is still the position. INNES CJ though,
as indicated, mindful of the approach of some of the American Courts, was obviously not
impressed with the safeguards referred to. And for good reason. They throw little light on
how the scenting process and alleged powers of discrimination work. Nor do they provide for
proof that an individual has, as F far as dogs are concerned, a scent peculiar to himself, a
premise which, similar to the case of finger-and-footprints, is basic to the whole exercise.
Naturally, the distinction between admissibility and weight must not be blurred. On the other
hand, if the latter is so inconsequential and the relevance accordingly so problematical, there
can be little point in G receiving the evidence.

In my opinion, the cogency of the evidence in casu was not such as to remove it from the
realm of conjecture and so qualify it for promotion to the status of admissibility. In the first
place, I have some doubt whether the criteria, constituting the foundation as formulated by
KRIEK J, were satisfied. For H example, though Tilly was shown to be of good pedigree and
well trained, no details are, save to the extent indicated, given of her activities during the
period she was used after passing the second test. There is a degree of vagueness in Pead's
evidence as to how long the scent on the sandshoe would have lasted. He conceded that its
strength diminishes with I time. When two or three days were suggested, he said "it should
hold" - hardly a convincing reply. There is also merit in the submission of Mr Fuller , on
behalf of appellant, that Collen's credentials, as a trainer, were not proved. As to the
conditions under which the identification was made, it will be remembered that the dog did
not on each occasion sniff each and every person on the parade; as I have said, she stopped
when she came to appellant. Consequently the possibility that J another might have had the
same scent was not excluded.
1986 (4) SA p744

NESTADT AJA

A Of more importance, however, is that, in any event, the "proper foundation", though going
further than the "safeguards", still falls short of what needs to be proved to render this sort of
evidence admissible. Despite para (g) of the requisites, it does not sufficiently provide for
proof, and no evidence was adduced to show that man's understanding of B canine traits and
capabilities, or, for that matter, their training, has advanced beyond what was known when R
v Trupedo was decided. Nor can we make any assumptions in this regard, especially having
regard to Pead's concession that "these being animals, we cannot understand the dog's nose
ability". He did, indeed, express the opinion that a person's scent (to a dog) is C "as
individual as fingerprints". His reasoning, however, rested on a non sequitur which I need not
detail. He was, in the end, constrained to rely on the negative proposition that the contrary
had not been proved. Perhaps a sufficient inference that appellant had a scent different from
others D could have been drawn, and the untrustworthiness generally of the evidence
reduced, by the use of more than one dog at the parade (Pead admitted that this would have
made the identification more reliable) and by it, or them, also being given the scent of an
article which had been worn, not by the suspect, but by another on the parade (to see whether
that person, rather than appellant, would then have been "pointed E out"). Another precaution
might have been the reholding of the parade from which appellant had been withdrawn to test
whether no one was identified (where the dog had again been given the scent of the
sandshoe). None of these procedures were, however, followed. It was rightly conceded that
the fact that the dog had pointed out appellant on three occasions did not enhance F its
probative value. Pead, it is true, did say that the scent-discrimination power of a correctly
trained dog is "infallible". But this was a bald opinion unsupported by acceptable reasons.
Indeed, the judgment a quo acknowledges that "there is in fact no scientific basis for (this
view)".

My conclusion on this part of the case is that R v Trupedo was binding on the trial Court, that
it was not distinguishable and G that the evidence of the behaviour of the dog towards
appellant was inadmissible. It follows that it should not have been taken into account and that
the State failed to prove that the sandshoes were those of appellant. There was therefore no
linking him to the crimes on this basis. Nevertheless, the fact that they were similar to what
he was wearing on the Saturday H is of some significance in the general circumstantial
picture concerning the identity of the intruder.

I deal next with the probative effect, if any, of what appellant said in the s 119 proceedings
((ii) above). This section provides for the taking of a plea in a magistrate's I court on a charge
justiciable in the Supreme Court. The procedure involved is regulated by s 121 according to
which, where a plea of guilty is tendered, the presiding magistrate must question the accused
in terms of s 112 (1) (b) . If he is not satisfied that the accused admits the allegations stated in
the charge, a plea of not guilty is entered and the matter dealt with under s 122 (1),
"(p) rovided that an allegation, with reference to which the magistrate is so satisfied and
which has been recorded as an J admission, shall stand at the trial of the accused as proof of
such allegation".
1986 (4) SA p745

NESTADT AJA

The reference to s 122 has the effect of bringing into A operation s 115 which, in turn,
enjoins the court to enquire from the accused whether an allegation in the charge, which is
not placed in issue by the plea of not guilty, may be recorded as an admission thereof. If the
accused so consents, such admission is deemed to be one under s 220 with the result, in terms
of the latter section, that it is "sufficient proof of B such fact".

The pith of what appellant stated, in amplification of his plea of guilty, and in response to the
magistrate questioning him, was the following. Using a knife he scraped out the putty holding
one of the windows in its frame; in this way he was able to remove the pane of glass and then
enter the premises C through the opening, with the object of stealing; he proceeded to the
bedroom; as he entered, the two occupants awoke and rushed towards him; having stabbed
both of them, he fled. For reasons which it is unnecessary to canvass, the magistrate was not
satisfied that appellant admitted all the allegations contained in the charges. Accordingly, and
as he was obliged to do in terms of the sections cited, he entered pleas of not guilty,
whereafter the proceedings were adjourned D pending the decision of the Attorney-General.
Of more importance is that he first recorded, as a series of admissions, what appellant had
said.

It was on these that the State, in the Court a quo , relied. This it did by handing in the record
of the s 119 proceedings, as an exhibit under s 122 (4), read with s 235 (1) (which E
authorises proof thereof by mere production with the result that "any admission by the
accused shall stand at (his) trial... as proof of such an admission"). Clearly, if they did, they
would have constituted evidence (or rather, probative material, as it is more properly termed -
S v Mjoli and Another 1981 (3) SA 1233 (A) at 1247 in fin - 1248A) of decisive importance F
against appellant. No amplification of this proposition is required. Appellant, however,
contested the evidential value of his statement (to use a singular, composite term for the plea
and admissions). He did this on the ground that he was coerced into making it. And in his
evidence he testified to certain assaults which he averred had been perpetrated upon him
whilst in police custody, in order to force him to confess, and which, G from fear of their
repetition, had caused him to admit what he did to the magistrate. They (he said) took place
on four separate occasions and were committed by members of the police team investigating
the crime. The first was whilst he was being driven in a car on Tuesday, 18 December, by
Detective Sergant Njilo who, together with or in the company of two other Black H
policemen, twice during that morning administered electric shocks to his body. The second
(on the Wednesday morning) occurred near a river to which he had been driven by Njilo and
the other two; again he was subjected to an electric current. On his return to the police station
he was taken to the office of Lieutenant Myburgh who then punched him in his face. As a I
result, the inside of his left upper lip was cut. This was the third assault. Finally, in the
afternoon of that day, having complained to a Mr Leat, a magistrate to whom he had been
taken to make a written statement, that he had been assaulted and having refused to do so, he
was, on his return to the police station, hit in his face and kicked in the stomach by Warrant
Officer Delport and Lieutenant Upton. His statement the following day in terms of s 119 was
not the truth. He made it J because he
1986 (4) SA p746

NESTADT AJA
A "was tired of being assaulted... There was nothing else I could do because I knew that I
will still go back... The police would kill me in the manner in which they had treated me. I
couldn't do otherwise."
He did not tell the magistrate that he acted under duress because the police involved were
present in court.

The State witnesses, viz Njilo, Myburgh, Delport and Upton, to B whom these allegations of
assault were put, denied them. Nevertheless, the trial Court declined to rely on appellant's
statement. The conclusion of KRIEK J was that because of the
"rather strange sequence of events... the safest course to adopt is not to attach any weight to
what the accused said during the s 119 proceedings".

C The events referred to were not in dispute. In summary, they comprised the following
"inconsistent" (as the learned trial Judge put it) behaviour by appellant during the few days
after his arrest: (i) on the day of his arrest, viz Monday, 17 December, he made an
exculpatory statement to the police (to which I later refer as exh H); (ii) on the following day
(Tuesday, 18 December), after the first alleged assault, on his D return to the police station,
he complained to a police captain about his maltreatment and denied his guilt; (iii) on
Wednesday, 19 December, however, after the alleged second and third assaults, he inculpated
himself by making the pointings-out referred to at the commencement of this judgment; E
(iv) later that day, as already indicated, he refused to make a statement and at the same time
complained to magistrate Leat about having been assaulted; (v) the following morning, after
the alleged fourth assault, he confessed his guilt in court.

Before us, Mr Morrison , for the State, not surprisingly, did not rest content with the trial
Court's findings. His argument F was that appellant should have been held bound by his
statement. The issue thus raised is not one of admissibility. Having regard to the legislative
provisions referred to, there could have been, and was, no objection to it being proved. At the
same time, however, it is clear, as the trial Court recognised, that it did not absolutely bind
appellant; he was entitled (as he did) to impugn its voluntariness and thus G challenge its
weight. This was so, irrespective of the exact status of the admissions forming part of the
statement, ie whether they are properly to be regarded as formal ones under s 220, having the
effect of dispensing with the need for evidence to prove the facts in question, or, though made
coram curia in terms of s 121 (2) (b) , merely informal admissions forming part H of the
evidential material which became available to be used against appellant. (As to the difference
between the two, see Schmidt Bewysreg 2nd ed at 214, 275.) Dealing with the former and in
particular the meaning of "shall be sufficient proof", RUMPFF CJ in S v Seleke en 'n Ander
1980 (3) SA 745 (A) at 754G - H stated:
I "Voldoende bewys is natuurlik nie afdoende bewys (conclusive evidence) nie en kan later
deur die beskuldigde, bv, weens dwang of dwaling of deur ander regtens aanneemlike feite,
weerlê word."

The same applies, a fortiori , to less formal admissions (S v Sesetse en 'n Ander 1981 (3) SA
353 (A) at 376B - C). I shall assume (in view of a concession to this effect) that the onus was
on the State to negative the alleged assaults; in other J words, as in the case of the withdrawal
of a plea of guilty at common law (in regard to which, see, eg S v Britz 1963 (1) SA
1986 (4) SA p747

NESTADT AJA

394 (T) at 398 in fin - 399B), it suffices if the existence of A the ground relied on to
neutralise the weight of the statement made in terms of s 119 was, on all the evidence, a
reasonable possibility. This would seem to be the position; see S v Tsankobeb 1981 (4) SA
614 (A) at 624H. There must, naturally, be a causal connection between the alleged duress
and the making of the statement. This will not be assumed. As DE B VILLIERS CJ said in R
v Kumalo and Another 1930 AD 193 (at 202), after having quoted Taylor on Evidence 10th
ed vol 1 para 866 that a plea of guilty in open court is "deliberately and solemnly made under
the protecting caution and oversight of the Judge":
"We must assume that everything was properly done, that the C admission was freely made,
and that the accused fully understood and appreciated the consequences of his admission, just
as we would have had to make the same assumption, if the Court had accepted the plea and
entered a plea of guilty."

With these principles in mind, I return to the facts. It would seem to be implicit that the true
basis for not according appellant's s 119 statement any weight was not his inconsistent D
conduct per se , but a finding that the State had not excluded the reasonable possibility of
appellant having been assaulted. Seeing that it is based on the trial Court's assessment of a
factual dispute, an appeal Court, though entitled to, would usually not depart from a ruling of
this kind. Here, however, it is justified. We have the benefit of certain credibility, or at least
demeanour, findings of the Court a quo . Upton, Delport E and Njilo were said to have
"impressed us as competent policemen who were giving an unbiased account of their
investigations. They made a favourable impression on us".

Myburgh was described as "giving an honest, factual account of (his) involvement in the
matter with no attempt at any embellishments". The judgment also records the Court's F
satisfaction
"beyond any reasonable doubt that (Myburgh's) evidence... in all respects in which (he was)
contradicted by the accused is to be preferred above that of the accused".

On the other hand, not only was appellant's demeanour held to be unimpressive, but, by
reason of (i) his general untruthfulness, (ii) his unsatisfactory evidence in relation to G the
actual assaults, and (iii) the probabilities emerging from the evidence as a whole, it was
concluded that "we do not have much faith in his account of the alleged assaults on him".

The record reveals ample justification for this evaluation. There are numerous illustrations of
(i). As to (ii) and (iii), the following deserves mention. The injury which Mr Leat H
admittedly saw on appellant's face, viz a "slight break in skin on right part of the upper lip",
ie on the outside thereof, is not consistent with appellant's description of the consequences of
the third assault, namely a cut on the inside of the left lip. Appellant conceded that the alleged
fourth assault left no marks on his body. Having regard to its nature, I it is unlikely that it
would not have. He said that the blow to the face felled him; he was kicked a number of
times with such force that he had to plead with Upton to desist for fear of certain "stitches" on
his stomach "bursting"; he was "writhing in agony". Unless the police knew that no marks
had been left, they risked exposure by taking him before the magistrate (and also having him
medically examined by two different district surgeons, viz on the Wednesday, after the
alleged third assault on him and on Thursday, after his J appearance in
1986 (4) SA p748

NESTADT AJA

A court). It is a matter for comment, adverse to appellant, that he did not tell Mr Leat of the
second assault (which he described as the more painful). His excuse that he forgot is not
acceptable. It is true that the State evidence is not beyond criticism. The time that Njilo spent
with appellant on B the Tuesday morning does not seem to be fully accounted for. The
testimony of the two policemen who admittedly accompanied Njilo on that day would have
been important on the issue of whether the assault took place. Yet they were not called as
witnesses (though it must be added that it does not appear that they were available). And, of
course, as already C stated, appellant made certain contemporaneous complaints about his
treatment. Moreover, the medical evidence is that electric shocks would not necessarily have
left marks on appellant's body. Nevertheless, on an overall view of the relevant evidence, I
am of the opinion that the trial Court should not have allowed what amounted to a cloud of
suspicion to obscure what constituted cogent reasons for rejecting D appellant's allegations of
assault and that, in so doing, it adopted an over-cautious approach.
In any event, however, and whilst not overlooking that no reason - eg a realisation by him of
the strength of the case against him - appears from the record as to why appellant should
(voluntarily) have admitted his guilt, I am convinced E that it should have been held that
appellant's statement was not motivated by the fear of any physical violence to him. He did
not, at least on the occasion of the final assault, testify to having been threatened with any
consequences if he failed to incriminate himself. Having, on his version, had the fortitude to
withstand the pressure until then, it is not explained why F he felt compelled to make the s
119 statement. It is clear that appellant understood the nature of the proceedings and the
consequences of what he said. The trial Court regarded him as intelligent. In the
circumstances, it is probable that, despite the presence of the police in court and the fact that
he was not legally represented, he would have felt free, and indeed compelled, to seek the
protection of the court - had he been G acting under duress. His statement is a detailed one.
His explanation that he fabricated most of it, or, to use his more colourful language, "I sucked
it from my finger... I was just talking", should have been rejected. Its similarity to the true
events is too marked for this to have been possible.

In the result, so it seems to me, the argument for the State H that account should have been
taken of appellant's s 119 statement must be upheld.

This brings me to the pointings-out ((iii) above). It was not in dispute that on Wednesday, 19
December, appellant directed the police to the Allens' house where he showed them inter alia
the bathroom window (through which access to it was gained) and the frames of certain other
windows (where the putty, holding I the panes in place, had been tampered with) and also
certain rooms and spots inside the house. This conduct, admissible in terms of s 218 (2),
proved that he had knowledge of some fact relating to what was pointed out (S v Magwaza
1985 (3) SA 29 (A) at 39G). On the facts of this case, this could only comprise the crime in
question. The source of the knowledge might have been his participation in its commission or
the fact J that he saw others perpetrating it or information supplied by someone else (S v
Gwevu and Another 1961 (4)
1986 (4) SA p749

NESTADT AJA

SA 536 (E) at 537E - F). Appellant's explanation fell into the A last mentioned category. He
testified to having, the previous day, been taken to the house by Njilo (and the same two
Black policemen) and shown the various spots outside it which he later pointed to. From
what he had been told by the police concerning. the manner in which the crime was
committed, he was able to point out certain of the places inside it. In brief, B then, he sought
to make out the case that he had been precognized. Njilo denied the allegation. His version
was that he had never taken appellant to the Allens' house. The trial Court resolved the
resultant dispute in favour of the State, finding that the onus which rested on it of negativing
appellant's evidence had been discharged. Accordingly, so it C was held, it was to be inferred
that appellant's knoweldge stemmed from having been involved in the crime.

Mr Fuller challenged this. It was submitted that, if the trial Court could not and did not reject
appellant's evidence that he had been assaulted by Njilo, it equally should not have rejected
his claim that he had been taken to the house and D "schooled". I am unable to agree. In my
view, there is no justification for disturbing what amounted to a credibility finding. Though
no specific reasons are given for it, it must be examined against the background of appellant's
general untruthfulness and the favourable impression that Njilo created on the Court. The
latter makes it improbable that he would have E indulged in what would have amounted to
grossly improper conduct. Furthermore, if with knowledge of a contemplated pointing out, he
was minded to do this, he would surely have taken appellant inside the house as well.
Appellant admits this did not happen. One of the spots pointed out in the house was a place in
the passage, where, according to Mr Allen, he pursued F the criminal as he retreated towards
the bathroom. Appellant was unable to explain what this pointing-out represented. He was
also unable to satisfactorily explain how he was able to point out (wrongly, as it turned out)
the place where the pane of glass was put after its removal from its frame. After initially
stating that Njilo had shown him where this was, he contradicted himself by saying: "He
pointed out the place to G me. He would not say where I had put it." This is, of course, in
itself improbable if Njilo was intent on precognizing him. It must also be assumed that
KRIEK J was alive to what he would seem to have regarded as a question mark over Njilo's
evidence on the assault issue. In any event, he should have, as H indicated, decided it in
Njilo's favour.

The trial Court, in convicting appellant, also relied on the evidence of the blood and hair
found on his overall ((iv) above). I deal, firstly, with the latter. The hair was found on the
upper left front pocket of appellant's overall when it was examined at the police forensic
laboratories in Pretoria on 19 December 1984. It was that of a White person and was similar
in I both colour (red) and quality to the (head) hair of deceased. Indeed, according to Major
Oelofse, the expert who microscopically analysed it, the chances of it emanating from
someone other than deceased were 1:4 500. Prime facie , therefore, it gives rise to a fairly
strong inference that appellant was in deceased's presence, which, in turn, points irresistibly
to him being the culprit (the hair having, in some way, got onto the overall as he stabbed her).
There are, J however,
1986 (4) SA p750

NESTADT AJA

A weaknesses in this reasoning. They arise from the facts being consistent with an innocent
explanation for the presence of the hair on the overall. One is that there is merely the bald
assertion that the statistic in question was based on research. Appellant's evidence that his
overall was an external garment B which he had worn often and for some time (whether in
houses where he was doing painting work, or when frequenting public places, like shops),
makes it reasonably possible that the hair came onto the overall accidentally, as he (probably)
came into close physical contact with other (White) persons there. A second is that the hair
may have got onto the overall C via deceased's bedding (on which her hair would be expected
to be). This could have taken place because there was evidence of two persons having, on
different occasions, handled both. Captain Van Dyk removed the bedding from the bedroom
and also received the overall after it had been taken from appellant. Major Welma Oelofse, of
course, also dealt with the bedding and overall on their receipt by her from the police. D
Thirdly, so it was suggested, the hair may have come onto the overall after Captain Van Dyk
had removed hairs from the deceased's body (which he did for their transmission to Pretoria
for examination). I must say that I am inclined to think that the last two possibilities are
somewhat remote and speculative; neither was put to the witnesses in question. However, it
cannot be gainsaid that at least the first exists. E On the other hand, I do not agree, as Mr
Fuller argued, that the evidence under consideration should have been disregarded. The trial
Court was entitled to put it into the scales against appellant. On the principle that it is not
each proved fact which must exclude every reasonable inference save the guilt of F the
accused, but the facts as a whole (R v De Villiers 1944 AD 493 at 508), it had sufficient
weight to warrant this.

The evidence of blood on the overall (which it will be remembered appellant was wearing on
his arrest and, I may add, on Saturday 15 December as well) is even more compelling. Spots
of it were found near the left shoulder on the back. Its significance arises from the fact that it
belonged to groups A G and NN, the same as those of deceased (and Mr Allen) and different
from appellant's. According to the evidence only about 8% of the population has blood of this
classification. In the nature of things, it is unlikely that blood (particularly someone else's)
would come onto appellant's overall, at least without him being aware of and remembering it.
The only H explanation he could proffer was the unfounded and far-fetched one that the
police "planted" it there. This suggestion was correctly rejected by the trial Court. Again, the
evidence under consideration does not, on its own, exclude every reasonable inference save
that deceased's or her husband's blood (or both) came onto appellant's overall when he
stabbed her (or him). Also, as was argued, the inference is not as I strong as it would have
been had deceased and Mr Allen each had different groups of blood both of which were
found on the overall. Nevertheless, it is, to put it at its lowest, consistent with such inference
(bearing in mind that both, and especially deceased, bled profusely). It was, therefore,
correctly relied on by the Court a quo as one of the pieces of circumstantial evidence
implicating appellant.

Finally, there is appellant's evidence as to his whereabouts on J the night in question ((v)
above). It was rejected as false. This finding is unassail-
1986 (4) SA p751

NESTADT AJA

able. The hut in which he testified he spent the night of 15 - A 16 December was on what was
referred to as the Haines construction site. But, the evidence of a number of lay, unbiased
witnesses as also that of the police, plus his own statement, exh H, properly construed, was
overwhelmingly to the effect that, on the day of his arrest, he showed the police a hut on a
different site where he allegedly slept, and not, as B he averred in evidence, the one on the
Haines site. It was common cause that he did not stay at the former. This reflects adversely
on appellant's credibility. As was pointed out, however, in S v Mtsweni 1985 (1) SA 590 (A) ,
caution must be exercised in attaching too much weight to the fact of an accused's evidence
being untruthful. An innocent person may C falsely deny certain facts because he fears that to
admit them would be to imperil himself (S v Dladla 1980 (1) SA 526 (A) at 530D).
Nevertheless, it is a factor of significance because appellant's evidence, in support of his alibi,
having been rejected, he is in the same position as if he had given no evidence on the merits
(R v Dhlomo 1961 (1) PH H54 (A); R v D Dladla and Others 1962 (1) SA 307 (A) at 311D -
E).

That, then, is a survey of the evidence before the trial Court, its findings and our conclusions
on the individual correctness thereof. The result, in my view, is the following. The finding
that the dog connected appellant with the sandshoes was erroneous and constituted an
irregularity. It was not such, E however, as to result in a failure of justice. There was a
formidable body of evidence against him. In summary, it was his express admission that he
entered the house and stabbed deceased and her husband (the s 119 statement); the implied
admission, flowing from his pointings-out, that he was involved in the crime; the
circumstantial evidence of the blood and hair found on his overall; and his failure to
satisfactorily explain F his whereabouts, on the night in question. There was also, as
indicated, the fact that on the Saturday he was wearing shoes of a similar kind, colour and
size to the ones found at the scene. One might, incidentally, add the undisputed fact that
appellant fell within the general description of the intruder given by Mr Allen, that he knew
that the removal of putty from G a window frame would enable the pane to be taken out and
that, on 15 December, he worked, as a casual labourer, at a house adjoining deceased's; it
apparently attracted his attention because he admittedly noticed it. The only reasonable
inference to draw from the aforegoing, taken cumulatively, was that appellant was the
intruder and therefore the person who committed the crimes of which he was found guilty.
The appeal H against the convictions cannot succeed.

It remains to deal with the appeal against sentence. There is no warrant for disturbing the
finding that extenuating circumstances were not proved by appellant. It was argued that in
entering the house, he did not anticipate encountering anyone inside, that his possession of a
knife was merely to I enable him to remove the putty, that his attack on deceased (and Mr
Allen) was therefore not premeditated and that when, to his surprise, he came across them, he
stabbed in panic; at that stage, deceased was (probably) not asleep but had awoken and had
confronted appellant; there was no direct intent to kill but rather dolus eventualis . I agree
with the trial Court's rejection of the argument. I am not sure that, even if these facts were
proved, they would have sufficiently reduced appellant's moral blameworthiness to constitute
extenuating J circumstances.
1986 (4) SA p752

A In any event, however, they were not proved. There was, of course, no evidence to this
effect by appellant. Nor can they be implied or inferred. There are no circumstances which
could have founded an assumption on his part that the house was unoccupied. On the
contrary, the impression to be B gained is that appellant was careful not to make an undue
noise as he entered; hence his removal rather than the breaking of the pane. There is no
reason to limit the contemplated use of the knife to removing the putty. When he went into
the bedroom, he obviously then saw the Allens. Instead of hastily retreating, he attacked
deceased. It is idle to speculate what her exact position and state of conciousness was when
she was stabbed. I do not believe it matters. It was never suggested C by the State that
appellant broke into the house in order to kill her. Nevertheless, the trial Court, with
justification, convicted appellant on the basis of dolus directus .

The appeal is dismissed.

D CORBETT JA, TRENGOVE JA, SMALBERGER JA and NICHOLAS AJA concurred.

S v NEL 1990 (2) SACR 136 (C)


1990 (2) SACR p136

Citation 1990 (2) SACR 136 (C)

Court Cape Provincial Division

Judge Marais J

Heard September 22, 1986

Judgment April 18, 1986

Counsel P J Laubscher for the appellant


P J A van der Merwe for the State

Annotations Link to Case Annotations

D
[zFNz] Flynote : Sleutelwoorde
Evidence - Admissibility - Psychiatric evidence - Of intellectual and psychological
disabilities of witness of relatively normal kind - Such disabilities capable of adequate
assessment by trial court whilst E witness giving evidence - Cost of expert evidence far
outweighing its marginal benefit of more accurate assessment of witness - Such
evidence not admissible - Appellant during trial in magistrate's court seeking to lead
psychiatric evidence regarding ostensibly normal defence witness to effect that latter
'mildly to moderately mentally retarded' and uncommunicative when subjected to strain
of testifying in court - Court F on appeal holding that appellant thereby seeking to
indirectly discredit witness without having latter declared hostile witness - Would amount
to circumvention of established prohibition - Would also be subversive of principle that
court and court alone evaluates reliability of evidence given by witness on latter's
performance in witness-box - Court upholding magistrate's refusal to allow psychiatric
evidence to be led. G
[zHNz] Headnote : Kopnota

There is no real analogy between cases of physical affliction which adversely affect the
capacity of a witness to testify accurately and reliably, in which cases evidence to
establish such affliction would obviously be admissible, and intellectual and psychological
disabilities of a relatively normal kind. The latter disabilities, where they affect H
personality, powers of exposition and articulation, ability to recall and the like, are
capable of being assessed reasonably adequately while the witness is engaged in giving
evidence. The possible advantages of a more accurate and reliable assessment which
might be made if evidence, and particularly expert evidence, specifically directed
towards such matters is heard, must be weighed up against the cost of this additional I
and inessential assistance in terms of the prolongation of trials, its availability in
relatively few centres and not in others, and its lack of affordability for many in both
criminal and civil trials. The cost is likely to exceed by far the marginal benefit which
would be gained in the administration of justice by the admission of such evidence.

R v Turner [1975] 1 All ER 70 (CA) approved and applied.

The appellant had applied, during her trial in a magistrate's court, to lead psychiatric
evidence of the fact that one of the witnesses who had J been
1990 (2) SACR p137

MARAIS J

A called to testify on her behalf was 'mildly to moderately mentally retarded' and likely
to become uncommunicative when subjected to the strain of testifying in a court. The
magistrate had refused the application and, on appeal against the resultant conviction
and sentence, the Court held that the avowed object of this exercise was to do indirectly
that which the appellant was not ordinarily entitled to do directly, namely, to discredit
her own witness without having had the B witness declared hostile or proving that the
witness had made a prior inconsistent statement, and that granting the application
would thus result in the circumvention of an established prohibition. It would also be
subversive of the principle that it is the court, and the court alone, which must evaluate
the reliability of the evidence given before it by a witness and that it must do so by
having regard to his showing C in the witness-box. The Court accordingly held that
psychiatric evidence of the kind which the appellant sought to place before the
magistrate was not admissible and that the particular facts of the case did not warrant
its reception by way of an exception to the general rule. The Court further held,
however, that the magistrate had erred on a different aspect of the case and that the
conviction and sentence had for that reason to be set aside. D
[zCIz] Case Information

Appeal against a conviction and sentence imposed in a magistrate's court. The facts
appear from the reasons for judgment.

P J Laubscher for the appellant.

P J A van der Merwe for the State. E

Cur adv vult .

Postea (18 April 1990).


[zJDz] Judgment

Marais J: This is a criminal appeal in which one of the questions which arises is unusual,
namely, whether the accused should have been F permitted to call a psychiatrist to
explain to the trial court why the evidence of an ostensibly normal defence witness
should be largely disregarded because of psychological idiosyncrasies falling short of
mental defectiveness and certifiable insanity.

Appellant was charged with contravening s 2 (a) of the Abuse of Dependence-


producing Substances and Rehabilitation Centres Act 41 of 1971 in that she dealt
unlawfully in a prohibited dependence-producing drug by selling a plug of dagga and a
Mandrax tablet to a police trap. G She pleaded not guilty and was represented by
counsel. The State case rested upon the evidence of two witnesses. One was the police
trap. The other was his police controller. In broad, the evidence was that the trap had
been provided with a R10 note and told to buy a plug of dagga and a Mandrax tablet at a
particular flat in Kewtown, Athlone. He left his controller without any drugs or other
money in his possession. He proceeded to an enclosed yard behind the flat. The
appellant was in the H yard at a washing line. She asked the trap what he wanted. Upon
being told, she took the R10 note which he proffered and entered the flat leaving him in
the yard. She returned after a short while and handed the trap a plug of dagga, a
Mandrax tablet and R7 in change. The trap returned to his controller and handed over to
him the dagga, the Mandrax tablet and the change. The trap had been away for
approximately ten I minutes. Together with other policemen they returned to the flat.
The appellant was still in the yard. The trap identified her to his controller and she was
arrested. She denied any knowledge of the alleged transaction. The flat was searched
and neither the R10 note nor any other dagga or Mandrax tablets was found.

The appellant testified in her own defence and her mother was also called to testify on
her behalf. Quite apart from the main dispute as to J whether or not it

Previous Page Next Page

S v Hendricks (CC46/2010) [2011] ZAWCHC 345; [2011]


4 All SA 402 (WCC) (9 September 2011)

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: CC46/2010
ERASMUS, J

Introduction
1. The use of a road network, by vehicular means, has become the norm in our civilisation. This way
of life poses its own inherent dangers to the safety and wellbeing of society. Appropriate measures
must be put in place to ensure that any person who is in control of any mode of transport on our roads
is at all times able to be in full control of such an instrument without any of his or her faculties being
impaired.

2. It has become common that incidents on our roads occur that result in loss of life, serious injury to
individuals and property that has a negative effect on the economy and wellbeing of the nation.17 It
is common cause that in an overwhelming majority of these incidents there are indications that the
faculties of the driver and or pedestrians involved would have been affected by the presence of an
intoxicating substance that affects the ability of such individuals to responsibly use the transport
network.18 This is a scourge that needs to be eradicated for the betterment of society at large.

17 According to the Medical Research Council (MRC) the following statistics were given; 53% of road users who
die on South African roads had an alcohol level over the legal limit, the fatal accidents cost the country R 52
billion in 2007. South Africa is one of the highest alcohol consuming countries in the world and excessive alcohol
consumption plays a major role in 60% of hospital trauma cases. An average of 40 people will die on South
African roads every single day.
18 Mr. D V Frost, during his examination as a witness, presented the Court with figures relating to alcohol use on the
roads. He made the following statement in his affidavit submitted to the Court dated 17 May 2011. Para 23: "on (sic)
National level it can be safely accepted that between over 50% of all driver fatalities are alcohol associated in that the
3. It is important that this matter be addressed as it affects innocent sober users on South Africa's
roads every day. It is a problem which is increasing and measures need to be in place to safeguard
those using our public roads from the harms and dangers of those driving whilst their faculties are
impaired.

4. The state ought to be able to utilise, to the full extent possible, all available tools at its disposal. If
there is a tool available which both passes constitutional muster and requires a comparatively small
allocation of resources, especially in light of the service delivery imperative and the concomitant
competition for allocation of resources, it ought not only be used, but prioritised. As is clear from
what I describe below there appears no reason, in principle, why an evidential breath test, properly
applied, could not be such a tool.

5. Legislative enactments are in place to deal with this issue, the background, development and its
application which I shall discuss in this judgment.

6. In this case, brought as a test case19, I primarily have to address the scientific reliabilit of the
Drager Alcotest 7110 MK 111 evidentiary breath testing device ("the Alcotesf20), used in South
Africa to test the breath alcohol concentration of a person in an endeavour to combat the increasing
number of drivers under the influence of alcohol. I further have to consider the adequacy of the
Alcotest and the evidential value of the result it generates for use by the prosecution of accused
persons in our legal framework.

7. The accused herein was charged with contravening section 65(5) read with sections 32, 65(6) and
(7), 69(1), 73 and 89(2)21 of National Road Traffic Act (the "RTA"), 93 of 1996 and regulations 115
and 332 of the National Road Traffic Regulations 2000 (G.G. 20973 of 2000) and read with section
25 of the Accreditation for conformity assessment, Calibration and Good Laboratory Practice Act, Act
19 of 2006.

8. It is alleged that on 23 January 2010, on Greinhout Street, a public road in Kewtown Athlone, the
accused wrongfully drove a motor vehicle with license number CA 373044, whilst the concentration
of alcohol in any specimen of breath of the accused was not less than 0.24 milligrams of alcohol per
1000 millilitres. At the time of the alleged contravention, his breath alcohol concentration was 0.95
milligrams per 1000 millilitres, and such measurement was taken with equipment that complies with
SANS 1793: Evidential breath testing equipment.22

9. The accused entered a plea of not guilty to the charge. In particular he placed the following in
dispute:
"2.1. that.. .[he] was the driver of the vehicle CA 373044 on 23 January 2010;
2.2. that the alcohol on ... [his] breath exceeded 0.24 milligrams per 1000 millilitres of... [his]
exhaled breath;
2.3. that the testing apparatus used to determine the amount of alcohol on ...[his] breath:

driver had been drinking and driving. In the Western Cape this figure is even higher in that the driver fatality drinking and
driving ratio is over 60%".
19 As a test case I have been asked to deal with all the issues related to the Drager Alcotest 7110 MK 111 as
used in South Africa. The particular model used in this instance is designated "RSA" or "8314647" In as far as
other models are concerned, I am unable to make specific findings.
20 The device is referred to as the "instrument" as well as an "apparatus" in terms of the Drager instructions for
use manual; the "equipment" in terms of the Regulations and the RTA; and also the "machine" in the prosecution
guidelines.
21 I shall not deal with s69(1), 73 and 89(2) of the RTA as it has no bearing on the issues to be decided.
22 There were no alternative charges and I am therefore not able to make any findings related to the accused's
impairment or his blood alcohol level.
2.3.1. functioned correctly;
2.3.2. was operated correctly;
2.3.3. was operated by a person who is properly qualified to operate such apparatus;
2.3.4. was calibrated correctly;
2.3.5. is capable of accurately determining the alcohol concentration on the breath of a test subject;
2.3.6. is capable of distinguishing between ethyl alcohol and other short chain carbon compounds;
2.3.7. was operated in accordance with the Drager operation guidelines and/or with reasonable operation
guidelines;
2.4. that section 65(5),(6) and (7) of Act 93 of 1996 conform to the
requirements of the rule of law and the Constitution of the Republic of
South Africa, namely the legislation rationally serves a legitimate purpose
of government without vagueness, arbitrariness or capriciousness, in that:
2.4.1. breath alcohol has no scientifically established direct correlation with a
person's motor or perceptual skills and the ability of that person to drive a motor
vehicle;
2.4.2. the correlation between breath alcohol and blood alcohol levels differs from
individual to individual and therefore a conviction or acquittal may depend solely
upon the type of test used and is therefore arbitrary and unreasonable."
3. He made the following admissions in terms of section 220 of Act 51 of 1977:
3.1"... [he] was taken to the Shadow Alcohol Examination Centre in Athlone where
a test using a Drager Breathalyser was carried out on ... [him] by Mr John Gaven
at approximately 19h37;
3.2. the machine used was the Drager Alcotest 7110 Mk 111;
3.3... [he] consumed no alcohol between the time when ... [he] was arrested and
the time that the aforementioned test described above was carried out on ...
[him]".

10. The state therefore is challenged with proving, beyond a reasonable doubt23, the accused's guilt
of contravening section 65(5) of the RTA as well as its own compliance with all the relevant
regulations and further requirements relating to the Alcotest. The court will further have to be
satisfied that the legislation conforms to the requirements of the rule of law and of the constitution.

The facts
11.lt was a warm summer's day in Cape Town on 23 January 2010. The accused together with his
girlfriend and his daughter decided to fetch friends and spend timeon the beach. They consumed a few
alcoholic beverages before going and more whilst on the beach.

12. Later in the day the accused was seen driving a motor vehicle in Kewtown, Athlone. His driving
was indicative of abnormality, at one stage he overtook a police vehicle on the wrong side and
brought his vehicle to a standstill in a manner inconsistent with normal driving behaviour. The police
observed the accused as he alighted from the driver's door of the vehicle, approached and
apprehended him. The accused was undoubtedly under the influence of a substance which had a
narcotic effect. It was placed in dispute that the accused was in fact driving the motor vehicle at any
relevant stage. However on the totality on the evidence presented I have no hesitation to find that the
accused was in fact the driver of the said motor vehicle24.

13. He was taken to the Athlone police station in the back of a police patrol vehicle. It is unclear
whether the accused was body searched before being placed in the vehicle.

23 Schwikkard Presumption of Innocence 15. In S v Baloyi 2000 (1) SACR 81 (CC) Sachs J also said at [15]: "The
requirement that the State must prove guilt beyond a reasonable doubt has been called the golden thread running through the
criminal law, and a prime instrument for reducing the risk of convictions based on factual error." See also generally
Magmoed v Janse van Rensburg 1993 (1) SACR 67 (A), where Corbett CJ referred to the "general policy of concern for an
accused person in a criminal trial" (at 100y) and the rule that there can be no conviction in the absence of proof beyond
reasonable doubt furnished by the prosecution (at 101a).
24 I do not deem it necessary to fully summarise the disputed evidence as my finding would not have any effect
on the outcome of this case.
14. Upon their arrival at the police station it was discovered that the police were not in possession of
the necessary equipment to ensure that a blood sample be taken. Absent the availability of the
necessary available blood sampling kit, the accused was taken by the police to the Athlone Shadow
Alcohol Examination Centre ("Shadow Centre") for a breath test to be conducted.
15. This particular Shadow Centre was opened, equipped with three Alcotests, in mid-December 2009
and controlled by the same manager25 until mid-April 2010.

16. During that period, an occurrence book was kept on site for the purpose of recording all incidents
related to the running of the Shadow Centre26 - particularly in respect of the state and maintenance of
the Alcotests. Evidence given however revealed that not all the incidents relating to these Alcotests
were entered into this occurrence book. It therefore was difficult to establish when - if at all - any of
these Alcotests were sent for calibration - or any routine maintenance, reported malfunction or faults:
there was simply insufficient record keeping. I pause to add that the prosecution had great difficulty in
tracing the records for court purposes.27

17. The officers28 who operate the Alcotests are required to be trained in the effective and correct
use thereof. The primary reason for strict adherence to operating procedures is that any results
produced by the Alcotest could be used in a court of law. I shall refer to the training of these officers
as operators later in this judgment.

18. A traffic officer29 specifically trained to be an operator of the Alcotest, tested the accused with
the Alcotest model number 8314647 and serial number ARZN-0051.
19. The accused was asked to blow one sample of breath into the Alcotest, whereafter a printout was
produced. The result of the breath test reported a breath alcohol concentration of 0.95mg per 1000
millilitres. Since this was in excess of the legal limit of 0.24mg per 1000 millilitres, the accused was
formally arrested and charged with the offence of contravening section 65(5) of the RTA.

20. It is indicative to note, at this stage, that only sparse information was obtained about the accused
in relation to, inter alia, his intake of any substances or cigarette smoke, his body temperature and
physical condition during the time of his detention and during the breath test.30

21. I pause to note that the accused was not asked whether or not he wears dentures. This would be a
very important question to ask since there is a danger of a false 'positive' result in the presence of
mouth alcohol as will become evident later in this judgment.

22. These facts have to be considered and measured against the legislative framework which I now
deal with.

The legislative framework

23. An accused person is presumed to be innocent until proven guilty. Section 35 (3)(h) of the

25 Mr. I Petersen.
26 Inclusive of, inter alia, staff and general operational matters.
27 This would be what provision 2.5 of the prosecution guidelines mentioned herein is intended to prevent.
28 Prosecution guidelines provision 2.1 states that only "registered traffic officers" may operate the devices.
29 Mr. J Gaven from Cape Town Traffic Services.
30 Officer Gaven's notes, entered into a form half a page long at the time of the accused's breath test, reflect the
accused's personal details such as name and number, the make of the car and registration number thereof, when
last the accused ate, and what type and quantity of alcohol he had consumed. From the sample "operator's
statement" - some 3 pages long and including a detailed questionnaire -handed up by the state, it became clear
that those were only some of the questions that ought to have been asked. No such document with the accused
details was handed in as evidence.
Constitution of the Republic of South Africa31 states: "Every accused person has a right to a fair
trial, which includes the right - to be presumed innocent, to remain silent, and not to testify during
the proceedings".32 The State must prove, in a case like this, by admissible and credible
evidence all the requirements set out in the legislation, viewed through the prism of the
Constitutional framework.

24. In dealing with the charge I need to consider, in particular, section 65(5) of the RTA. However, it
is important for the purposes of this case to consider section 65 in its entirety in light of the accused's
plea. Section 65, titled "Driving while under the influence of intoxicating liquor or drug having a
narcotic effect, or with excessive amount of alcohol in blood or breath", reads as follows:
(1) "No person shall on a public road -
(a) drive a vehicle; or
(b) occupy the driver's seat of a motor vehicle the engine of which is running, while
under the influence of intoxicating liquor or a drug having a narcotic effect.
(2) No person shall on a public road -
(a) drive a vehicle; or
(b) occupy the driver's seat of a motor vehicle the engine of which is running, while the
concentration of alcohol in any specimen of blood taken from any part of his or her
body is not less than 0,05 gram per 100 millilitres, or in the case of a professional
driver referred to in section 32, not less than 0,02 gram per 100 millilitres.
(3) If, in any prosecution for an alleged contravention of a provision of
subsection (2), it is proved that the concentration of alcohol in any specimen of blood
taken from any part of the body of the person concerned was not less than 0,05 gram per
100 millilitres at any time within two hours after the alleged contravention, it shall be
presumed, in the absence of evidence to the contrary, that such concentration was not
less than 0,05 gram per 100 millilitres at the time of the alleged contravention or in the
case of a professional driver referred to in section 32, not less than 0,02 gram per 100
millilitres. It shall be presumed, in the absence of evidence to the contrary, that such
concentration was not less than 0,02 gram per 100 millilitres at the time of the alleged
contravention.

(4) Where in any prosecution in terms of this Act proof is tendered of the analysis of a specimen of the
blood of any person, it shall be presumed, in the absence of evidence to the contrary, that any syringe
used for obtaining such specimen and the receptacle in which such specimen was placed for despatch
to an analyst, were free from any substance or contamination which could have affected the result of
such analysis.
(5) No person shall on a public road-
(a) drive a vehicle; or
(b) occupy the driver's seat of a motor vehicle the engine of which is running, while the concentration
of alcohol in any specimen of breath exhaled by such person is not less than 0,24 milligrams per 1
000 millilitres, or in the case of a professional driver referred to in section 32, not less than 0,10
milligrams per 1 000 millilitres.
(6) If, in any prosecution for an alleged contravention of a provision of subsection (5), it
is proved that the concentration of alcohol in any specimen of breath of the person
concerned was not less than 0,24 milligrams per 1000 millilitres of breath taken at any
time within two hours after the alleged contravention, it shall be presumed, in the
absence of evidence to the contrary, that such concentration was not less than 0,24
milligrams per 1000 millilitres at the time of the alleged contravention or in the case of a
professional driver referred to in section 32, not less than 0,10 milligrams per 1 000
millilitres, it shall be presumed, in the absence of evidence to the contrary, that such
concentration was not less than 0,10 milligrams per 1 000 millilitres at the time of the
alleged contravention.
7) For the purposes of subsection (5) the concentration of alcohol in any
breath specimen shall be ascertained by using the prescribed equipment.
(8) Any person detained for an alleged contravention of any provision of this section

31 The Constitution of the Republic of South Africa Act 108 of 1996.


32 Of relevance will also be the limitations clause contained in section 36 of the same Act.
shall not -
(a) during his or her detention consume any substance that contains alcohol of any
nature, except on the instruction of or when administered by a medical practitioner;
(b) during his or her detention smoke until the specimen referred to in subsection (3) or
(6) has been taken, as the case may be.
(9) No person shall refuse that a specimen of blood, or a specimen of breath, be taken of
him or her."

25. It is therefore incumbent upon the State, in order to sustain a conviction in terms of section 65(5),
whether (a) or (b), to prove that the result produced was obtained by using the "prescribed equipment"
as stated in section 65(7).

26. This "prescribed equipment" referred to in subsection (7) is prescribed33 by Regulation 332,
titled "Equipment used in ascertaining concentration of alcohol in breath", ("Reg 332"), and
contained in GN R404 of 200734, which was operational with effect from 4 May 2007.

27. Reg 332 as contained in GN R 404 provides that equipment intended to be used for the purposes
of section 65(7) of the RTA must be approved in a specified way in accordance with requirements
prescribed in South African National Standard 1793 ("SANS 1793"). It is noteworthy that no reference
is made therein to any particular make or model of prescribed equipment as there had been previously
in the 2003 version of Reg 332. The full text reads:

"(1) For the purpose of this regulation type-approved and type-approval means that
one example of a specific make and model of equipment has been tested in terms of
the South African National Accreditation System (SANAS), by an accredited test
laboratory in terms of SANS 1793: Evidential breath testing equipment and a test
report indicating compliance with such specification is issued in respect of such make
and model of equipment."

(2) The equipment to be used to ascertain the concentration alcohol in any breath
specimen as contemplated in section 65(7) of the Act, shall comply with the
requirements of the standard specification, SANS 1793: Evidential breath testing
equipment and shall be type-approved as contemplated in subregulation (1).

(3) If, in any prosecution for an offence under section 65(5) of the Act, an allegation is made in the
charge sheet, in relation to the prescribed equipment used to ascertain the concentration of alcohol in
a breath sample, a certified copy of a test report, indicating that the specific make and model of
equipment complies with SANS 1793, issued by an accredited test laboratory shall, in absence of
evidence to the contrary, be prima facie evidence as to the fact that the equipment complies with the
provisions of subregulation (2).

(4) A certified copy of a certificate issued by the manufacturer or supplier


of the equipment referred to in subregulation (1), that contains the make
and model of the equipment, shall, in absence of evidence to the contrary,
be prima facie evidence that such equipment is of such make and model."

28. A further addition - inserted for the first time by GN R404 of 2007 - is Regulation 332A, ("Reg
332A"), titled "Presumption regarding calibration or verification certificate for equipment used for
road traffic law enforcement purposes"35 At the time of the accused's arrest, it read as follows36:

33 The Minister of Transport is empowered, in terms of s 75 of the RTA, to make National Road Traffic
Regulations, ("Regulations") from time to time. The first thereof were published under GN R 225 in GG 20963 of 17
March 2000 to take effect on 1 August 2000.
34 Published in GG 29865.
35Subsequent to its first publication in 2000, Reg 332 was substituted by:
"Where in any prosecution for an alleged offence in terms of this Act, it is necessary
to prove that any equipment used for road traffic law enforcement purposes, was
calibrated or verified to establish the accuracy and traceability, of such equipment, a
certificate issued by a laboratory that is accredited for the purpose of issuing such
certificates and conducting the tests required for such calibration or verification, by
the South African National Accreditation System (SANAS), shall in the absence of
evidence to the contrary, by mere production thereof be prima facie evidence as to
such calibration or verification."

29. As Reg 332 refers to SANS 1793 it is important to consider the contents thereof, to which I now
turn.

30. SANS 1793 Edition 2, issued by the South African National Accreditation System ("SANAS") in
2006 ("SANS 1793:2006"), is headed "Evidential breath analyzers" and on its title page states that
"[tjhis national standard is the identical implementation of OIML R 126:1998...".37

31.While expressly incorporating OIML R 126:1998, it also expressly "cancels and replaces the first
SABS38 edition (SABS 1793:1998)". In other words, SABS 1793:1998, the first edition of the
standard applicable to evidential breath analyzers was superseded by the second edition - SANS
1793:2006.

32. SABS 1793:1998 was presented as an Exhibit to this court, it was approved on 16 February 1998,
the differences between this document and the OIML R 126:1998 are vast39 .

33. In SANS 1793:2006 it is stated that "[f]or the purpose of this recommendation, only ethanol is
considered alcohol", which is also the definition used in OIML R 126:1998 (E) Edition 1 - the English
language version of the first edition which is still in effect.

34. Because of the nature of this case, it is important that I summarise the salient features of the
standard as presented in terms of the OIML R126.
35. In an attempt to satisfy the provisions of Reg 332 and prove compliance with OIML R 126:1998
the State produced a certificate from Drager AG issued by the OIML on 18 May 2010 which certifies
the 'pattern' 7110 MKIII as conforming to OIML R 126:1998, ("R 126") .

36.This proffered OIML certificate does not make mention of either a particular model of that 'pattern'
- specifically the model number 8314647 used in this case - or of any version of operating firmware or
software whatsoever as having been tested.

37. According to this certificate of conformity the "principal characteristics" of this 'pattern' of
evidential breath analyser are set out in the appendix thereto. This appendix in turn sets out the most

1. GN R1341 of 2003, with effect from 25 September 2003;


2. GN R404 of 2007, with effect from 4 May 2007;
3. GN R1113 of 25 November 2010, which was in turn revoked by GenN 118 of 2 March 2011.
36The Reg 332A wording in any event remained unchanged.
37 The acronym OIML, (Organisation Internationale De Metrologie Legale) in its English translation, stands for
the International Organization of Legal Metrology.
38 The South African Bureau of Standards, ("SABS"), type-tested the Alcotest under SABS 1793:1998 and issued a test
report thereof on 18 February 1998. That document was handed in as Exhibit H11.
39 SABS 1793:1998 was the standard at the stage of the type testing, whilst OIML R 126 was the applicable
standard at the time of the alleged offence.
important characteristic as follows: "The Evidential breath analyzers Drager MK 111 pattern
measures the alcohol concentration by analysis of expired alveolar40 air, using the phenomenon of
absorption of a beam of infrared monochromatic radiation41."42 The premise and mechanisms
related to the workings of the machine will be discussed in detail below.

38.The document referred to as R 126 is headed "International Recommendation" and titled


"Evidential breath analyzers", ("EBAs"). Its 39 pages contain a main body of 13 pages and 9
annexures. Annexures A - D are sub-headed "Mandatory" and Annexures G - I are sub-headed
"Informative" while E and F do not have any subheadings.

39. In terms of point 1.1 of the introductory section titled "Scope", "for the purpose of this
Recommendation, only ethanol is considered as alcohol". Point 1.5 gives the further purpose of R 126
as being "to define the performance requirements of EBA's and the means and methods employed in
testing them."

40. The section titled "Terminology" defines "[d]eep lung air" as "breath delivered from the mouth of
a subject that originates from the alveoli of the lungs, normally referred to as end-expiratory breath
and defines"43 [a]lveolar air" in turn as "[a]ir contained in the pulmonary alveoli"44.

41. Point 3.9 provides technical details of devices45 which may be used for "adjustment" of an EBA
"to a standard" and the formula to be used therefor. The preferred method - listed first46 - involves a
so-called 'wet bubble train' whereby a "mixture of air and ethanol passes through the entire gas
analysis train, starting with the mouthpiece, in the direction normally taken by exhaled air."

42. That is followed by a note stating that "[adjustment using dry gas is possible provided that the
difference of effect between wet and dry gases is known or can be automatically corrected".

43. The alternative method47 is titled "adjustment by simulation", indicating thereby that the dry gas
method of testing is an alternative to the 'wet bubble train'. It reads: "[a] device for adjusting the EBA
by a procedure other than that specified in 3.9, notably by the simulation of the effects of the passage
of a standard mixture of gases as described in 3.9".

44. Section 5 is titled "Metrological requirements" and lists, in detail, what is required of the EBA in
order for it to be compliant with the recommendation. There are details of "[m]aximum permissible
errors", "[Repeatability", "[d]rift" and "[m]emory and residual effect"48.

45. Factors which influence the operation of an EBA are listed as "[influence quantities" in section
5.5. Annex A - a 'mandatory' provision - lists the "test methods and factor values" to be used. Of
particular importance are those not immediately apparent and which may cause an incorrect reading to
be produced by the EBA. In other words, a power failure will not be of concern since there will not be

40 My emphasis. This point will be covered in detail below.


41My emphasis. This point will be covered in detail below.
42 English text.
43Point 3.4.
44 Point 3.5.
45 Annexure G informs of "general examples" of such.
46 At 3.9.
47 At 3.10.
48 Points 5.1, 5.2, 5.3 and 5.4 respectively.
a reading, but ethanol in the mouth is a concern because it will influence a reading.

46. Provision is made for the national authorities which specify the EBAs to be used in their
jurisdictions to elect how those EBAs ought to perform if ethanol is detected in the "upper respiratory
tract" of a test subject49.

47. The point made here resonates with the evidence led before me that the EBA (the Alcotest) in
issue is, and can be, programmed in whichever way the national authorities order it to be. In South
Africa, as discussed later it will become apparent that the Alcotest as used in this case was minimally
equipped and programmed.

48. So-called 'interfering substances' are referred to under point 5.5.3 titled "[pjhysiological influence
factors" and listed in detail in Annex C to R 126 - which is in turn labelled as being 'mandatory'.

49. The 'mandatory' provisions of Annex C state that EBAs shall be tested for interfering substances
by means of "dry test gas" - first of ethanol alone and then by means of ethanol to which only one of
the list of given substances has been added at a time. There are nine substances listed and again there
is a note that national authorities may choose to test the influence of other potentially interfering
substances according to the prescribed protocol.

50. Physical influence factors and physical disturbances are listed in 5.5.2 and 5.5.4 respectively and
covered in detail in Annex B and Annex D, both of which are 'mandatory'. These provisions relate to
aspects such as ambient temperature and relative humidity, atmospheric pressure and presence of
hydrocarbons in the environment, power supply, shock and electromagnetic disturbances.

51. Section 6 is titled "Technical requirements" and details the parameters within which EBAs may
operate and still be compliant with R 126. I note that national authorities are advised in some
instances that they may specify requirements over and above those provided for in R 126.

52. It is stated that "[t]he EBA shall be designed to ensure that measurements are made on samples of
deep lung air"50 and details follow which aim to ensure capture of such samples - the requirements
for continuous, uninterrupted exhalation of a minimum quantity of air at a certain pressure and at a
given flowrate.
53. There are prescribed details regarding safety, security and checking as well as failsafe provisions
where the EBA will not render a result and prevent continued use without the checking for correct
operation. The national authority of a jurisdiction may require routine adjustments or checks
"involving a given means"51.

54. Point 6.12, titled "Measuring cycle", refers to "[ajdvisable provisions' in Annex I and provides that
"[njational authorities shall define what constitutes a measuring cycle, i.e. the set of operations which
may permit the operator to conclude whether or not a person is under the effect of alcohol".

55. Annex I is subheaded 'informative' as opposed to 'mandatory' and yet its two introductory
paragraphs indicate that where the content of Annex I is not mandated, equivalent provisions ought to

49 Point 5.5.1 (c).


50Point 6.6.1.
51Point 6.10.4.
be prescribed. The text reads: "Due to the physiological aspects of measuring ethanol and especially
the possibility of ethanol being present in the upper respiratory tracts, the legal authority may require
that EBA's fulfil the provisions in this Annex. Where these provisions are not mandatory the legal
authority should provide procedures with the aim of achieving an equivalent level of confidence in the
validation of results."

56. The provisions of Annex I point 3 state the minimum requirements of "each measurement" which
forms part of a determined measuring "cycle" - verification of a zero starting point and verification of
correct operation of the EBA. These are points 6.8.and 6.9 respectively of R 126 itself.
57. Annex I presupposes a measuring cycle of two breaths spaced a minimum of two minutes apart in
order to safeguard against false 'positive' results. It is debatable whether, in the absence of a second
breath sample, an ECC as part of the Alcotest used in this case can function as a second test.

58. There is a provision titled "Minimum volume"52, which states: "For EBA's that do not monitor
maximum mass concentration during exhalation, measurements shall imply an exhalation volume
equal to at least 1.5L. This shall particularly apply to EBA's that perform a measurement after a
preset volume or period of time for exhaling."

59. There is a repeat warning about ethanol in the mouth at point 6.15.3 and a comment that "it may
be sufficient to include this information in the user manual" - as opposed to an inscription on the
machine itself regarding waiting time before a test which was previously recommended.

60. The "Practical instructions" section53 mentions a logbook, what it ought to contain and how it is
to be managed "[i]f the national regulation prescribes a metrological logbook".

61. Section 8 is titled "Metrological controls" and provides for the criteria which inform "pattern
approval", "initial verification of new EBA's" and "periodic verification". I note that 8.1.5 refers to
Annex E - the 'pattern test' report format54 - which may be amplified according to "national
preference" but the use of which "is mandatory in the framework of the OIML Certificate System".

52Point 6.14.
53Point 7.
54 No test report in the format required by Annex E was ever entered as an Exhibit
62. Point 8.1.2 refers to "[t]the user manual [which] shall be reviewed by the national responsible
body for its completeness and clarity of operating instructions." That point reads: "The user manual
shall be reviewed by the national responsible body for its completeness and clarity of operating
instructions. The EBA and technical documentation shall be visually inspected in conjunction with a
review of specification provided by the manufacturer to determine that requirements 6.1 through 6.16
are met." The deficiencies of the manual in the instant case will become apparent from what follows.

63. The same section55 also provides for a routine test by a user56 and "a chronological written
record" of "at least the results of all routine tests" - "[i]f required by the national responsible body"57.

64. The methodology required to be followed for testing procedures follows in the final part58 which
is titled "Test method" and sets out some formulas to be used. There is reference to the 'mandatory'
Annex B and Annex D and provision for test reports setting out the actual procedures followed in
each case.

65. The salient point is that SANS 1793:2006 states that it is the identical implementation of OIML R
126:1998. That would imply that it has been adopted, in its entirety, as a standard to be followed in
South Africa.

Prosecution guidelines
66. In addition to the legislative framework as outlined above, the Directorate of Public Prosecutions,
("DPP'), added procedural guidelines directed at its staff in order to, inter alia, regulate matters not
specifically provided for in terms of the legislative framework.

67. It is unclear in terms of which section of the National Prosecuting Authority Act59 these
guidelines were issued, therefore I am unable to rule on the effect in law they might have. The fact is
that there are guidelines which have been put in place and cannot be ignored.

68. The November 2005 document60, handed up as part of the defence's exhibits, titled 'Prosecuting
Guidelines for Evidentiary Breath Testing Machines ("EBTMs")', ("the "Guidelines") is divided into
two sections - the first titled 'General Guidelines for Prosecution in Drunk Driving Cases' and the
second 'Guidelines for Prosecution with Evidentiary Breath Testing Machines'.

69. In the second section, which deals specifically with the use of "EBTMs", consists of

five sub-sections which read:

"2.1 The equipment may only be operated by a registered traffic officer who must
have passed an operator's course for the particular model of the machine and must be
issued with an operator's certificate of competence.
2.2. The operator must keep in his/her possession the operator's certificate for the equipment in
question or a certified copy.

55 Section 8.
56 Point 8.4.2.
57 Point 8.4.3.
58 Section 9.
59 The National Prosecuting Authority Act 32 of 1998.
60 It seems to be the most recent one and supersedes the one issued by the Director of Public Prosecutions:
Cape of Good Hope which was also part of the defence's exhibits.
2.3. Only the equipment which complies with Regulation 332(4) of the Regulations in terms of the
national Road Traffic Act may be used. Equipment must be calibrated at least once every six months
by an accredited laboratory and a calibration certificate issued. A certified copy of the calibration
certificate shall be available on site. Equipment that is outside the six month period must be
recalibrated before it may be used for calibration purposes.

2.4. After maintenance and repair of the equipment, it must be recalibrated.


2.5. All calibrations, maintenance and repairs shall be recorded in an appropriate service record,
which is kept for each unit."

70. On the page following subsection 2.5 there is an example of an 'equipment service
record' as well as an example of an 'occurrence register'. No such documents were
handed up as exhibits during this trial.

71. Evidence was led that the component of the Alcotest which measures the absorption of the
infrared monochromatic radiation referred to in R 126 above is calibrated by the National Metrology
Institute of South Africa ("NMISA"). This is done by the 'dry gas' method referred to in R 126
above61 as an alternative to a 'wet bubble train' which is designed to simulate a person's breath.
72. It became clear that calibration of the second, additional, component of the Alcotest is not
performed by NMISA since the 'dry gas' method would lead to damage of this component.

73. The calibration is to be done by an accredited laboratory, which will perform the testing of the
Alcotest and issue the certificates demonstrating compliance with SANAS' standards, SANS62, and
according to the Guidelines63 that calibration must be done at 6 month intervals. The only other
reference to the calibration interval of 6 months is found in Drager's Alcotest instruction manual64.
The Guidelines also state that there must be recalibration after repair and maintenance is done on any
Alcotest65.

74. The science, which is common cause and on the basis of which these offences were created,
becomes more important in the light of the constitutional points raised in the plea proffered by the
accused in this matter.

75. Simplistically, as we have all been taught, arteries carry oxygenated blood away from the heart to
the rest of the body and veins carry deoxygenated blood back to the heart66. Between the heart and
the lungs lies another circuit - the pulmonary circulation - where oxygenation takes place and which
completes the loop of that circuit between the lungs and the heart, feeding into the systemic
circulation via theheart. The carotid artery supplies oxygenated blood and nutrients to the brain and
the jugular vein carries deoxygenated blood and metabolic by-products away from it.

76. The kind of alcohol recreationally consumed is more specifically named ethyl alcohol or ethanol.
It is the presence of this type of alcohol in a consumer's blood which is a particular concern since its
presence therein has the potential to impair driving ability because it is conveyed to the brain via the
bloodstream.

613.9 and 3.10 of R 126.


62 Reg 332A.
63 2.3 of the Guidelines.
64 Drager instruction manual, Page 18.
65 2.4 of the Guidelines.
66 There are two exceptions within the pulmonary circuit: the pulmonary artery which conveys deoxygenated
blood and the pulmonary vein which conversely carries oxygenated blood.
77. A human brain consists of three major parts - the cerebrum, cerebellum and medulla - all are
perfused by cerebral circulation, which is in turn supplied by the body's systemic circulation. The
cerebrum controls the advanced functions, such as reasoning, vision, recognition and emotion, as well
as movement, reflexes, balance and co-ordination. When one consumes alcohol it lowers inhibitions
and affects one's judgment, movement, vision and speech. The medulla controls basic survival
functions such as heartbeat and breathing, both of which processes can be stopped entirely by
excessive alcohol consumption67.

78. Nerves in turn carry messages to different parts of your body with instructions to do things. The
brain and the nerves are made up of neurons which in turn carry the messages from your brain and
back. The neurons do not actually touch one another - there are spaces between them called synapses.
Electrical signals carry messages the length of the neuron and neurotransmitters carry the messages
across the synapse to the next neuron. It is in the synapses that alcohol affects the working of your
brain, as a couple of drinks will affect the efficiency with which neurotransmitters carry messages
between the neurons68.

79. Despite the fact that a drink or two cheers up most people, alcohol is actually a nervous system
depressant - the more you drink, the more difficult it is for your brain to function properly. This is
why someone who has had too much to drink has difficulty in walking a straight line, or speaks in a
slurred fashion, drives in a weaving pattern across the road and is slow to brake in an emergency
situation.

80. Driving requires the simultaneous and rapid use of various basic skills ranging from perception
and judgement through decision-making and finally to physical reaction. When a driver has had too
much to drink that driver's ability to effectively coordinate these processes is negatively impacted.

81.Therefore it has been generally accepted that a drunk driver may typically be observed to, inter
alia, have: a limited ability to judge distances - between both stationary and moving objects; difficulty
in maintaining a constant speed - and therefore a steady following distance; difficulty in maintaining a
direct path of travel -frequently deviating from it and then compensating therefor; a reduced ability
adequately to observe surroundings - which would include traffic signs and signals, other vehicles as
well as pedestrians; as well as an increased inability to react timeously and take corrective or evasive
action - which is, ultimately, the cause of accidents.

82. Before the advent of routine blood testing, the level of impairment of a driver due to alcohol
consumption used to be gauged at the scene by officers trained to determine such. Inevitably, drivers
deemed sufficiently impaired to be criminally prosecuted would challenge this observation in various
ways. An obvious basis would be that the impairment may have been caused by something other than
a quantity of ethanol sufficient to cause such impairment.

67 W E Cooper et el Alcohol, Drugs and Road Traffic (1979) 149 and following.
68ibid
83. When the only tests done were physical examinations, they were usually performed by a medical
practitioner. The ultimate purpose thereof was to gauge a person's level of impairment and this was
done by, inter alia, assessing: the general appearance of the object, including the eyes; respiration,
pulse and temperature; the presence of a smell of alcohol; behaviour - including co-ordination reflex
action and level of alertness.

84. The clinical evaluation would be reduced to a report on the basis of which the examiner could
later testify. In spite of the lengthy procedure, it was not deemed to be sufficiently reliable and not a
real measure of the quantity of alcohol a person had consumed. So, when blood sampling became a
viable option, the enquiry was simplified to the question of whether or not a person's blood alcohol
concentration exceeded the legal limit.69
85. When it became possible to scientifically determine the quantity of ethanol in an impaired driver's
blood, that development became the logical progression in order to avoid the subjective element
inevitably present when officers were tasked to gauge a person's level of impairment caused by
ethanol. Blood samples would be taken and the level of ethanol in the driver's blood would actually be
measured as a scientifically based indication of the impairment feared.

86. As time went by, science, equipment, and the understanding of the relationship between ethanol
consumption and ethanol impairment all developed to the point we know it today. We know, for
instance, that some persons may develop a tolerance towards high consumption of ethanol which
others do not have. This will result in a situation where the highly tolerant person and the not so
tolerant person may both produce an identical test result but the latter will exhibit a greater degree of
impairment.

87. It also became clear that the rate at which alcohol is absorbed and eliminated may differ. While
elimination begins as soon as someone begins to drink, if the person continues drinking beyond that
person's ability to metabolise70 the alcohol, the concentration found in the blood will continue to
rise. This is generally referred to as the 'absorptive phase'. Thereafter, when absorption stops, there
will be a period -referred to as a 'plateau' - before elimination, and thus a decline, begins. That is
generally referred to as the 'post-absorptive phase'. Evidence was presented, aided by means of
graphs, to demonstrate a so-called 'absorptive curve'.
88. Clearly, it is not possible to individualise each test to each driver tested to the point that there can
never be any question of a lack of fairness to any one individual. Therefore a balance needs to be
sought between the scourge which is sought to be eradicated and the rights of each individual driver
with an ethanol reading in either blood or breath in excess of the legislated amount. The legislature
has an obligation to introduce measures to protect society from the effects described above.

89. Drinking and driving in South Africa has for many decades been a problem that needed to be
addressed. In 1913 the Transvaal, as it was then, enacted legislation addressing this problem and in
this province in 1926 the Cape Motor Car Ordinance 12 of 1926 stated that it was an offence for a
person to be in charge of and to drive a motor car on a public road while under the influence of
intoxicating liquor71 (my emphasis). This ordinance was later repealed in 1938 by the Motor Vehicle
Ordinance 15 of 1938, which stated it was an offence for a person to drive a motor vehicle on a public
road while being under the influence of intoxicating liquor or narcotic drugs72 (my emphasis).

69 WE Cooper, T G Schwar, L G Smith Alcohol, Drugs and Road Ttraffic (1979) 155-7. An issue in regard to the
admissibility of an Exhibit marked K arose during this trial. Since it was not necessary for the court to rely on the contents
thereof, there is no need for me to make a finding in this regard.
70Once the drivers liver can no longer adequately process the volume of alcohol ingested.
71W E Cooper et el, Alcohol Drugs and Road Traffic (1979), chapter 1, introduction page 1.
72W E Cooper et el, Alcohol Drugs and Road Traffic (1979), (Ordinance 15 of 1938, Section 48 (1)(b).
90. By the end of 1938 it was an offence for a person to drive a motor vehicle on a public road while
being under the influence of intoxicating liquor or narcotic drugs in the Transvaal, Cape, Orange Free
State and Natal. During 1955 and 1957 attempts were made to consolidate the various ordinances
however, Transvaal still had their own ordinance. In 1966 a further attempt was made for the
uniformity of theordinances with success, the Road Traffic Ordinance 21 of 1966 came into operation
on 1 January 1967 and for the first time introduced an offence that related to blood alcohol
concentration.

91. Section 140 of the ordinance dealt with driving under the influence. It stated:

1. "Any person who on a public road -


(a) Drives a vehicle; or
(b) Occupies the driver's seat of a motor vehicle, the engine whereof is running,
While under the influence of intoxicating liquor or a drug having a narcotic effect,
shall be guilty of an offence....
2. Any person who on a public road-
(a) Drives a vehicle; or
(b) Occupies the driver's seat of a motor vehicle, the engine whereof is running,
While the percentage of alcohol in his blood expressed in grams per one hundred
millilitres of blood is not less than 0.15 per cent, shall be guilty of an offence...."

92. Over the years the legal limit of 0.15 gram per 100 millilitres was reduced to 0.05
gram per 100 millilitres of blood. This calculation is based on an adult male, weighing approximately
68 kg and who has eaten a meal before or during the consumption of alcohol. Women, we have
learned, metabolize alcohol faster and will reach their limit faster; but each individual is unique and is
affected by alcohol differently73.

93. In respect of a contravention of section 140 (2)-(3) of the Ordinance the law had developed certain
safeguards, either through legislative means or through the positive law, in order that the taking of and
the analysis of a blood sample to produce a result could be relied on. For example the Criminal
Procedure Act described the procedures of drawing the blood74, the type of container was prescribed,
the amount of blood to be taken and the preservation of the sample was important. Precautions as to
any form of contamination were also taken75.

94. It is common cause that blood sampling is still one of the most accurate forms to measure the
blood alcohol concentration. In South Africa the preferred method evolved from blood serum
analysis76, which involved several steps, to the currently used and simpler 'head space' 77 gas
analysis. I note with interest that the latter method depends on a principle named 'Henry's Law' which
will be discussed in detail below.

95. The testing of a driver's blood for the purpose of prosecution in terms of s 65 of the RTA seeks to

73Arrive Alive Website: www.arrivealive.co.za , comments are common cause.


74 Criminal Procedure Act 51 of 1977 section 37(c) states: "take such steps as he may deem necessary in order to
ascertain whether the body of any person referred to in paragraph (a) (i) or (ii) has any mark, characteristic or
distinguishing feature or shows any condition or appearance: Provided that no police official shall take any blood sample of
the person concerned nor shall a police official make any examination of the body of the person concerned where that
person is a female and the police official concerned is not a female;"
75 S v Nel 1967 (2) PH H349 (GW); S v Ngcobo 1969 (1) SA 249 (N); S v Pillay 1969 (2) SA 248 (N); S v Greef 1970 (4)
SA 704 (O); S v Cook 1972 (2) PH H(S) 63 (N); S v Van Zyl 1972 (2) PH H(s) 102 (NC); S v Marx 1972 (3) SA 61 (E); S v
Kessel 1975 (1) PH H27 (C); S v Brumpton 1976 (3) SA 236 (T);S v Glegg 1973 (1) SA 34 (AD); S v Francis 1977 (1) SA
643 (AD);S v Rossouw 1971 (2) SA 99 (C).
76 Whole blood is first separated into solids and serum. The serum is then analysed for alcohol content and the
concentration of alcohol in the whole blood is then calculated by means of a formula.
77 By means of automated gas-liquid chromatography.
determine the level of ethanol in that driver's blood - or more simply blood alcohol concentration,
("BAC"). While it is the ethanol in the arterial blood supply to the brain which impairs driving ability,
for the sake of convenience78, bloodalcohol testing is routinely carried out by means of a sample
taken from a vein at the elbow rather than an artery at the neck of a person. Therefore the reading
obtained will be venous blood alcohol concentration, ("VBAC"), rather than arterial blood
concentration, ("ABAC).

96. This difference between ABAC and VBAC79 is significant because of the 'absorptive curve'
referred to above. While the alcohol in the body is being absorbed any ABAC sample will be higher
than a VBAC sample. The converse will apply during the elimination phase80.

97. Evidence was presented that Shadow Centre was designed and set up for the purpose of breath
alcohol testing. The reason given, in the main, was that the forensic laboratories tasked with blood
alcohol analysis were not in a position to render results timeously81. Accordingly, a decision was
made to provide sites where the alternative method of alcohol testing, namely by breath sampling, can
be conducted.82 This unfortunate and unacceptable failure frustrates the effective prosecution of
offences dependent on blood testing.
98. It is for this reason that the breath testing is used and relied upon - it is a far less time consuming,
economically more advantageous as well as preventing all the potential negative impacts of working
with blood. When a breath test is done, one does not have to wait for months for the results since the
results are printed by the Alcotest immediately after the breath sample is taken and this would lead to
the realisation of speedy and effective justice. As I have indicated above however, it remains clear
that any method used must comply with the rule of law.

99. Instruments designed to test breath alcohol, {"BrAC"), were developed since the 1950s as a less
invasive and more convenient way of measuring a person's BAC and were predicated on the
applicability of 'Henry's Law'83 - a law of physical chemistry which has been generally accepted to
apply to a wide range of dilute solutions.

78 It is much less invasive and therefore the level of skill required to draw the sample is lower.
79Termed 'arteriovenous lag'.
80 In terms of section 65(5) the presumption is "...any specimen of breath of the person concerned was not less than
0,24 milligrams per 1 000 millilitres of breath taken at any time within two hours after the alleged contravention, it shall be
presumed, in the absence of evidence to the contrary, that such concentration was not less than 0,24 milligrams per 1 000
millilitres at the time of the alleged contravention..." This presumption is applicable to the accused and the presumption will
succeed on the basis that the specimen of breath was taken at the Shadow Center was indeed taken within two hours of the
alleged offence.
81 The Cape Argus - 29 August 2011: In South Africa there is a backlog of toxicology reports. Media reports
suggest that the Health Department takes several months before one could obtain the results of the toxicology
reports. This has become a problem in the prosecution of individuals who have cases pending against them for
driving under the influence.
826 There is also an on-site facility for blood sampling, in the event that such be required.
83 Cooper et el, Alcohol Drugs and Road Traffic 1979, chapter 25 Breath Alcohol, page 268, as follows:
'In 1910 Cushny reported on the pulmonary excretion of acetone, chloroform, alcohol and other substances by
animals receiving various-sized doses of these compounds and concluded: 'The exhalation of volatile
susbstances from the lungs is exactly analogous to their evaporation from solution in water and the pulmonary
cells seem to be purely passive in this process' Widmark in 1920 and Briggs & Shaffer in 1921 reported
quantitative studies with animals which indicated that the distribution of acetone between blood and alveolar air
obeys Henry's Law. Shaffer & Ronzoni in 1923 and Haggard in 1924 showed that the behaviour of ether in the
lungs also obeys Henry's Law. Liljestrand & Linde in 1930 and Haggard & Greenberg in 1934 established that
the same principle applies to alcohol in the body. Initially two methods for the determination of alveolar air
alcohol content were developed, the one employing total expired air, the other alveolar air.
Bogen in 1927 described a breath alcohol method employing total exhaled air and was the first to propose
breath alcohol analysis for medico-legal purposes. The use of alveolar air was reported by Liljestrand & Linde
in 1930. A special apparatus, the Alcometer, was developed by Greenberg & Keator to examine such samples. A
third breath method using the alcohol-carbon dioxide ratio in expired air was reported by Harger in 1931. The
portable apparatus developed later was named the Drunkometer. Moore & Forrester in 1941 published details
of their apparatus which also employed the alcohol-carbon dioxide ration. They named their apparatus the
Intoximeter.'
100. It is undeniable that Henry's Law demonstrably applies in a closed vessel such as a capped test
tube. There, at a given temperature and pressure84, an equilibrium will form between an amount of
gas dissolved in a liquid and the amount of that gas in contact with that liquid's surface. In other
words the amount of molecules of that gas in the liquid and above the liquid will become directly
proportional over time.

101. The type of gas sought to be measured for the purposes of both evidential blood testing85 as
well as evidential breath testing is ethanol and the liquid is blood. According to Henry's Law, applied
as outlined above, the same amount of ethanol will be found in the blood as in the air above the blood,
once equilibrium has been reached.

102. It had been accepted since the 1930s that the principle applicable in Henry's Law as
demonstrated in a laboratory could be replicated in the human respiratory tract. Deep lung, more
specifically alveolar, air had been accepted to be the repository for the quantity of ethanol sought to
be measured since the alveoli are directly perfused by ethanol-containing capillary blood. The ethanol
concentration in the blood supplying the lungs would then be reflected in the air expelled from the
lungs once a balance between the two had been achieved.

103. ABAC, it was accepted, was precisely related to the concentration of alcohol in alveolar air,
{"aBrAC"), once the two had equilibrated. The aBrAC would thereforebe directly reflective of ABAC
and thus a virtually direct method of determining the potential impairment of a consumer's driving
ability. The Alcotest is premised on the principle of Henry's Law in that it was designed to measure
samples of alveolar air.

104. More recently, there has been a challenge to the applicability of Henry's Law in evidential breath
testing. A shift has been proposed86 away from that principle towards a 'new paradigm' which is
predicated on the following principle: the respiratory tract does not behave like a closed test tube and
Henry's Law can therefore not demonstrably apply.
105. This 'new paradigm' states that the airways between the alveoli and the mouth of an individual are
not 'anatomic dead space' such that they do not interact with the air which travels from the outside
environment to the alveoli and back again.

106. The bronchial airway, according to this 'new paradigm'87, interacts with the passing air both on
inspiration and expiration and thus has an effect on the ethanol gas sought to be measured.
Accordingly, when one breathes in, the mucosa of the bronchi heat and humidify the inhaled air and
in that PROCESS release some highly soluble ethanol gas into that air on its way into the alveoli. Then,
when one breathes out, the process is reversed and in cooling and dehumidifying the exhaled air,
some of the ethanol gas is deposited onto the mucosa of the bronchi. This, it issuggested, would then
mean that it would not be possible to measure unaltered alveolar air at the mouth.

107. In the common understanding of the forensic community it had been accepted that the
graphically represented flat section at the end of a graphically represented complete sample of breath
taken with a breath testing instrument is an 'alveolar plateau'88. This 'new paradigm' challenges that

84 The calibration formula used by NMISA is @ 34*C + 101.325 kPa.


85 Either by means of gas-liquid chromatography {"head-space gas measurement') as generally used in South Africa,
or the 'gold standard' of gas chromatography - mass spectrometry ("GC-MS").
86 Michael P. Hlastala, PhD - vide Journal of Forensic Sciences March 2010, volume 55, number 2, page 451.
Toxicology paper titled "Paradigm Shift for the Alcohol Breath Test".
87 James G. Wigmore, BS - vide Journal of Forensic Sciences January 2011, volume 56, number 1, page 266 -
comments on the Hlastala paper and points out that the term "should probably be more accurately described as a
model refinement... [since] the interaction of breath alcohol with the mucosal surfaces of the respiratory passages has been
known since at least 1964."
88 Hlastala article, page 452 and fn 7 and 8 therein.
understanding. In other words, it states instead that the alveolar plateau is not necessarily that, but
simply a plateau reached when a person ceases exhaling and may not be indicative of alveolar air at
all.

108. It is not clear how the principles proposed by this paradigm shift can be conclusively measured
against the principles of the accepted old paradigm if it is not in fact possible - as the 'new paradigm'
itself appears to state - to sample alveolar air. This 'new paradigm' indicates that what is in fact tested
is essentially bronchial air89. This would then mean that the reading given by a machine testing a
person's breath would actually not be measuring aBrAC but bronchial BrAC ("bBrAC").

109. Ultimately, the question posed is whether an instrument, if sufficiently specified as well as
correctly programmed and operated, can deliver a result based on which a person may properly be
prosecuted given the South African legislative framework and constitutional imperatives. The premise
on which a breath testing instrument is based may not be unassailable in scientific terms, but the
question I have to consider is whether the Alcotest can deliver a result based on which a person may
properly be prosecuted - irrespective of whether it was built on the basis of the old paradigm and not
the new one.

110. The defence's position was that the Alcotest, admittedly predicated on the old paradigm of
measurement of aBrAC, was therefore not capable of producing a result reflective of BAC, whether it
be ABAC or VBAC. The State obviously espoused a contrary view.

111. In considering the evidence presented in respect to the "old paradigm" and the proposed 'shift' to
the "new paradigm", I have to consider what result the Alcotest in question delivers. In other words,
does it make a material difference to the result whether the air measured actually originates from the
alveoli or the bronchi and the resultant BrAC represents aBrAC or bBrAC?

112. In order to answer that question I shall turn to the evidence before me which I accept. The most
tangible are the various diagrams and graphs which seek to demonstrate the principles involved.

113. The lungs are perfused by the pulmonary circulation loop, and deoxygenated blood becomes
oxygenated blood when the gaseous exchange between carbon dioxide takes place in the alveoli. This
is why it has been accepted that there would be an equivalent gaseous exchange between BAC and
BrAC. The airways,including the bronchi are perfused by the body's main, or systemic, circulatory
system and it was accepted that no gaseous exchange therefore took place outside the alveoli.

114. As discussed above, ABAC is more indicative of potential impairment than is VBAC because
the most recently oxygenated blood from the lungs supplies the brain via the carotid artery. In
contrast, the blood sample which renders VBAC is taken on the return journey towards the lungs at a
superficial vein90 at the elbow -some distance from the brain. There have been sufficient graphs
shown illustrating the difference between the two that there can be no doubt in that respect.
115. Since the airways, including the bronchi and connective tissues of the lungs, are perfused by
arterial blood of the systemic circulation they are in fact perfused by the same type of blood which is
part of the same circuit as the one which supplies the brain.91

116. The main proponent of the 'new paradigm' in fact accepts that "strong correlation between BrAC

89 "The alcohol that arrives at the mouth comes essentially from the airways and not from the alveoli." Hlastala
artice, page 453.
90 The three peripheral veins usually used, in order of preference are: median cubital, cephalic and basilic.
91 Expert testimony of Dr. P Berman R 601:14-16.
and arterial alcohol concentration"92 was demonstrated by a study published in 200793. He also
accepts that as being "consistent with the newparadigm in that exhaled breath alcohol is closely
related to the alcohol originating from the bronchial (systemic arterial) circulation perfusing the
pulmonary airways"94.

117. This 2007 study95 was performed on a type of machine which allows 'free exhalation' in other
words exhalation not using a tube. It sought to analyse whether this type of equipment could render an
accurate result of BrAC in relation to ABAC. VBAC was tested for comparative purposes since it
"serves as a standard in forensic practice for the prosecution of drunk drivers and as a measure of their
impairment and drunkenness"96. For the purposes of the study, it was accepted that "breath
alcohol ... depends on the equilibration of alcohol ... between the pulmonary capillary blood and the
alveolar air"97 and that what was sought to be measured was aBrAc. No comparison was made in
that study between the results measured with this equipment and equipment which uses a tube.

118. Neither its main proponent, nor the 'new paradigm' itself, concludes that it is not possible to
accurately measure a type of BrAC which is accurately reflective of ABAC98. The 2007 study,
quoted with approval, in fact makes it clear that the equipment therein tested "predicts almost
precisely the arterial blood concentration.99 This study also comments that it is not "a fair
comparison”100 to compare the accuracy of machines which were examined in separate trials against
each other. The paper on the proposed paradigm in fact concludes with suggestions in order to
improve the accuracy of existing equipment - which uses a tube - and lists variable factors which need
to be adequately controlled so as to render a fair test result.

119. Having found that there is a strong correlation between the two, subject to the safeguards
expressed in State v Chun101 {"Chun"), even if there is merit in the new paradigm, it would not
make a substantial difference which would lead to the irrational application of the test.

120. It has further not been demonstrated that any application of section 65(3) or (5) that a conviction
or acquittal may depend solely upon the choice between blood or breath testing. It has been
historically accepted that the contravention of blood alcohol concentrations above a certain limit is
rational. As I have shown above, a direct correlation between arterial blood and breath alcohol has
been scientifically established. This correlation is sufficiently related so that similar inferences which
are drawn from blood alcohol could be drawn from breath alcohol - subject to necessary safeguards
prescribed in terms of the Regulations and furthersuggestions which have been implemented in other

92 Id.
93 Hlastala artice, footnote 52.
94Hlastala article, page 454.
95 Lindbergh, L et al, paper: "Breath alcohol concentration determined with a new analyser using free exhalation predicts
almost precisely the arterial blood alcohol concentration" in Forensic Science International 2007; 168:200-7.
96 Lidbergh artice, page 201.
97 Id.
98 He also accepts, in a reply to criticism of his paper cited above, that BrAC remains closely related to ABAC
during both the absorptive and the elimination phase. Journal of Forensic Sciences November 2010, volume 55,
number 1, page 1665.
99 Lindbergh paper, title.
100 Lindbergh paper, page 206.
101 enChC e etatS943 A.2d 114 (N.J.2008).
jurisdictions in order to deliver an "acceptable" result102.

121. Whilst it is accepted that breath and blood alcohol limits can differ from individual to individual,
it is possible to overcome any potential prejudice by having regard to the particular characteristics of
the particular subject so as to compensate for that.

122. In the case of Merafong Demarcation Forum And Others v President Of The Republic Of South
Africa And Others103 the following was state:

"The exercise of public power has to be rational. In a constitutional State arbitrariness


or the exercise of public power on the basis of naked preferences cannot pass muster.
Judgments of this court suggest that, objectively viewed, a link is required between the
means adopted by the legislature and the end sought to be achieved. The fact that rationality
is an important requirement for the exercise of power in a constitutional State does not mean
that a court may take over the function of government to formulate and implement policy. If
more ways than one are available to deal with a problem or achieve an objective through
legislation, any preference which a court has is immaterial. There must merely be a
rationally objective basis justifying the conduct of the legislature. Provided a legitimate
public purpose is served, the political merits or demerits of disputed legislation are of no
concern to a court. In Pharmaceutical Manufacturers Chaskalson P made it clear that the
rationality standard does not mean that courts can or should substitute their opinions for the
opinions of those in whom the power has been vested. A court cannot interfere with a
decision simply because it disagrees with it or considers that the power was exercised
inappropriately. The question of the rationality of the Twelfth Amendment was left undecided
in Matatiele 2. In UDM 2 it was held that rationality is a minimum requirement for the
exercise of public power and that the Pharmaceutical Manufacturers qualification 'applies
also and possibly with greater force to the exercise by Parliament of the powers vested in it
by the Constitution, including the power to amend the Constitution'. In view of the finding
below on rationality in the light of the facts of this case, it is not necessary to take this
specific point any further. The respondents argue that it is eminently rational to do away
with cross-boundary municipalities. The applicants agree with the idea of abolishing cross-
boundary municipalities and do not attack the rationality of the Twelfth Amendment as a
whole, but only the part of it that locates Merafong in North West. Furthermore, the fact that
it is rational for the whole municipality to be located in a single province does not
necessarily mean that the province should be in North West, rather than Gauteng, counsel
for the applicants specifically contended".

123. I find that there is no merit in the constitutional challenge to section 65 (5) as pleaded by the
accused. Consequently I am not in agreement with the defence stating:
"2.4 that section 65(5),(6) and (7) of Act 93 of 1996 conform to the requirements of the
rule of law and the Constitution of the Republic of South Africa, namely the legislation
rationally serves a legitimate purpose of government without vagueness, arbitrariness or
capriciousness, in that:

102 Rv Powichrowski2009 ONCJ 490; R v Duff [2011]3 W.W.R.703.


103 Merafong Demarcation Forum And Others v President Of The Republic Of South Africa And Others 2008 (5)
SA 171 (CC) at 192 para 62-64; see also: United Democratic Movement v President of the Republic of South Africa and
Others (African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another
as Amici Curiae) (No 2J2003 (1) SA 495 (CC) (2002 (11) BCLR 1213; [2002] ZACC 21) at para 68 (UDM 2); Bel Porto
School Governing Body and Others v Premier, Western Cape, and Another2002 (3) SA 265 (CC) (2002 (9) BCLR 891;
[2002] ZACC 2) at para 45; Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the
Republic of South Africa and Others200Q (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1) at para 85
(Pharmaceutical Manufacturers); Prinsloo v Van der Linde and Anothert997 (3) SA 1012 (CC) (1997 (6) BCLR 759;
[1997] ZACC 5) at para 36.
2.4.1. breath alcohol has no scientifically established direct correlation with a
person's motor or perceptual skills and the ability of that person to drive a motor
vehicle;
2.4.2. the correlation between breath alcohol and blood alcohol levels differs from individual to individual
and therefore a conviction or acquittal may depend solely upon the type of test used and is therefore
arbitrary and unreasonable."

The Drager Alcotest 7110 MK 111 as used in this case

124. It is unclear from the evidence presented whether Alcotests used in other provinces are of the
same type and model as the one used in this case. Likewise, it is not clear whether, inter alia,
calibration and maintenance of those other Alcotests take place in the same way as discussed here. I
will therefore not comment on the reliability thereof, but I am of the firm view nonetheless that all are
required to comply with the legislative framework as set out above.

125. While evidence was presented in this trial that the type of machine in question is capable of very
many things, it also became apparent that the model used to test the accused was not ordered with all
the possible devices which are available104, nor was its operating system as comprehensive as it
might have been105.

126. The Alcotest used in this case, as appears reflected on the printout it delivered106
- and will appear from the comparative analysis I will discuss below, is minimally equipped: the
"SUBJECT MEASUREMENT" segment reflects "FAILED BLOWING 0"; there is a time shown
at which the test took place; that is followed by a sequence
- "BLANK" , "MEASURE VALUE", "BLANK" - the import of which will become clear shortly;
followed by "RESULT" given as a figure followed by "mg/l".
127. Evidence as to the workings of the Alcotest was presented by a Drager expert107 from which I
understand the following basics: there needs to be one 'successful' breath sample taken on which the
machine will perform two tests. The first test directly tests the breath sample and the second
concurrently tests the accuracy of the first test as well as checking for the presence of any 'interfering
substances'. If all is 'within tolerance', a test report will be printed on which the result of the first test
will be displayed - with such additional information as has been programmed to appear thereon. All
functions of the Alcotest - sequence of events, procedures to be followed, analysis performed, result
produced - are controlled by unseen software which gives visual, and sometimes audible, prompts to
the operator.

128. It also became apparent that the operating sequences and instruction manual referred to in
sections 6.12 and 8.1.2 respectively of R 126 above are - in the form in which they exist here - not as
comprehensive or as clear as it is possible for them to be. Simply put, the instruction manual and
operating sequences does not conform to the prescribed detail as to be found in OIML R 126. It is on
this manual that training of the operators is based that ultimately leads to a result upon which
prosecuting authorities want courts to rely.

129. Further, the manual titled "Drager Alcotest 7110 Instructions for Use"108 appear confusing in

104The hardware or components of the machine (and accessories).


105 The software or programming which runs the machine (and accessories).
106 Pasted into one of two designated spaces of a document handed up as Exhibit F. I note that the second
space has been left empty.
107Dr. J Sohege
108Part of defence Exhibit B, pages 6-31 thereof.
that the second page interposes the additional designation "MK 111 RSA" while the later content
variously refers to "the legal system of the Federal Republic of Germany”109, a location of "Police
Station Kapstadt”110 and a time period between inspections in accordance with a framework
document of "Great Britain"111.

130. The last page of this manual designates a part number - 83 14 647 - to a model termed "Alcotest
7110 MK III RSA, complete", but then goes on to list numbers for "[s]pare and wearing parts"
ranging from paper for the printer to a "Drager-Keyboard".112 It would appear that the printer is
"integrated" while the keyboard is an "[o]ption" which allows for the entry of "[additional data for the
record".113

131. The "Functional description" 114 of the Alcotest reads as follows:

"The ALCOTEST 7110 analyses the alcohol content of the air exhaled by the person being
tested. The alcohol measuring system analyses the alcohol concentration in a measuring cell
with the assistance of the infrared absorption (IR). The attenuation of infrared radiation by the
breathing air sample gives an indication of the amount of alcohol contained in the
sample"115

Additionally, to detect the presence of interfering substances and to control the IR-system, a
second analytical system (using an electrochemical fuel cell) is integrated in the
instrument.116

The instrument adapts to the respiratory physiology of the person being tested. It monitors the
exhalation procedure and measures the exhalation volume. "117

132. The "accredited test laboratory" used for the purposes of calibration of the infrared cuvette,
{"IRC"), of the Alcotest, as required both in terms of Reg 332A as well in terms of the Guidelines,
was NMISA. Evidence was however led that NMISA does not attend to the calibration of the
electrochemical cell, ("ECC"), because it is not equipped to use the recommended 'wet bath'

109Page 3 of the manual.


110Page 8 thereof.
111 Page 18.
112 Page 24.
113 Page 5.
114 Page 5.
115 Infrared spectroscopy is the measurement of electromagnetic radiation wavelength of the infrared
spectrum. This is done in a test chamber designed for the purpose called a 'cuvette'.
116Electrochemical technology measures the curve of electrically induced chemical oxidation of a substance. This takes
place in a test chamber designed for that purpose called a cell.
117 By means of sensors programmed to monitor the existence - or absence - of given parameters.
method.118 Accordingly, Drager Service SA itself adjusts the ECC once the IRC has been calibrated
by NMISA using dry gas.119

133. No evidence was led that Drager is an accredited laboratory, and no calibration certificate was
proffered in respect of calibration of the ECC. The chain of custody of the Alcotest was explained as
follows: the Alcotest is delivered to Drager by the traffic authorities whereafter Drager will first
conduct servicing thereof -documentation presented however showed that an 'adjustment' is made at
the same time - the Alcotest is then presented to NMISA and the calibration as discussed above is
performed by NMISA, Drager then receives the Alcotest from NMISA and adjusts the ECC to
comply with the parameters set by the calibrated IRC before it is returned to the traffic authorities.
This process is never independently verified.

134. The reader is instructed to "[pjlace the instrument in a "Gas Simulator Unit" before plugging in,
switching on the unit and pressing the start button "[t]o attain the 'measuring' position".120 As
previously discussed, the Alcotest is calibrated and so 'verified' by NMISA using a dry gas cylinder.
No evidence was presented that any 'gas simulator unit' is routinely used other than in a laboratory
environment.

135. A section titled "Preconditions for the person being tested"121 is interposed at that
point, which lists essentially four issues of principle:

1. That a 15 minute waiting period is necessary between the last intake of any alcohol-containing
substance so as to avoid a "impermissibly biased measurement". That the same waiting period is
to be observed after "vomiting or belching", for the same reason.
2. That a 5 minute waiting period is necessary after smoking in order to prevent possible damage
to the unit's sensors.
3. That "the person being tested should breathe normally and evenly, and not breathing in or out deeply
several times (hyperventilation)".
4. That the "[a]mbient conditions for measurement" need to be in place, which include an absence of
alcoholic vapours in the ambient air - as tested by the environment check function of the unit - as well
as "excessive tobacco smoke". No evidential measurements must be performed in environments
where there is any alcoholic vapour present.

136. Step-by-step instructions follow - both for operation without a keyboard122 as well
as operation with a keyboard123. The keyboard entry function allows for input of data which not
only personalises the printout with the person's name but also provides other necessary information.

137. The unit is equipped with a display panel as well as an audible alarm with which it
communicates its state to the operator. For instance, at start-up, it will display the message
"AUTOTEST", followed by "OK" and "1 x BEEP" to indicate that it is ready to proceed to the next
phase and so forth.124

118
119 Dr. A Botha
120 Page 6.
121 Page 7.
122 Page 9.
123Page 11.
124 Page 8
138. There is a warm-up phase because "[i]n order to avoid condensation all parts in contact with
breathing air are heated up." A warning follows: "[b]lowing into the instrument during warm-up is not
allowed" and the "READY" state is signalled by "2 x BEEP".125

139. The section numbered 7, is titled "Performance of measurement" and is divided into six
subsections, the first of which is the "[s]tart of measurement (without keyboard)"126 and explanatory
text which states that each procedure begins automatically with the flushing of the system - evidence
was led that this is done by my means of ambient air in spite of the wording which reads "[t]he gas
passed through the instrument"127 - accompanied by the sound of the pump and a message
"PURGING".

140. The machine performs an "ENVIRONMENT CHECK" by analysing that freshly pumped air in
its previously mentioned ECC, and "[i]f no alcoholic vapours are detected", it goes on to perform a
test of its "calibration" while displaying "BLANK CHECK". This "calibration" test is designed to be
performed on the IRC with the aidof dry gas which is fed into the unit from an "attached gas
cylinder". No evidence was led that there was any external device attached to the Alcotest for 'field
testing'.

141. If the machine does not detect any problems in respect of its operation or its environment, the
next phase will follow, which in the manual is titled "Breath test" and states that the unit "is now
ready for the breath test of the subject".128

142. I note that the sentence continues as follows "and requests for the first of two breath
samples"129 while the display reads "PLEASE BLOW". Evidence was nonetheless led that, in
South Africa, only one breath sample is routinely required by the machine and consequently taken by
the operator. There are 20 of the "asterisks" in the display which "indicate increasing volume already
exhaled".

143. The instructions continue with the following words: "[i]f the breath sample is accepted
according to the breath sampling requirements, the instrument gives a 'stop' command in the
display."130 There is a caution regarding interruption of blowing and reblowing after stopping, both
of which are "to be avoided!".131

144. Evidence regarding the abovementioned 'breath sampling requirements' revealed the following:
one interrupted breath is needed; of a minimum volume of 1,5 litres; delivered at a given pressure and
speed - which displays as a progression of 20 "asterisks"; and an absence of error messages.132

145. If an "adequate" - presumably in respect of the abovementioned breath sampling requirements


programmed into the machine - breath sample is completed, the sequence will end with a message to
"REMOVE MOUTHPIECE"133.

125 Id
126 Page 9.
127 Id.
128 Id.
129 My emphasis.
130 My emphasis.
131 Page 10.
132 No expert evidence was lead regarding the software of this Alcotest specifically in regard to the exact
parameters which are programmed as 'breath sampling requirements'.
133 The mouthpiece is disposable and comes packaged as an individually sealed part.
146. The measuring procedure ends with another automatic "PURGING" sequence, this time
described as being performed "again with ambient air" and is completed with another "final internal
check" while the display shows "BLANK CHECK". Presumably, given the explanation related to this
display earlier in the manual, it is another test performed by the ECC.

147. As outlined above, the manual states that the actual breath alcohol test is performed by the IRC.
This would then have to take place before the next step described is possible - display of the result.

148. The result, according to the manual, is displayed "[i]f breath sample and details of measuring are
met during the whole sequence" as "RESULT" followed by "0.00mg/l". The instructions interpose
that "[i]f any requirement was not met, an adequate error message is displayed".134
149. There are warning messages listed and explanations therefor135 designed to warn the operator
of errors. Those listed in these sections relate to the readiness of the machine - "NOT READY" - and
to the breath samples themselves - "ALCOHOL CONCENTRATION NOT STABLE", "MINIMUM
VOLUME NOT ACHIEVED", "BLOWING TIME TOO SHORT" and "MOUTH ALCOHOL". A
further list titled "Fault - Cause - Remedy (Most important messages)" can be found at section 11,
towards the end of the manual.136

150. The third subsection details the printing procedure for the result and it is stated that the default
setting is for one "measurement record" to be automatically printed, with a second on demand being
possible.

151. Thereafter the fourth subsection titled "Start of measurement (with keyboard)" begins with
instructions how to connect the keyboard and activate the "keyboard function". Those are followed by
these sentences: "By pressing the red button the instrument is ready to receive the requested inputs"
and below, in italics, "NB! With every request for an entry at least one character of information must
be entered before the next request will follow. This character may be only one SPACE."137

152. The operator is then prompted to enter the "personal data of the subject" in the following
sequence: surname, name, case number (or 'space' if none), date of birth (in 'dd/mm/yy' format only),
gender ('M' or 'F') which is "mandatory", each time followed by 'enter'138 until the message "INPUT
SUBJECT DATA FINISHED" is displayed.

153. This keyboard sequence would precede the previously set out non-keyboard sequence which the
operator is at this point referred back to by the following instruction: "by pressing >ENTER< the
instrument starts automatically with the measuring procedure which is described in 7.1."139 This
would mean the "PURGING", "ENVIRONMENT CHECK" and so forth.

154. A subsection titled "Incomplete breath samples" follows140, the warning messages in which
have been mentioned above. Those messages indicate that "the breath sample was not acceptable" and
an instruction to, for instance, have the "TEST REPEATED". In such an event, once the mouthpiece
is removed after prompting, "the measuring system will be flushed" and "PLEASE BLOW" will be
displayed.

134 My emphasis.
135 Pages 8, 13 & 14.
136Pages 20 & 21.
137Page 11.
138Or 'ESC to return to previous for correction'.
139 Pages 12-13.
140 Page 13.
155. Alternatively, in the event that "any unacceptable condition" is identified during the
measurement, "the sequence will be interrupted", a "corresponding error is displayed" and a "record"
indicating the type of error is also printed. One such "unacceptable condition" is given as an example
- "MOUTH ALCOHOL", in whichcase the test cycle "is aborted", the message warning of the
condition is displayed and a "protocol is printed".

156. Again, there is reference to the "measuring system" being "flushed" and made ready for
measurement. There is also mention that "the test sequence will be interrupted" in case of blowing
"without request".

157. The sixth and last subsection is titled "Interruption of measurement" with which function
"QUICK RESET" of the machine is made possible - only "before the breath test" itself. There is the
following text: "Remark: While the measuring cycle is going on and while the record is being printed
out, this option is not active. These sequences cannot be interrupted." Again, there is mention of
flushing and re-readying. 141

158. Section 8 provides an "example" of a "measurement record".142 The record of the test in
question143 reveals the totality and the sparseness of the testing process as performed in South
Africa. It does however support the evidence given that the accused provided an "adequate" and
complete breath sample according to the preprogrammed "breath sampling requirements". I will deal
with what is possible for the Alcotest to do - and consequently also its printout to show - in my
analysis of Chun144 later in this judgment.
159. Thereafter, section 9 outlines additional functionality only available with a keyboard145 and
functionality not available to the "normal operator"146. The latter functionality requires a "special
'ALCOTEST 7110 HARD KEY LOCK SAFETY SYSTEM'", failure to provide which will cause
three related alerts to be displayed, namely: "NO ADMITTANCE", "FUNCTION NOT POSSIBLE"
and "FUNCTION NOT AVAILABLE".

160. Section 10 consists of several subsections - the first is titled "Servicing" and relates to
"inspection" of the machine which "must be performed by Drager Service" at an interval of "every 6
months"147. The other subsections are explanations of the processes of printer paper and printer
ribbon replacement, cleaning - there is a caution against the use of alcohol-containing substances and
against liquid ingress into the machine - and fuse replacement respectively.

161. The "Fault - Cause - Remedy" list of the "[m]ost important messages" is found in section 11.148
Evidence was given at the trial that the Alcotest is capable of being programmed to the requirements
of the purchaser. Consequently, a complete list of all the possible warning messages would be tailored
accordingly. It is not clear what further messages could or would appear on the model used in South
Africa.

141 Page 14.


142 Page 15.
143 Exhibit F.
144 State v Chun 943 A.2d 114 (N.J.2008).
145 Page 16.
146 Page 17.
147 Page 18.
148 Page 20.
162. Two types of message are displayed on the Alcotest. The one kind requires intervention by Drager
Service and is indicated by "ERROR" followed by a number "XXX" indicating the type of error. In
such a case, the machine additionally prints out an automatic message listing the type of fault and
switches itself off. The other kind can be remedied by a operator and the action to be taken in such
cases is listed.

163. A fault display of "BLANK CHECK INCORRECT" refers to the "[z]ero adjustment" being
"incorrect" and is to be remedied by ensuring that the "ambient air is clean and free from alcohol and
tobacco smoke". As shown above, a "BLANK CHECK" was previously in this manual characterised
as a calibration check using a test gas cylinder. It would then follow that this check being incorrect
would indicate a fault with the calibration and not with the environment, this "remedy" therefore
confuses the issue at this point.

164. The "MOUTH ALCOHOL" fault protocol was set out in detail before, under the heading
"Incomplete breath samples", but listed as an "unacceptable condition". Here, the operator is referred
back to the previously covered "Preconditions" section.
165. A fault display of "MINIMUM VOLUME NOT ACHIEVED" was likewise previously
mentioned. Under "Cause" there is the explanation that "[t]he supplied volume is smaller than the
minimum volume required."149

166. The two faults which follow - "BLOWING NOT ALLOWED" and "READINESS TO BLOW
EXPIRED" - may be remedied by "[r]epeat measurement". The one thereafter, "OUT OF
MEASURING RANGE", refers the reader to the "technical data" which follows near the end of the
manual.

167. "ALCOHOL CONCENTRATION TOO BIG" is displayed when there is suspicion of mouth
alcohol and the reader is referred to that fault. Evidence was lead that any detection of an
extraordinary result would depend on the interaction between the IRC and the ECC. Evidence given
on behalf of the state showed that the Alcotest delivered false 'positive' results for mouth alcohol if the
correct waiting protocol was not followed.

168. The last listed fault able to be remedied by the operator is "KEYBOARD-ERROR" which
requires a repeat of the desired function, after - "[i]f necessary" disconnecting and reconnecting the
keyboard.

169. Section 12 shows a front and a rear view of the machine, both of which have numbered pointers
and a list displaying the names of the parts so indicated.150
170. . There is section titled "Technical Data"151, section 13, the first subsection of which lists
"[a]mbient conditions" for both "[operation" and "[s]torage". According to the data given, operation
should only be performed at temperatures ranging between 0 and 40°C, in relative humidity of 10% to
95% and at an atmospheric pressure of between 600 to 1300hPa. Storage may be at a temperature of
between 40-70°C.

171. The second subsection is titled "Measurement cycle" and reflects a "[mjeasuring range" of 0 to
300 ug/100ml. The 'typical' duration of a measuring cycle is given as "4 minutes" and the number of
tests "per cycle" is listed as "3". No detail is provided as to what each of those tests is. There are three
"allowed failures (per test)", but no detail as to the meaning thereof.

149The minimum volume in South Africa is set at 1.5 litres of breath.


150Page 22.
151 Page 23.
172. "Characteristic operation values" follow and list power supply, fuses, type of printer, paper, time
display, typical warm-up time at room temperature, approximate dimensions and weight in the last
subsection.

173 There is a heading on the final page of the manual at section 14152 - "Additional Remarks" -
related to transportation (avoid shock, etc.) and storage (dry rooms only) of the machine.

152 Page 24.


174. Lastly there is an "Order List" - section 15 - which gives part numbers, including the model
number 83 14 647, as discussed above.

175. The abovementioned Prosecution Guidelines make mention of certification of an operator of an


"EBTM"153. Such a certificate of competence is only given to an operator who has successfully
completed an operator's course for the particular make and model of the machine actually used.

176. A document titled "Drager Alcotest 7110 MK 111 Training" was handed up as an exhibit. It is
three pages long and consists, save for three complete sentences, of bullet points. Presumably it is
intended as an overview of what is to be presented at the training course and used in conjunction with
the manual discussed above.

177. The total time "(for 10 delegates)" is "+/-5 hours" during which the given "[training objectives"
of the transfer of "skills and knowledge required to operate the Alcotest 7110 in a competent and
professional manner" are transferred to "selected persons". These persons are then "assessed" by
means of a 15 minute theory test - for which a minimum of 18 out of a possible 25 marks must be
obtained - and a "practical test" lasting approximately 75 minutes. The practical test consists of five
segments, namely "[s]et up", "[ajctivate key board", "[s]elect no. of printouts", "[cjhange location"
and lastly "[t]est a subject". No further detail is provided and it is not clear what is required for a
person to "successfully pass" this aspect of the testing.

178. The approximate time break-down for the remainder of the course is given as follows: 30 min for
understanding the physiology of alcohol and the body, 10 min for a brief history of the Alcotest - and
knowledge of keyboard, 5 min for clarity on intended use, maintenance and calibration, 10 min for
familiarisation with the preconditions for the person being tested, 30 min for identification of
instrument features, 60 minutes for attaining knowledge to set up the Alcotest 7110, 30 min for
knowledge of procedure for testing and 60 min for practice with the instrument prior to testing.

179. The sections of the "Course Content" follow the above order of items and are sequentially
marked "A" (physiology of alcohol and the body) - "J" (the tests). "A" includes "Henry's Law" and
related concepts which I discuss below. "B" appears to be the history of Drager itself. "C" to "H"
reflect bulleted items which appear in the manual discussed above save for three additional items not
found there: the last item under "E" is "[k]now the legal limit" and the last two items of "H" are
"[signatures required on protocol to complete test" and "[Register and safe keeping of protocols"
respectively.

180. We were presented with a pro forma document titled ."operator statement" that would require the
operator to complete three pages of information after a test was performed, in this case it is clear that
no such document was completed.

181. Item "I" is the practical training session which precedes the testing which the operator in this
case must have "successfully" passed in order to obtain his certificate of competence.154 I note that

153Provision 2.1 thereof.


154 Exhibit C, issued by Drager dated 18 February 1999. His training took place after the SABS testing but
before the final change to the software which runs this Alcotest.
the training in itself is not sufficient but also the manual appears confusing to the point that it refers to
devices and/or parts as well as operations not related to the Alcotest in question.

The Drager Alcotest 7110 MK 111 as used in other jurisdictions155

182. In New Jersey, ("A/J"), no breath-related driving offence exists. Therefore it is necessary to
convert any breath alcohol reading to a blood alcohol content for the purposes of prosecution in terms
of the statute relating to "driving while intoxicated".156

183. I have heard evidence157 regarding a mathematical formula used in order to extrapolate a
person's supposed blood alcohol content from a breath sample taken by means of an evidential breath
testing instrument - variously the 'partition/conversion coefficient/factor/ratio', ("BBR"). I have
understood that, while the actual ratio may well be variable - in relation to different persons as well as
the same person at different times - the ratio of 2100:1158 is used in South Africa to draw a
relationship between the two offences.
184. The evidence presented was based on a study by the expert159, which suggested that a BBR of
1900:1 would be preferable to ensure the least possible prejudice for the greatest number of
individuals160. The BBR used in South Africa was accepted as "a valid measuring mechanism"161
in NJ and is accepted in various jurisdictions around the world as sufficiently representative.

185. Given that our legislative framework does not require such extrapolation162 for the prosecution
of drivers over a given limit, I shall accept that the chosen ratio is a policy decision and will deal with
the related constitutional argument below163.

186. Save for the conversion of a breath test result to a blood test result, the remainder of the issues
covered in the NJ case of Chun164, are of particular interest. The machine used there, designated

155 I have not discussed R v Duff [2011] 3 W.W.R.73 delivered by the Alberta Court of Canada on 29 September 2010
as it dealt with a different type of Evidential Breath Device. The weight attached to the test report is discussed and relied
upon subjects to safeguards.
156 N.J. STAT. ANN., Section 39:4-50(a). This is true for ordinary drivers. There is however a separate
'commercial driving' statute which dictates a maximum alcohol concentration in both blood and breath samples
for commercial drivers (39:3-10.11).
157 T.C. Gilfillan on his CSIR Information Services Study DIS-C209 of November 1996.
158 (At 34*C,) 2100ml of breath would contain the same amount of ethanol as 1ml of blood (in a person with a
body temperature of 37*C and average amount of red blood cells).
159 Dr. T C Gilfillan.
160 Evidence was presented which indicated a divergence of opinions between experts as to BBR.
161 Chun judgment 50 and 51.
162 It is primarily used in jurisdictions where there is no separately legislated offence of driving with an
excessive BrAC. There, a breath sample is taken and a calculation made in order to convert the BrAC into BAC
for the purposes of prosecution under the BAC offence legislated in such jurisdictions.
163 Rail Commuter Action Group and Others v Transnet Ltd t/a Metrorail and Others (NO 1) 2003 (5) SA 518 (C)
at 575 D; Beja and Others v Premier of the Western Cape and Others 2011 JDR 0412 at 68 para 177; Kolbatschenko v King
NO and Another2001 (2) SACR 323 (C) at 337 I.
164943 A.2d 114 (N.J. 2008). A copy of the judgement and order as handed down on 17 March 2008 by
the Supreme Court of New Jersey (No. A-96, September Term 2006, 58, 879) has been provided to me
"MK 111 - C", ("model C"), demonstrates a different hardware specification set and operating system
to that used in South Africa.

187. While the principles remain the same, the model C machine performs two concurrent tests per
sample of breath given - one in the IRC as well as one in the ECC. That means that there are two
results produced for each breath sample and both the IRC test result and the ECC test results are
printed if the results achieved are "within the acceptable tolerance".165

188. The tolerance referred to will be "acceptable" if the four results of two separate samples of
breath, taken two minutes apart - with a purging cycle between them -are within a tolerance range of
+/- 5% of the mean.166 In that event, a printout will show each of the readings to three decimal
places.167

189. In order that a successful test be completed, four breath sample criteria need to be fulfilled.
These are only in issue once the machine has performed two checks -first an environment test and
then a control test of its two test cells using a wet solution - and a subsequent purging cycle.168

190. These breath sample criteria are as follows: there needs to be a minimum volume of 1.5 litres -
1.2 litres in the instance of women over the age of sixty169; a minimum blowing time of 4.5 seconds;
a minimum flow rate of 2.5 litres per minute; and a plateau must be established by the IRC test
measurement in that it must not differ by more than 1% in 0.25 seconds.170
191. Even then, if two sample results are not within the allowed tolerance referred to above, the
machine will request a third sample. There will then be six test results (three each of IRC and ECC
tests) and there will be a calculated result based on the four which are within the stated tolerance.171

192. The printout then reports a final breath alcohol result which is a calculation of the lowest of four
readings obtained.172 All breath test readings are displayed on the printout - six, if there was a third

and I shall use the page references therein rather than those as would appear in the subsequently
reported version of the judgement.
165Chun judgement, pages 31, 76, 78 & 97.
166 Chun order, 2 C. The remaining part of the formula given - "the greater of [the above] or +/- 0.005% BAC
from the mean" - is only necessary for the conversion to BAC.
167 Chun judgement, page 31.
168 Chun judgement pages 28 & 29.
169 Chun judgement, page 64, comes to the conclusion that there is no "equal protection violation" in this
distinction of either the Constitution of the USA or of the Constitution of the State of New Jersey.
170 Chun judgement, page 53, order, 2 B.
171Chun judgement, pages 31 & 97.
172 That final result is truncated by omission of the third decimal place. There is ultimately a conversion, using
the abovementioned 2100:1 ratio, to blood alcohol for the reasons outlined above. This would be redundant in
sample taken because the first two pairs were not within tolerance. There is even a report where there
is no reportable result.

193. The Court in addition ordered that the printout be programmed to display, inter alia, the
currently used software version, control test results - meaning the readings of the tests the machine
uses to check itself - prior to the application of the ECC "drift" algorithm173, the reason why there is
no reportable result, as well as such detail as would be required to check the proper workings of the
machine, for instance, calibration documents.174

194. The State was ordered to, inter alia, produce in discovery twelve "foundational documents"
designed to assist the defence.175 The court also issued an order that the operator of the machine in
question be made available to testify and producedocuments evidencing such operator's training.176
Further, that three "foundational documents" be offered into evidence "to demonstrate the proper
working of the Alcotest".177

195. All that being in place178, the Justices in Chun decided that they were "satisfied that, ...the
confrontation rights of defendants have been, and will continue to be, protected." They continued to
say that they "have no doubt that the device, with the safeguards ... required, is sufficiently
scientifically reliable that its reports may be admitted in evidence." And finally concluded that they
"are confident that ... all of the defendant's rights have been advanced and considered."179

196. This finding of the court in Chun - while nominally based on an Alcotest MK 111-was based on
their particular model "C". Clearly, it is comparatively more comprehensively specified and
programmed than the one discussed above in relation to South Africa.

the South African legislative framework.


173 Discussion thereof at judgement, page 89. A related discussion of the IRC "weighted average" algorithm
follows at judgement, page 95.
17415 Chun order, 2 F - J. See also discussion at judgement, page 42.
175 Chun order, 3 C.
176 Chun order, 6 A. Note in our jurisdiction section 212 of the Criminal Procedure Act 51 of 1977 would assist.
177 Chun order, 6B.
178 As well as other fail-safe procedures such as "wet bath" testing of both IRC and ECC prior to each
breath test, re-purging and re-testing of the machine being necessary if no blowing follows within three
minutes of the prompt therefor being given and 11 attempts being allowed to collect two breath samples.
Judgement, pages 27 - 30.
179 Judgement, page 130. It is noteworthy that this judgement follows on lengthy interrogation of the machine and its
workings by a Special Master who was tasked with the preparation of reports to assist the Court in making its decision. He
considered several months of testimony and issued a report in February 2007 and a supplemental report in November
2007 after further examination of the software workings of the machine.
197. There was one consideration which was examined and rejected as unnecessary in Chun180
which ought to be re-evaluated in light of the South African legislative framework: the use of a
temperature probe designed to measure the temperature of the test subject's breath. As there is no
conversion of a breath alcohol reading to a blood alcohol result required here for the purposes of
prosecution, the benefits discussed there would not apply.181

198. Evidence was presented that the Alcotest 7110 MK 111 'Evidential' model as used in Germany,
the manufacturer's homeland, is fitted with such a sensor182. This is designed to prevent a potential
erroneous reading in subjects whose actual breath temperature does not correlate with the expected
average of 34°C, either because the person's body temperature is not the expected 37°C, or because of
the influence of the ambient environmental temperature.

199. This additional breath temperature 'module' measures, by means of sensors, the actual
temperature of the person's breath as it leaves the mouth and compensates for the variation thereof
from the expected 34°C by means of a scientific calculation so that the reported result is adjusted to
prevent disadvantage to those affected. Experts there indicated that BrAC may increase by 5.5 - 6.8%
for each 1°C above the expected 34°C183.

200. Since persons giving breath samples in South Africa do not benefit from the truncation and ratio
used in Chun to convert the given breath alcohol reading into a blood alcohol result, an adequate
substitute is required. The logical choice would be the addition of the breath temperature 'module' as
used in the German Evidential model.

201. Addition thereof would also guard against irregular - as opposed to normal -breathing by a test
subject. Evidence was presented that both hyper- and hypoventilation affects a person's breath
temperature and therefore also the given result. It would also be an aid to the operator in that the test
subject's breathing pattern would not require careful observation to notice irregular breathing.

202. It is noteworthy that the Evidential model requires two separate breath samples, spaced minutes
apart, each of which is individually measured. It is deemed to be necessary, notwithstanding the ECC
testing, to prevent possible false positive results from mouth alcohol.

203. I now turn to the final evaluation of the elements of the offence.

204. As stated above, there was a dispute as to whether the accused was in fact the driver of the motor
vehicle in question. After considering all the evidence placed before me I have no hesitation to find,
beyond a reasonable doubt, that the accused was in fact the driver of the particular vehicle.
205. I have not been referred to any case law on the definition of alcohol. The only evidence
presented is in terms of the SANS 1793:2006 and the OIML R 126:1998 provisions which stipulate
that the test applied, as in this instance, is for ethyl alcohol alternatively termed ethanol. Hence a test

180 Discussion at judgement, page 65.


181 The ratio of 2100:1 and truncation as opposed to rounding of the three decimal places.
182 Exhibit H, page 4, Exhibit B pages 40, 46, 47 & 67
183 See Chun judgement, page 68.
would need to be performed specifically for the presence of ethanol. The enquiry however does not
end there, in order to accept the result reported by the Alcotest, I have to consider whether such is
produced after a proper analysis of a sample of breath of the accused. This result must exclude any
other type of substance which might mimic ethanol in its scientific make-up.

206. It is common cause that a possibility exists of contamination by interfering substances. The
Alcotest is designed to detect interfering substances and programmed to report any presence thereof in
the event that it exceeds the prescribed parameters. However this detection and reporting is dependent
on the proper functioning and effective working of the ECC. In the instant matter it is common cause
that the ECC is not calibrated by an accredited laboratory as prescribed in the Regulations. This does
not satisfy the requirements of the RTA as read with the Regulations. A second breath sample, which
would potentially be a safeguard apart from the ECC, is absent in this case. Therefore I am unable to
find that the state proved beyond a reasonable doubt that the reported result reflected alcohol, as
defined, on the breath of the accused and expressed in milligrams per 1000 millilitres.
207. The state is entitled to rely on the result obtained from any specimen of breath from the accused.
Hence I must be satisfied that any reported result is from breath and nothing else, so as to be satisfied
that it meets the requirement of section 65(5). We have heard evidence from the State that the
Alcotest is designed not to report mouth alcohol expressed in milligrams per 1000 millilitres in the
printout. The RTA is also clear that what should be measured is exhaled breath. This would exclude
any reading for mouth alcohol.

208. The state relied on evidence that mouth alcohol would be detected by the Alcotest and reported
as such, this was however, challenged by the direct evidence of their own expert184 who conducted
tests with a similar Alcotest and his evidence was undisputed that the Alcotest reported mouth alcohol
as breath. It is uncontested that the presence of dentures in a test subject may increase the risk of the
presence of mouth alcohol. It was never ascertained whether the accused had dentures. It is instructive
to note that point 5.5.1(c) and Annex I of OIML R 126 makes provision for legal authorities to
provide for procedures in this regard in their policy. In the instant matter the policy makers simple
failed to do so.

209. The question arises whether the Alcotest, absent the safeguards described above could render a
result that could exclude an analysis of anything else but breath. The evidence of the expert on the
experiments he performed, in my view must raise a reasonable doubt.

210. Alcotest, model number 8314647, must further comply with section 65(7) read with Reg 332,
which prescribes type testing of the prescribed equipment. It is instructive to note that the SABS type
tested a Drager Alcotest 7110 MK 111RSA on 18 February 1998. The question arises whether this
type testing was sufficient to comply with the said statutory provisions and regulations. It is common
cause that the regulation at hand came into being after this type testing. Similarly the OIML R 126
applicable in this matter came into being in 1998 and was only confirmed at a much later date as
pointed out above. The software for the machine in the instant matter, version 1.1 was only finalised
in December 1999.

211. It is common cause that the operation of the machine that includes the analysis, calculations and
results reported are software driven, hence the logical conclusion is that type testing should be done
on the equipment as it is used in the field by law enforcement officials. The Alcotest as currently set
up with software version 1.1 in contrast to the type tested software version 1.0 could not be a type

184 Dr. P Berman.


approval in itself as envisaged by the legislation. The state sought to rely on the type testing certificate
dated 18 February 1998. There is no indication that the type testing complied with the mandatory
provisions of the OIML R 126:1998 which was applicable at the time of the alleged offence.

212. It is instructive to note that the typical sample that was submitted for testing and in respect of
which the test report was issued was an Alcotest 7110 MK 111 RSA, this preceded the regulations of
the RTA. The regulations issued after the type testing in 2003 made provision for a Drager Alcotest
7110 MK 111 Germany. In the 2007 regulations which was applicable at the time of the alleged
commission of the offence no particular device was prescribed. It found its way back into the
regulations in the 2010 regulations and again makes reference to the Drager Alcotest 7110 MK 111
Germany, which is in any event not the device the test report refers to. Prima facie it seems that at no
stage during the development of the regulations did it match the test report in question.

213. I return to the test report again and note some of the salient features thereof. It was approved two
days before the alleged type testing report of the Alcotest, it needs to be noted that this device was
built and developed in Germany and must have been shipped to our shores for type testing.
Presumably the type testing was done after the standard was approved. I find it surprising that within
two days compliance could be obtained. It is instructive to note that the manufacturer was represented
in the group that made representations for the development of the standard. For purposes of
compliance with the standard the accredited laboratory had to have regard to the operating
instructions, as will become apparent later, the operating instructions in this instance, leave much to
be desired. In as far as it relates to the testing for the operation requirements, it had to be tested
multiple times and at various operating conditions. Having regard to the number of tests to be
conducted and the frequency thereof I cannot accept the test report at face value in the absence of an
analysis thereof and/or evidence that supports the conclusion.

214. The legislative framework that had to be complied with for purposes of this case is the OIML R
126:1998 which was incorporated in SANS 1973:2006 which replaced SABS 1793:1998. The SABS
standard was termed edition 1 and the SANS standard is termed edition 2. In 1998 however the OIML
R 126 had not yet been incorporated into South Africa, hence it is inconceivable that the standard
applied for purposes of the test report could be the same as the standard applied to the device for the
use in the instant matter. Further to that one must have regard to the manner in which standards are
developed by the OIML in the foreword to the OIML R 126 it is stated that the 1998 edition was
developed by a subcommittee and was approved by another committee in 1997 and submitted to the
conference body only in 2000 for formal sanction. I have also made reference to the differences
between the SABS 1793:1998 and SANS 1793:2006 and no evidence was led that type testing of any
sort was conducted between 1998 and 23 January 2010 when the incident occurred.

215. Reg 332 (3) of the 2007 edition provided for a presumption when a certified test report is
submitted. The test report submitted here has as a footnote the following: "this report relates only to
the specific sample(s) tested as identified herein. It does not imply SABS approval of the quality
and/or performance of the item(s) in question and the test results do not apply to any similar item that
has been tested." Because of the disclaimer by the accredited laboratory, this certificate can therefore
not be one as envisaged in Reg 332 (3).

216. The State further sought to rely on the premise that no type-testing by the SABS or SANAS was
in fact necessary since the OIML itself had already approved the Drager Alcotest 7110 MK 111 as
compliant with its R 126:1998. As indicated with reference to Chun, except for the model number, the
type number was the same. The Alcotest in Chun was set up totally different to the one in South
Africa. So that in itself proves that the state's argument cannot prevail. I note however that no test
report in the format required by R 126 Annex E was ever proffered.

217. Based on the OIML certificate of compliance produced, I can only conclude that that a Drager
Alcotest 7110 MK 111 basic specification model, loaded with whatever operating system it so comes,
is in principle capable of producing the desired result. Since I cannot find that the Drager Alcotest
7110 MK 111 RSA model number 8314647 with software version 1.1as used in this case, was ever
tested, the State's argument cannot prevail.
218. Accordingly, I do not need to deal with the question of whether the OIML testing facility is in
fact "an accredited test laboratory" or whether the testing would, in terms of Reg 332, have to be done
by SANAS and "in terms of SANS 1793" - which is in turn the wholesale adoption of OIML R
126:1998. A document was produced that suggest that the OIML testing facilities would comply with
a testing laboratory in terms of the Accreditation for Conformity Assessment, Calibration and Good
Laboratory Practice Act 19 of 2006. This document was handed up during argument and no evidence
was led in respect of the basis of which the suggestion is made. The document is in the form of a "to
whom it may concern" letter which seems to have been produced during September 2010. It makes
mention that the OIML certification is done by the Laboratorie nationale De Metrologie Legale and
by virtue of its accreditation with another body and that body's membership of another organisation, it
falls within the prescripts of act 19 of 2006. Not only is this letter inadmissible as evidence but even if
it was admissible, it is so vague that it would not have moved me.

219. Reg 332 requires further of the state to prove that the equipment used was calibrated or verified
to establish the accuracy and traceability of such equipment by an accredited laboratory. It is further
required in terms of the prosecution guidelines and the Drager instruction manual that calibration
should take place every 6 months. In terms of the prosecution guidelines the calibration should take
place after any maintenance and repairs have been done.

220. Reg 332A makes provision for the mere production of a certificate by an accredited laboratory to
provide prima facie proof of such calibration. What is of concern, in this matter, is that adjustments
before and after calibration were effected by the manufacturer who is not an accredited laboratory. It
is of importance in any criminal matter, where scientific or technical equipment is used in the
prosecution of a person, that independent calibration and/or verification be done by accepted and
accredited laboratories to ensure that courts can rely on the results produced by such equipment. It is a
principal of our law that justice must not only be done but be seen to be done. In appropriate cases a
perception of collusion could be detrimental to the administration of justice. I have pointed out in the
summary that further to this concern proper record keeping was also neglected. In any event the
manufacturer and the prosecution claimed that the effective and proper operation of the ECC
enhances the reliability of the result produced, it then becomes more worrisome that this component
in particular is never independently verified but rather adjusted by Drager after calibration of the IRC
by NMISA.

221. In the event that prescribed equipment is properly calibrated it should not only function properly
but be operated by a person who is properly qualified to operate such equipment. I have pointed out
above that the operator lacked sufficient training in my view and simply failed to follow standard
operating procedures as prescribed in the operator's manual, the OIML and the prosecution guidelines.
To this extent such failure would vitiate a reliable result.

222. There is an operator's statement that ought to be completed when a person is tested on the
Alcotest. On the evidence presented this statement was not completed in terms of a sworn statement
and not all the pages of the statement were presented to the court.
223. In terms of the operator's certificate it is presumed that the operators have undergone training in
order to operate the Alcotest effectively. The certificate of the operator that performed the test on the
accused was admitted into evidence, however it is noted that this certificate is dated 12 February
1999. The Alcotest in question, was programmed with software version 1.1 which was finalised in
December 1999. There is no certificate to prove that the operator was trained in terms of the software
version 1.1 on the Alcotest that was used in producing this particular result.

224. The factual findings herein represent the unanimous opinion of the court.

225. I am of the view that save for the fact that the accused was the driver of the motor vehicle on a
public road on the day in question, the state failed to prove any of the other elements of the offence as
charged. Consequently the accused is acquitted of the charge.

In closing I would like to state that I am indebted to my assessor Advocate Sascha Curie for her
service in this matter and the assistance given to the court. Ms Nikki Ramages-Hanafey, the law
researcher of this Court for her diligent and effective research in preparing this judgment. I am aware
that the accused was assisted by Legal Aid South Africa and counsel for the defence lead by Advocate
Mitchell SC, have offered their services pro bono who appeared for the accused. The prosecution
under the leadership by Advocate Downer SC, have taken the initiative to bring this matter to the
High Court. Both teams are thanked for the hard work and the manner in which they presented this
case. I am of the view that your contribution enhances access to justice and will contribute to the
development of our law.

Erasmus J

HOLTZHAUZEN v ROODT 1997 (4) SA 766 (W) H


1997 (4) SA p766

Citation 1997 (4) SA 766 (W)

Case No 21405/96

Court Witwatersrand Local Division

Judge Satchwell J

Heard May 13, 1997

Judgment May 13, 1997

Counsel M Esterhuyse for the plaintiff


P R V Strathearn for the defendant
Annotations Link to Case Annotations

[zFNz]Flynote : Sleutelwoorde
Evidence - Expert evidence - Admissibility of - Applicable principles - Matters on which
expert to testify must call for specialised I skill or knowledge - Sight not to be lost of Court's
responsibilities in drawing inferences - Witness must be a qualified expert - Facts on which
expert opinion based must be proved by admissible evidence - Guidance offered J
1997 (4) SA p767
by expert must be sufficiently relevant to matter in issue - Opinion evidence not to usurp
function of
A Court
in deciding questions Court has to decide.
Evidence - Expert evidence - Admissibility of - Action for damages for defamation -
Defendant alleged to have published statement that plaintiff had raped her - Evidence of
clinical psychologist B that defendant had during consultations with him told him that
plaintiff had raped her and that she had told him so twice during hypnotherapy sessions -
Expert stating opinion that defendant telling the truth about relevant incident - Defendant not
entitled to testify that she had made previous consistent statement and could not call another
witness to prove such prior statement - C Expert's evidence not relevant - Only reason why
such statements tendered was to show consistency - Defendant also in state of suggestibility
when making statements to expert - Expert's opinion displacing value judgment of Court and
shifting responsibility for settling dispute from Bench to witness-box - Evidence as to
hypnosis and conditions under which defendant's statements made tending to usurp judgment
of Court - Evidence of expert not admissible. D Evidence - Expert evidence - Admissibility
of - Action for damages for defamation - Defendant alleged to have published statement that
plaintiff had raped her - Evidence of rape survivor counsellor as to why rape survivors
frequently not immediately making rape known and seeking E help - Judicial officer's ability
to comprehend fully extent of emotion and experience of rapist and rape survivor extremely
limited - Unwise and irresponsible for judicial officer not to welcome opportunity to learn
and receive guidance from such expert who was better qualified to draw inferences on
matters on which judicial officer required to draw inferences - Judicial officer not to F turn
against opportunity of gaining better understanding from available expert - But weight to be
attached to such evidence to be assessed in light of all evidence before Court - Evidence of
expert admissible.
[zHNz]Headnote : Kopnota

The relevant principles applicable to the admissibility of expert opinion evidence are as
follows: G
(i) The expert witness must be called to give evidence on matters calling for specialised
skill or knowledge. It is therefore necessary for the Court to determine whether the subject of
the enquiry does raise issues calling for specialised skill or knowledge. Evidence of opinion
on matters which do not call for expertise is excluded because it does not help the Court. At
best, it is superfluous and, at worst, it could be a cause of H confusion.
(ii) The Courts are accustomed to receiving the evidence of psychologists and
psychiatrists, particularly in the criminal courts. However, the expertise of the witness should
not be elevated to such heights that sight is lost of the Court's own capabilities and
responsibilities in drawing inferences from the evidence. I
(iii) The witness must be a qualified expert. It is for the Judge to determine whether the
witness has undergone a course of special study or has experience or skill as will render him
or her an expert in a particular subject. It is certainly not necessary for the expertise to have
been acquired professionally.
(iv) The facts upon which the expert opinion is based must be proved by J
1997 (4) SA p768
admissible evidence. These facts are either within the personal knowledge of the A
expert or on the basis of facts proved by others. If the expert has observed them, then the
expert must testify as to their existence. The expert must furnish criteria for testing the
accuracy and objectivity of his or her conclusion and the Court must be told of the premises
upon which the opinion is based. Since the testimony of an expert B is likely to carry more
weight, higher standards of accuracy and objectivity should be required.
(v) The guidance offered by the expert must be sufficiently relevant to the matter in
issue which is to be determined by the Court.
(vi) Opinion evidence must not usurp the function of the Court. The witness is not
permitted to give an opinion on the legal or general merits of the case. The evidence C of the
opinion of the expert should not be proffered on the ultimate issue. The expert must not be
asked or answer questions which the Court has to decide. (At 772B/C--773C/D.)

In a civil trial in a Local Division in an action for defamation arising out of the alleged
publication by the defendant of a statement that she had been raped by the plaintiff, the
defendant gave D notice in terms of Rule 39(9) of the Uniform Rules of Court of her
intention to call two expert witnesses, W and B, to testify. W, a clinical psychologist, would
testify that the defendant had consulted him on a number of occasions and had told him that
she had been raped by the plaintiff and, furthermore, that she had also done so twice whilst
under hypnosis during hypnotherapy sessions. W's opinion was that the defendant was telling
the truth about the E relevant incident. B, a psychologist, social worker and counsellor
employed by 'People Opposing Women Abuse', would testify that women who had been
raped would not often reveal the incident to third parties immediately after it had occurred
and that it was common for such victims to exhibit radical changes in behaviour. The plaintiff
opposed the admission of the F evidence of W and B, contending that, firstly, W's evidence
usurped the function of the Court and was evidence of the content of a previous consistent
statement; and, secondly, that B's evidence was of a general nature as B had had no
consultation or discussion with the defendant, and that the evidence was not relevant.

Held , as to W's evidence, that the defendant could not be asked if she had made a statement
consistent with her evidence in Court and she could not herself narrate such a statement nor G
could she refer to it. Similarly, W as another witness could not be called merely to prove such
prior statement: it was superfluous evidence. (At 773H.)

Held , further, that W's evidence was not relevant for the following reasons:
1. The major import of the evidence of W was to refer the Court to the consultations
which he had had with the defendant in which she had made certain statements to H him, and
the only reason why these statements were tendered was to show consistency in the
statements made by the defendant prior to her giving evidence in Court: these statements
were superfluous. (At 774C--D.)
2. The circumstances under which the statements were made to W, having been made
subsequent to the initiation of the litigation and in response to W's prompting while the I
defendant was in a state of suggestibility, removed them even further afield from the realm of
admissible evidence. (At 774D/E--E/F.)
3. The conclusion expressed by W did indeed displace the value judgment of the Court.
(At 774E/F.)
4. It was a well-known principle that litigants were entitled to have their disputes settled
by Judges and not by witnesses and, if experts such as W J
1997 (4) SA p769
were too readily allowed to give their opinions on the subject-matter of litigation, it A
would lead to the balancing of opinion between witnesses: this would tend to shift
responsibility from the Bench to the witness-box. (At 774H/I--I/J.)
5. The evidence, which was to be given by W as to hypnosis and the conditions under
which the statements were made by the defendant, went a long way towards usurping the
judgment of the Court. (At 775A.) B

Held , accordingly, that the evidence of W was not relevant and could not be allowed. (At
776A.)

Held , further, as to B's evidence, that the criterion by which the Court should base its
assessment as to whether or not B's evidence was relevant was that the evidence should be 'of
assistance to the Court' and 'helpful'. (At 776G/H.) C

Held , further, that the ability of a judicial officer to comprehend fully the kaleidoscope of
emotion and experience, of both rapist and rape survivor, was extremely limited. (At 778H.)

Held , further, that in such circumstances it would be unwise and irresponsible for a judicial
officer, who was lacking in special knowledge and skill, to attempt to draw inferences from D
facts which had been established by evidence, without welcoming the opportunity to learn
and receive guidance from an expert who was better qualified than the judicial officer to draw
the inferences which the judicial officer was required to draw. (At 778H/I--I/J.)

Held , further, that, if there were particular reasons, known only or known particularly to
those E who work with rape survivors and who had experience in this field, why rape
survivors frequently did not take the first opportunity to make known such an assault and to
seek help, it would ill-behove a Judge of the High Court to turn his or her ear against the
opportunity to gain a better understanding from an available expert: however, the value to be
attached to such evidence would fall to be assessed in the light of all the evidence before the
Court. (At 779B--D.) F

Held , accordingly, that the evidence of B as an expert was admissible. (At 779E.)

Annotations:

Reported cases

AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A) : referred to G

Bates & Lloyd Aviation (Pty) Ltd and Another v Aviation Insurance Co; Bates & Lloyd
Aviation (Pty) Ltd v Aviation Insurance Co 1985 (3) SA 916 (A) : dictum at 939I--940A
applied
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL) ([1939] 3 All ER
722): dictum at 169 (AC) and 733E--G (All ER) applied H

Coopers () (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MbH 1976 (3) SA
352 (A) : dictum at 370E--G applied

Davey v Edinburgh Magistrates 1953 SC 34: dictum at 40 applied

Motor Vehicle Assurance Fund v Dubuzane 1984 (1) SA 700 (A) : referred to

Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) : dictum at 159
applied I

R v Dhlumayo and Another 1948 (2) SA 677 (A) : referred to

R v Ndhlovu 1945 AD 369: referred to

R v Turner [1975] QB 834 (CA) ([1975] 1 All ER 70): dictum at 841 (QB) and 74d--e (All
ER) applied

Reckitt & Colman SA (Pty) Ltd v S C Johnson & Son SA (Pty) Ltd 1993 (2) SA 307 (A) :
dictum at 315E applied

S v Bergh 1976 (4) SA 857 (A) : considered J


1997 (4) SA p770

SATCHWELL J

S v Essack and Another 1974 (1) SA 1 (A) : referred to A

S v Kalogoropoulos 1993 (1) SACR 12 (A): dictum at 22d--e applied


[zRLz]Rules Considered

Rules of Court

The Uniform Rules of Court, Rule 36(9): see Erasmus and Barrow The Supreme Court Act 59
of 1959 and the Magistrates' Courts Act 32 of 1944 11th ed (1997) Part A at 70. B
[zCIz]Case Information

Ruling on an objection to the admissibility of certain evidence tendered during the course of a
civil trial. The nature of the evidence and the objection thereto appear from the reasons for
judgment.

M Esterhuyse for the plaintiff.

P R V Strathearn for the defendant. C


[zJDz]Judgment
Satchwell J:

Introduction

This ruling concerns the admissibility of the opinion evidence of expert witnesses. D

Plaintiff sues defendant for defamation arising from reports she made to her mother and
allegedly to her close friend and sisters. The defamation which is admitted to have been made
E to her mother consists in defendant's statement that she had been raped by plaintiff. The
defence invokes a denial of publication, privilege, truth and public benefit.

Experts

Much of the evidence in the trial thus far has been directed towards ascertaining whether or
not F defendant was indeed raped by plaintiff. Defendant gave notice in terms of Rule
36(9)(a) of the Uniform Rules of Court of her intention to call two expert witnesses, Mr D
Wilkinson and Ms L Breslin. Plaintiff has objected to the admissibility of the evidence of
both these witnesses.

Wilkinson G

The Rule 36(9)(b) notice summarises Mr Wilkinson's evidence as follows:

He holds a degree in clinical psychology from the University of South Africa , is qualified as
a clinical psychologist and is registered as such with the South African Medical and Dental H
Council. He is also a member of the South African Society of Clinical Hypnosis.

The witness, Mr Wilkinson, will state that hypnosis is a way of accessing subconscious
memories and thoughts from patients by inducing in them a state of trance and/or deep I
relaxation. The witness will also state that hypnosis is used to help patients come to terms
with unhealed emotional and mental scars. The witness consulted with the defendant on a
number of occasions. On 28 April 1995 Mr Wilkinson was told by defendant that she had
been raped by plaintiff. The witness was then consulted subsequently on 30 October, 3
November, 9 November and 20 November 1995, at which stage he believed that it was
necessary to use hypnotherapy on the defendant. On 27 November 1995 he induced J
1997 (4) SA p771

SATCHWELL J

a state of trance in the defendant during which she recalled the incident on plaintiff's farm
and A she stated that she was penetrated by the plaintiff. In the course of a further
hypnotherapy session on 5 December 1995 she again slipped into the state of trance and she
advised Mr Wilkinson once again that she was penetrated by the plaintiff on his farm.

Mr Wilkinson concludes at para 32 of the notice: B


'In conclusion the witness will state, in his opinion, that defendant was telling the truth
about an incident that happened on the plaintiff's farm. He will accordingly state that in his
opinion the defendant was penetrated by the plaintiff in the manner described to him by her.'
Breslin C

The Rule 36(9)(b) notice summarises Ms Breslin's evidence as follows:

She holds an undergraduate degree from the University of St Lawrence in which she majored
in psychology; she holds a master's degree in social work conferred on her by the University
of D Wisconsin; she is presently the clinical supervisor of POWA (People Opposing Women
Abuse), which includes the counselling of women who have been raped and/or are in abusive
relationships.

The import of Ms Breslin's evidence appears from para 9, where it is stated: E


'The witness has attained the necessary experience to state that women who have been
raped and/or sexually abused very often do not immediately relate the rape incident to third
parties. It is further her experience that victims keep incidents of rape and/or sexual abuse to
themselves for long periods of time before confiding in others.'

This conclusion is motivated in para 10 of the summary of her evidence. F

Furthermore it is stated at para 11 of her summary:


'The witness will further state that rape victims commonly exhibit a disorder known as
''rape trauma syndrome'' which is an aspect of post traumatic stress disorder. In terms of this
the victims' behaviour patterns change radically.'

Such behaviour patterns are described in para 12 of the notice. G

The conclusion of Ms Breslin's evidence is set out in para 13:


'The witness will state that in her opinion a victim of acquaintance rape will often not reveal
the incident immediately after it has occurred, and that it is common for such victim to
exhibit radical changes in behaviour as set out above.'

Expert opinion evidence H

Witnesses are generally not allowed to inform the Court of the inferences they draw from
facts perceived by them. They must confine their statements to an account of such facts.

However, in Coopers () (Pty) Ltd v Deutsche Gesellschaft für I Schädlingsbekämpfung MbH


1976 (3) SA 352 (A) the following was stated at 370E--G:
'In the ultimate result, it is the court's duty to construe the specification and on the merits to
draw inferences from the facts established by the evidence. (See Gentiruco's case supra at
616D--618G.) There are, however, cases where the court is, by reason of a lack of special
knowledge and skill, not sufficiently informed J
1997 (4) SA p772

SATCHWELL J
to enable it to undertake the task of drawing properly reasoned inferences from the facts A
established by the evidence. In such cases, subject to the observations in Gentiruco's case, loc
cit , the evidence of expert witnesses may be received because, by reason of their special
knowledge and skill, they are better qualified to draw inferences than the trier of fact. There
are B some subjects upon which the court is usually quite incapable of forming an opinion
unassisted, and others upon which it could come to some sort of independent conclusion, but
the help of an expert would be useful.'

Experts are frequently called in to assist our Courts. The relevant principles applicable to the
admissibility of expert opinion evidence in this particular case appear to me to be as follows:
C

Firstly, the witness must be called to give evidence on matters calling for specialised skill or
knowledge. It is therefore necessary for this Court to determine whether the subject of the
enquiry does raise issues calling for specialised skill or knowledge. Evidence of opinion on
matters which do not call for expertise is excluded because it does not help the Court. At best,
it is superfluous and, at worst, it could be a cause of confusion: D
'If on the proven facts a Judge or jury can form their own conclusion without help then the
opinion of the expert is unnecessary.'

(See R v Turner [1975] QB 834 (CA) at 841 ([1975] 1 All ER 70 at 74d--e ).)

Second, we are accustomed to receiving the evidence of psychologists and psychiatrists, E


particularly in our criminal courts. However, we should not elevate the expertise of the
witness to such heights that we lose sight of the Court's own capabilities and responsibilities.
In the matter of S v Kalogoropoulos 1993 (1) SACR 12 (A) at 22d--e the following was
stated with regard to the drawing of inferences by the Courts: F
'Drawing inferences as to the state of a normal man's mind from the objective facts relating
to his conduct is an exercise which is not unique to the psychiatric or psychological
professions. Courts of law perform the exercise daily, constantly. In the circumstances of this
case I perceive no cause G for this Court to have any hesitancy in considering the opinions of
the experts on their merits in accordance with our own experience of, and insight into, human
behaviour, and in deciding itself upon the inferences that are to be drawn from the objective
facts relating to the appellant's actions.'

Third, is that the witness must be a qualified expert. It is for the Judge to determine whether
the H witness has undergone a course of special study or has experience or skill as will render
him or her an expert in a particular subject. It is certainly not necessary for the expertise to
have been acquired professionally.

Fourth, the facts upon which the expert opinion is based must be proved by admissible
evidence. These facts are either within the personal knowledge of the expert or on the basis of
I facts proved by others. If the expert has observed them, then the expert must testify as to
their existence:
'The duty of the expert is to furnish the Judge with the necessary scientific criteria for
testing the accuracy of the expert's conclusions so as to enable the Judge or jury to form their
own independent judgment by the application of these criteria to the facts proved in
evidence.' J
1997 (4) SA p773

SATCHWELL J

(See Davey v Edinburgh Magistrates 1953 SC 34 at 40.) A


Obviously the expert must furnish criteria for testing the accuracy and objectivity of his or
her conclusion. The Court must be told of the premises upon which the opinion is based.
Since the testimony of an expert is likely to carry more weight, it is thus understandable that
higher standards of accuracy and objectivity should be required. B

Fifth, the guidance offered by the expert must be sufficiently relevant to the matter in issue
which is to be determined by the Court. I shall refer to this criterion later.

Finally, opinion evidence must not usurp the function of the Court. The witness is not
permitted C to give opinion on the legal or the general merits of the case. The evidence of the
opinion of the expert should not be proffered on the ultimate issue. The expert must not be
asked or answer questions which the Court has to decide.

Mr Wilkinson

Mr Wilkinson has indeed established himself as an expert by reason both of his professional
D qualifications, his academic training and his personal professional experience.

The objection to the evidence of Mr Wilkinson is twofold: firstly, that the opinion given by
him, and to which I have referred in para 32 of the summary of his evidence, usurps the
function of E the Court; secondly, that the evidence to be given by Mr Wilkinson is based on
that which he heard from the defendant, ie it is evidence as to the content of a previous
consistent statement made by the defendant.

Previous consistent statements

Anglo-American jurisprudence well knows the rule against self- corroboration, or what is
also F called narrative. It is trite that the evidence of a witness - in this case the defendant -
cannot be confirmed by calling someone else to prove that the witness made a statement to
the same effect on a previous occasion. The reason is that the evidence is insufficiently
relevant. It does G not add anything of value to the evidence given in Court to be told that the
witness has always adhered to that opinion and has made that statement previously.
Repetition gives no greater force to the evidence.

Accordingly, this defendant could not be asked in Court if she had made a statement
consistent H with her evidence in Court. She could not herself narrate such a statement nor
could she refer to it. Similarly, Mr Wilkinson as another witness may not be called merely to
prove such prior statement. It is superfluous evidence.

English law allows an exception in cases involving sexual abuse. It is permitted in English
law in order to rebut the allegation of afterthought. I

In , evidence of previous consistent statements may be received when relevant for some
reason other than that the statement merely preceded the statement of the witness. We have
several examples where the evidence of previous consistent statements has been admitted.
See S v Bergh 1976 (4) SA 857 (A) . In S v Bergh (supra ) the Appellate Division analysed
English and American jurisprudence, and it clearly J
1997 (4) SA p774
SATCHWELL J

emerges that there is no numerus clausus of instances where such evidence may be relevant
A and therefore permitted.

One such occasion when a previous statement is admissible to show consistency of conduct is
what is known as 'the sexual cases'. In such instance it is required, firstly, that the statement
has B been made at the first opportunity; and, secondly, that the statement is not made in
response to leading questions or prompting. It is then admissible to show consistency, and
usually in cases involving allegations of sexual abuse or rape it is proffered in order to
negative consent.

Relevance

It is my view that the evidence of Mr Wilkinson is not relevant. C

Firstly, the major import of the evidence of Mr Wilkinson is to refer the Court to the
consultations which he had with defendant in which she made certain statements to him. The
D only reason these statements are tendered is to show consistency in the statements made by
the defendant prior to her giving evidence in this Court. These statements are superfluous.
That she made these statements on previous occasions to Wilkinson adds no greater weight to
that which she is now telling the Court.

Secondly, the circumstances under which these statements were made to Wilkinson, ie that E
they were said subsequent to the initiation of the litigation and in response to his prompting
while she was in a state of suggestibility, removes them even further afield from the realm of
admissible evidence.

Thirdly, the conclusion expressed by Mr Wilkinson in para 32 does indeed displace the value
F judgment of the Court. I refer to the case of Reckitt & Colman SA (Pty) Ltd v S C Johnson
& Son SA (Pty) Ltd 1993 (2) SA 307 (A) at 315E, where was said the following:
'The evidence of the psychologists and linguistic experts tendered in this regard was
singularly unhelpful, if not inadmissible because, as is so often the case, in the final analysis
it tended to G disguise opinion as a statement of scientific principle or fact and attempted
subtly to displace the Court's value judgment with that of the witness.'

It is required of this Court to make certain determinations on its own on an assessment and on
an evaluation of all the evidence that has been placed before the Court and not just on the H
version as presented by the defendant. Wilkinson has not had the benefit of hearing and
considering all the evidence that has been placed before the Court prior to reaching the
conclusion stated by him in para 32. He has heard only one part thereof, ie the version of the
defendant.

Fourthly, it is a well-known principle that litigants are entitled to have their disputes settled
by I Judges and not by witnesses. If the Wilkinsons of the world are too readily allowed to
give their opinions on the subject-matter of litigation, then this would lead to the balancing of
opinion as between witnesses. This would tend to shift responsibility from the Bench to the
witness-box. It would become, as it were, a gladiatorial pit between witnesses rather than a
cool and hopefully calm assessment of the evidence in its entirety as received from all
witnesses, not just experts. J
1997 (4) SA p775

SATCHWELL J

Fifth, the evidence to be given by Mr Wilkinson as to the hypnosis and the conditions under
A which the statements were made by defendant go a long way towards usurping the
judgment of the Court. It is clear from paras 12 and 13 of the summary of his evidence that
Mr Wilkinson uses certain techniques which he refers to as 'regression' and 'suggestibility'.
This indeed B contains the 'not very subtle suggestion' (see Reckitt & Colman (supra )) that
this technique is less prone to deception or to manipulation than may be attempted, and often
very successfully achieved, by witnesses in court.

The conclusion to which I am drawn must then be that hypnosis may be a more accurate
method of determining the truthfulness or otherwise of a witness' averments, because this C
information is extracted from a witness in circumstances where the witness is less able to
dissemble, and where the witness' emotional state, as referred to by Mr Wilkinson, can be
more openly and more professionally evaluated. If such a test, verging on the infallible, is to
be D accepted, then the function of the Court is indeed usurped. There would be little point in
leading witnesses in person through their evidence in Court and subjecting them to cross-
examination. After all, each potential witness could then be placed under hypnosis and a
prepared set of questions could be put to them through the hypnotist. The Court would merely
perform the function of collating the different responses from the different witnesses. This E
certainly cannot be the ultimate intended result of a court making use of expert witnesses.

Sixth, counsel for defendant submitted that the import of Mr Wilkinson's evidence is to show
that the defendant was blocking the emotional effect of the events (that is the rape) upon
herself F and that this was revealed under hypnosis. This is, so argued counsel, relevant when
one considers the emotional state of the defendant and her state of mind at the time that she
made the allegation of rape. This, says counsel, is of relevance if and when an award of
damages to the plaintiff is under consideration.

I have some difficulty with this line of argument. Mr Wilkinson says that the emotion
observed G by him adds credence to that which the defendant told him. Therefore it is
supportive of the rape allegation because it accompanies the statement that the rape took
place. Now clearly the emotion observed by Wilkinson is inextricably bound up in, and the
value of the emotion H ascribed by him goes to, the credibility of the rape allegation.
Defendant's counsel argues that the relevance of Wilkinson's evidence regarding defendant's
emotional state goes to damages which may be awarded against her. There would only be
damages if there is found to have been a publication of a defamatory statement in
circumstances where the defendant cannot I succeed in her defences of privilege or truth and
public benefit. Lack of success in those circumstances presumes, in my view, and on an
assumption that qualified privilege exists, a finding that there was no rape. Well, if there was
no rape, then Wilkinson's interpretation and understanding of the defendant's emotions are of
no assistance, because he does not give other reasons for her emotional state. J
1997 (4) SA p776

SATCHWELL J
For these reasons I conclude that the evidence of Mr Wilkinson was not relevant and I did not
A allow his evidence.

Breslin

Insofar as Breslin is concerned, I am satisfied that Breslin is indeed qualified as an expert on


the B subject of the abuse of women and rape of women.

The objection to her evidence is as follows: Firstly, her remarks are of a general nature. She
had no personal consultation or discussion with the defendant, and she is unable to testify
about the defendant herself. Secondly, it is argued that the relevance of her evidence is C
questionable.

Relevance of rape expertise

Plaintiff's counsel referred me to Sir Leslie Steven who said that the word 'relevant' meant
that
'any two facts to which it is applied or so related to each other that according to the
common D course of events one either taken by itself or in connection with other facts proves
or renders probable the past, present or future existence or non-existence of the other'.

(See Digest of the Law of Evidence 12th ed art 1.)

He argued that it is required that facts be before the Court on which Ms Breslin bases her E
evidence, and it was questioned whether or not such facts are before the Court which could
possibly permit the evidence of Ms Breslin.

However, I have regard to Hoffmann and Zeffertt South African Law of Evidence 4th ed at 85
where is said the following: F
'Opinion evidence is accepted if relevant; rejected if irrelevant. An opinion will be relevant
if it can assist the court, it is irrelevant if it cannot assist the court. A witness' opinion may
assist the court if the witness is better qualified to form an opinion than the court: if the court
is in as good a position to form an opinion as the witness, the witness' opinion is unhelpful,
irrelevant and, consequently, inadmissible.' G

It appears to me that the words 'of assistance to the court' and 'helpful' are the criteria by
which this Court should base its assessment as to whether or not the evidence of Ms Breslin
is relevant. See also Cooper (supra ).

Plaintiff's counsel then argued that the question for decision is whether or not there was a
rape H of defendant by plaintiff. The evidence about which Breslin intends to testify, it was
argued, will not assist the Court in coming to the conclusion whether or not there was a rape.
Absent any personal knowledge of the defendant by Ms Breslin, the witness' evidence is not
relevant because her evidence would only be conjecture, it would be uncertain and it would
not offer reasonable inferences. I

It is true that the evidence of Breslin would be of a general nature. This is not infrequently the
case in our Courts. In early days we frequently had evidence led in Court in order to advise
the Court of the workings and the operations of the internal combustion engine in order that
Judges would begin to understand how a horseless carriage works. Now we need general
evidence and assistance on matters such as computer technology J
1997 (4) SA p777

SATCHWELL J

and micro-electronics, being phenomena with which we are equally unfamiliar. General A
evidence is indeed frequently accepted in this Court.

From the facts before me I will be obliged to draw certain inferences. Inference, it was
observed by Lord Wright in the case of Caswell v Powell Duffryn Associated Collieries Ltd
[1940] AC 152 (HL) at 169 ([1939] 3 All ER 722 at 733E--G), must be carefully
distinguished from conjecture or speculation: B
'There can be no inference unless there are objective facts from which to infer the other
facts which it is sought to establish. In some cases the other facts can be inferred with as
much practical certainty as if they had been actually observed. In other cases the inference
does not go C beyond reasonable probability. But if there are no positive proved facts from
which the inference can be made, the method of inference fails and what is left is mere
speculation or conjecture.'

This passage has been frequently quoted by the Appellate Division. (Compare S v Essack and
Another 1974 (1) SA 1 (A) at 16D--E; AA Onderlinge Assuransie-Assosiasie Bpk v De Beer
1982 (2) SA 603 (A) at 620G; Motor Vehicle Assurance Fund v Dubuzane 1984 (1) SA 700
(A)D at 706C; see also R v Ndhlovu 1945 AD 369 at 386; R v Dhlumayo and Another 1948
(2) SA 677 (A) at 678.)

In Bates & Lloyd Aviation (Pty) Ltd and Another v Aviation Insurance Co; Bates & Lloyd
Aviation (Pty) Ltd v Aviation Insurance Co 1985 (3) SA 916 (A) at 939I--940A Nicholas JA
said: E
'From both inference and speculation must be distinguished hypothesis. This is a theory
advanced in explanation of the facts in evidence as a basis for an inference. To be logically
sound, it must be consistent with all the proved facts, and it must not postulate facts which
have not been proved. It may be advanced by a legal representative or, where the subject is a
technical one, by an expert witness. The process of reasoning by inference frequently
includes consideration of the F various hypotheses which are open on the evidence and in
civil cases the selection from them, by balancing probabilities, of that hypothesis which
seems to be the most natural and plausible (in the sense of acceptable, credible or suitable).'

(See also Ocean Accident and Guarantee Corporation Ltd v Koch 1963 (4) SA 147 (A) at
159.) G

In my view, this Court will indeed be engaged in a process of inferential reasoning. It may
well be that this Court will have to have regard to certain hypotheses, and I do bear in mind
the words of Nicholas JA which I have just quoted from Bates & Lloyd Aviation (supra ). H

The approach, as I have already indicated, with regard to the admissibility of the evidence of
experts is whether a court, by reason of its lack of special knowledge and skill, is not
sufficiently informed to enable it to undertake the task of drawing properly reasoned
inferences from the facts established by the evidence. Where the evidence of an expert may
be admitted it I would be by reason of the special knowledge and skill of such expert that
entitles the court to conclude that the expert is better qualified to advance, reject and
comment upon certain inferences in order to assist the court.

Now rape of a woman is unlikely to be a topic or experience within the personal knowledge
or experience of many judicial officers or any at all. J
1997 (4) SA p778

SATCHWELL J

Rape has frequently been described as a crime which seldom sees the light of day, let alone A
comes before the scrutiny of our courts. Rape victims or rape survivors have usually endured
their experience in silence, and the particular and somewhat unique character and features of
rape have long gone unstudied. They have certainly gone unappreciated by our courts.

In the United States of America new legislation pertaining to the admissibility of evidence of
B previous rape allegations has recently been passed by the US congress. In an interesting
article entitled 'Once a Rapist, Motivational Evidence and Relevancy in Rape Law' in the
1997 (110) C No 3 Harvard Law Review , Professor Baker of Chicago Kent College of Law
commented as follows. What she says is not new, is obvious and yet it deserves repeating:
'All rapes are not alike. They are not alike in the eyes of the men who commit them, and
they are not alike in the eyes of the jurors and the public who judge them. The degree to
which different kinds of rape adversely affect victims is still an open enquiry, but it is all too
obvious that the D perpetrators of rape and the public at large view rape along a complex
spectrum of permissibility. All rapes are in part about sex and masculinity and domination.
But some rapes are predominantly about sex. Some rapes are predominantly about
masculinity, and some rapes are predominantly about domination.'

This article argues that we cannot adequately address either the evidentiary problems in rape
E cases or the issues central to rape reform unless we begin to recognise and incorporate the
rather obvious insight that not all rapes are the same.

Indeed it is probably trite to say that the capacity for human experience is so infinite and F
unpredictable that no crime is quite the same as another. Each case must be assessed and an
attempt must be made to understand it on its own particular and unique facts.

However, rape is an experience of the utmost intimacy. The victims or survivors thereof are
largely confined to the female sex. I have heard the response of such survivors generically G
described as 'a scream from silence'. The result has been a paucity of South African legal and
judicial understanding and commentary on the full parameters and implications of this
phenomenon. Rape is an experience so devastating in its consequences that it is rightly
perceived as striking at the very fundament of human, particularly female, privacy, dignity
and H personhood. Yet, I acknowledge that the ability of a judicial officer such as myself to
fully comprehend the kaleidoscope of emotion and experience, of both rapist and rape
survivor, is extremely limited.

In such circumstances I am of the view that it would be unwise and it would be irresponsible
for myself as a judicial officer, who is lacking in special knowledge and skill, to attempt to
draw I inferences from facts which have been established by evidence, without welcoming
the opportunity to learn and to receive guidance from an expert who is better qualified than
myself to draw the inferences which I am required myself to draw. An obvious example in
the present case is the evidence that the defendant did not report the rape at the very moment
that her mother and sisters returned to the plaintiff's farm. In the normal course this Court
would certainly be entitled to draw an inference that there was J
1997 (4) SA p779

SATCHWELL J

nothing for the defendant to report to her mother or to her sisters. Certainly, if a witness'
purse A containing cash and credit cards and a cheque book had been stolen outside a bank,
and the victim failed immediately to go inside and cancel the cheque book or credit card and
to make a report to the policeman standing on the street corner while the thieves made a
getaway, then I B would consider myself entirely justified in drawing an adverse inference
from such facts. If indeed there are particular reasons, known only or known particularly to
those who work with rape survivors and who have experience in this field, why rape
survivors frequently do not take the first opportunity to make known such an assault and to
seek help, then it would ill-behove C me as a Judge of the High Court to turn my ear against
the opportunity to gain a better understanding from an available expert.

At the end of the day, however, I must stress that the value which I will attach to such
evidence will fall to be assessed in the light of all the evidence before the Court; that is the
evidence of the defendant, of the plaintiff and his wife, of their son and nephew, of the
defendant's mother D and her sisters. The guidance and opinion of Ms Breslin will merely be
one pointer for my assistance. It remains for this Court to determine the probative value of
Breslin's evidence and in what manner and to what extent it is of use in understanding the
facts before the Court.

Accordingly the evidence of Ms Breslin has been allowed and she is admissible as an expert
witness. E

S v WILMOT 2002 (2) SACR 145 (SCA)


2002 (2) SACR p145

Citation 2002 (2) SACR 145 (SCA)

Case No 180/2001

Court Supreme Court of Appeal

Judge Marais JA, Zulman JAand Nugent JA

Heard March 15, 2002

Judgment May 16, 2002

Counsel M C Maritz SC (with him T N Price) for the appellant.


J P M Marais SC for the State.
Annotations Link to Case Annotations

B
[zFNz]Flynote : Sleutelwoorde
Appeal - Application for hearing of further evidence - Appellant wishing to lead evidence
uncovered after completion of trial, which inter alia related to subsequent similar matters in
which complainant involved - Although there are dangers in court having regard to what
happened in subsequent cases in which complainant involved and Pandora's box of collateral
issues could be opened by doing so, there could be no absolute bar to doing so - It is C
obviously something which court should only be prepared to take into account in
circumstances where alleged behaviour of complainant in subsequent cases is indicative of
proclivity to level false allegations of distinctive and similar kind and there was real anxiety
in court's mind as to whether exclusion of those circumstances could not result in
perpetuation of possible miscarriage of justice - Just as similar fact D evidence is admissible
against accused only in narrowly circumscribed circumstances, so should 'similar fact'
evidence of proclivity of complainant to give untrue evidence be admissible only in narrowly
circumscribed circumstances.
[zHNz]Headnote : Kopnota

The appellant brought an application to lead further evidence, averring that subsequent to his
trial he had discovered witnesses who E would testify that the complainant had told them that
he had not raped her and had wanted to withdraw the case, but was prevented from doing so
by her mother. Further investigations had uncovered the fact that the complainant had been
the complainant in two other cases; in one case the accused had been acquitted and in the
other the complainant F had filed an affidavit with the police requesting that the case be
withdrawn as she had had intercourse with the accused in that case with her consent. In
answer to the allegations made in support of the application, the complainant inter alia
averred that she had made the affidavit withdrawing the case in the other matter in the
presence of the accused in that case's father and under pressure by him. G

Held , that, although there were some doubts cast upon the evidence the appellant sought to
lead, one could not ignore the fact that the complainant had been prepared to agree to
withdraw the charge of rape which she had laid against another accused and to state that he
did not rape her whereas, on her present version she knew that that had been untrue. On her
own version it seemed that she was vulnerable and responsive to the influence of others.
(Paragraph [35] at H 157b - f .)

Held , further, that, although there were dangers in a court having regard to what happened in
subsequent cases in which a complainant was involved and there was a Pandora's box of
collateral issues which could be opened by doing so, there could be no absolute bar to doing
so. It was obviously something which a court should only be prepared to take into account in
circumstances where the alleged I behaviour of the complainant in subsequent cases was
indicative of a proclivity to level false allegations of a distinctive and similar kind and there
was real anxiety in the court's mind as to whether the exclusion of those circumstances could
not result in the perpetuation of a possible miscarriage of justice. Just as 'similar fact'
evidence was admissible against an accused only in narrowly circumscribed J
2002 (2) SACR p146

circumstances, so should 'similar fact' evidence of the proclivity of a complainant to give


untrue evidence be admissible only in narrowly A circumscribed circumstances. (Paragraph
[36] at 157f - i .)

Held , further, that it could not be said with any degree of confidence that the disputed
statements made on affidavit in support of the application were 'so manifestly untrue, or so
grossly improbable and unconvincing' that the could justifiably be disregarded. (Paragraph
[39] at 158e .) B

Held , accordingly, that the application to lead further evidence should be granted.
[zCAz]Cases Considered

Annotations

Reported cases

Ladd v Marshall [1954] 3 All ER C 745 (CA): referred to

Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd 1971 (2) SA
388 (W): dictum at 390F - G applied

R v Blom 1939 AD 188: referred to

R v Jantjies 1958 (2) SA 273 (A): referred to

R v Kanyile and Others 1944 AD 293: order at 295 followed

R v Van Heerden and Another 1956 (1) SA 366 (A): referred to

R v Weimers and Others 1960 (3) SA 508 (A): referred to D

S v De Jager 1965 (2) SA 612 (A): dictum at 613C - D applied

S v H 1998 (1) SACR 260 (SCA) : applied

S v Lehnberg and Another 1976 (1) SA 214 (A): referred to

S v Myende 1985 (1) SA 805 (A): considered

S v N 1988 (3) SA 450 (A): referred to

S v Njaba 1966 (3) SA 140 (A): order at 145D - E followed E

S v Nkala 1964 (1) SA 493 (A): referred to

S v Steyn 1981 (4) SA 385 (C): referred to

S v Zondi 1968 (2) SA 653 (A): considered.


[zCIz]Case Information
Appeal from a decision in the Eastern Cape Local Division. The facts appear from the
reasons for judgment. F

M C Maritz SC (with him T N Price ) for the appellant.

J P M Marais SC for the State.

In addition to the authorities cited in the judgment of the Court, counsel for the parties
referred to the following: G

Bates & Lloyd Aviation (Pty) Ltd and Another v Aviation Insurance Co; Bates & Lloyd
Aviation (Pty) Ltd v F Aviation Insurance Co 1985 (3) SA 916 (A) at 939G - J

Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 All ER 722 (HL) at 733

Osman and Another v Attorney-General, Transvaal 1998 (2) SACR 493 (CC) (1998 (4) SA
1224; 1998 (11) BCLR 1362) H

R v Bezuidenhout 1954 (3) SA 188 (A) at 210B

R v Gumede 1949 (3) SA 749 (A) at 7556

R v Mokoena 1932 OPD 79 at 80

R v Ncanana 1948 (4) SA 399 (A) at 4056

S v Artman 1968 (3) SA 339 (A) at 341B I

S v Banana 2000 (2) SACR 1 (ZS) at 8d , 9c - d

S v Boesak 2000 (1) SACR 633 (SCA) at 643j - 646h

S v Boesak 2001 (1) SACR 1 (CC) in para [24] at 11

S v Bruiners en 'n Ander 1998 (2) SACR 432 (SE) at 437g - 438a

S v D 1991 (2) SACR 543 (A) at 546G - 574bJ


2002 (2) SACR p147

S v Essack and Another 1974 (1) SA 1 (A) at 16D A

S v ffrench-Beytach 1972 (3) SA 430 (A) at 4456

S v Francis 1991 (1) SACR 198 (A) at 205e - f

S v Ganie 1967 (4) SA 203 (N) at 2068

S v Gokool 1965 (3) SA 461 (N) at 469C - G


S v Ismail 1952 (1) SA 204 (A) at 209G - 210E

S v Jackson 1998 (1) SACR 470 (SCA) at 476e - 477d

S v M 1985 (1) SA 1 (A) at 3H4F B

S v M and Others 1995 (1) SACR 667 (BA) at 689b - 693b

S v Mathe 1998 (2) SACR 225 (O) at 228E - G

S v Mathlare 2000 (2) SACR 515 (A) at 518j - 519a

S v Mkohle 1990 (1) SACR 95 (A) at 98e - h

S v Mthetwa 1972 (3) SA 766 (A) at 769D - F C

S v Mtsweni 1985 (1) SA 590 (A) at 593E - G

S v Naik 1969 (2) SA 231 (N) at 234C

S v Nkosi 1998 (1) SACR 284 (W) at 287

S v Nyembe 1982 (1) SA 835 (A) at 842F - G

S v Oosthuizen 1982 (3) SA 571 (T) at 575H - 577E D

S v S 1990 (1) SACR 5 (A) at 11i

S v Snyman 1968 (2) SA 582 (A) at 588F - H

S v Sterrenberg 1980 (2) SA 888 (A) at 892E

S v Teixeira 1980 (3) SA 755 (A) at 763G - 764B

Woji v Santam Insurance Co Ltd 1981 (1) SA 1020 (A) at 1028E. E

Burchell and Milton Principles of Criminal Law 2nd at 499

Cameron 'Inferential Reasoning and Extenuation in the Case of the Sharpeville Six ' (1988) 2
SACJ 243 at 249 - 50, 257

Hoffmann and Zeffertt The South African Law of Evidence 4th ed at 61, 73, 578, 581 - 2, 589
F

Kreigler Hiemstra Suid-Afrikaanse Strafproses 5th ed at 372

Nicholas 'The Two Cardinal Rules of Logic in R v Blom' Fiat Iustitia, Essays in Memory of
Oliver Deneys Schreiner (1982) at 312 - 28
Schmidt Bewysreg 3rd ed at 92

Schmidt Bewysreg 4th at 42 - 56. G

Cur adv vult .

Postea (May 16).


[zJDz]Judgment

Zulman JA:H

[1] The appellant was convicted in the regional magistrate's court for the Albany district
sitting at Grahamstown of having raped a young girl (the complainant). He was sentenced to
11 years' imprisonment of which three years were conditionally suspended. On appeal to the
High Court of the Eastern Cape Division the conviction and sentence were confirmed. The
Court a quo granted leave to appeal against the whole of its judgment. I

[2] The appellant was acquitted on three other charges, namely rape, indecent assault and
attempting to defeat the ends of justice. Those charges of rape and indecent assault arose
from events that occurred during June 1997. The events which gave rise to the charge on
which the J
2002 (2) SACR p148

ZULMAN JA

appellant was convicted were alleged in the charge sheet to have occurred during August
1998 but the evidence of the complainant A suggested that they might rather have occurred
during June or July of that year.

[3] Shortly before the hearing of this appeal the appellant gave notice that he intended
applying for further evidence to be received by this Court in the form of affidavits from four
deponents (including the B appellant), alternatively for the matter to be remitted to the trial
court for the hearing of the evidence of those deponents as well as 'further cross-examination
of (the complainant) with such instructions regarding the taking of such further evidence as
this Court may deem C appropriate'. For the sake of brevity I will refer to the application
simply as 'the application'. In the result the appellant sought only the alternative form of
relief. The application was opposed by the respondent.

[4] In order to properly understand the application it is necessary to refer to certain of the
evidence given at the trial as also to the appellant's argument on the merits of the appeal. D

[5] The appellant is a 57-year-old farmer who farms in the Grahamstown area. The
complainant was almost 14 years old at the time of the alleged rape. She and the other
complainants on the sexual offences charges gave evidence through an intermediary pursuant
to the provisions of s 170A of the Criminal Procedure Act 51 of 1977. E

[6] The complainant, who was the first witness to testify, gave evidence to the effect that one
Mutiwe Nohesi approached her mother on a Thursday some time during the second half of
1998 and asked whether she would allow the complainant to accompany her to fetch
cabbages from F a certain farm. Her mother was initially reluctant but eventually agreed. The
complainant and Nohesi left in the company of two other persons and slept over on a farm.
On the Friday morning she and Nohesi walked along a certain road and waited alongside the
road. A white man driving a white Isuzu van stopped. He chastised Nohesi for not stopping at
'room 5'. They spoke in Xhosa. Nohesi and the complainant climbed G into the passenger cab
of the van. The man drove to a place alongside some bushes. Nohesi and the man alighted
and went into the bushes. The man then came back. He asked the complainant to take off her
clothes. The complainant started crying. The man went away and came back with Nohesi.
Nohesi asked her why she was crying and opened the driver's side door of the vehicle. The
man then undressed the complainant and H himself. Nohesi held the complainant by the arms
while she lay on the seat in the cab. The man was at the passenger side door. He then
proceeded to lie on top of the complainant and had sexual intercourse with her against her
will. She thereafter dressed and remained in the cab of the vehicle with the doors closed
while the man and Nohesi went I into the bushes. A while later the man came back to fetch
his jersey. He then left again. The man eventually returned and gave the complainant two
R10 notes. Nohesi then returned and the three of them drove for some distance before Nohesi
and the complainant alighted alongside the road. Nohesi then asked their complainant for the
money that had been given J
2002 (2) SACR p149

ZULMAN JA

to her, which the complainant handed over. Nohesi and the complainant then returned to
where they had slept the previous A night. The following morning Nohesi washed the
complainant's dress and panties and lent the complainant a skirt, which she wore. They then
proceeded to collect cabbages from 'Tuti's field' and then went into Grahamstown where,
amongst other things, Nohesi bought toy dolls for the complainant. They then returned to the
complainant's home. The B complainant made no report of the incident until some weeks
later when she experienced a burning sensation when urinating. On 6 September 1998 she
reported this to her mother. Upon further enquiry she then told her mother about the incident.
The matter was reported to the police who arranged for the complainant to be examined by
the district surgeon the next day. Dr Dwyer testified that the examination was painful; her
vagina admitted one finger; her hymen was torn and C swollen; the swelling could have been
as a result of infection or trauma to the hymen.

[7] The complainant said that she did not know who the man was who had had sexual
intercourse with her but that she heard Nohesi 'say D Tuti to him'. At no stage in her evidence
did the complainant directly identify the appellant as her alleged assailant.

[8] Nohesi was not called to testify by the State. Earlier on during the testimony of the
complainant the prosecutor indicated that Nohesi was available to consult with the defence.
Seemingly on the basis of this consultation defence counsel challenged certain of the E
complainant's evidence in cross-examination by putting to her that Nohesi would confirm
going to the farm, but that it happened on 31 July 1998 (not later, as the complainant
implied); that she did accompany the complainant, but that she did not hold the complainant;
that the complainant was not raped; that the complainant stole the F money with which dolls
had been purchased; and that Nohesi never threatened the complainant in any way. There was
no challenge of the complainant's evidence that Nohesi called the white man 'Tuti'; or that the
complainant had sexual intercourse; or that the white man had a white Isuzu van; or that they
fetched cabbages from 'Tuti's field'; or that Nohesi and the man went into the bushes; or that
the G man had asked Nohesi why they had not come to house 5. Nohesi was also not called to
testify by the defence.

[9] The complainant's evidence was followed by that of her mother who confirmed the report
made to her by the complainant. Apart from the later evidence of Dr Dwyer about his medical
examination of H the complainant no further evidence was presented which related directly to
the charge on which the appellant was convicted.

[10] A certain Mrs Nxingo gave evidence for the prosecution on the charge of attempting to
defeat the ends of justice. She deviated from her original statement to the police and was
declared a hostile witness. Before that occurred, and while giving evidence in chief, she I said
that the appellant was known as Tuti.

[11] Three young black women gave evidence concerning an incident that occurred late in
June 1998 in which the appellant committed sexual acts with them with their consent. Their
respective ages were found not to J
2002 (2) SACR p150

ZULMAN JA

have been proved by the State, and accordingly no offence was proved to have been
committed. According to their A evidence (and that of two other witnesses, Ms Nolusindiso
Nela and Ms Nomfusi Kosi) the appellant was known as 'Tuti'.

[12] What happened on that occasion was that the three women, accompanied by another
woman (Stamelatjie) were allegedly picked up B alongside the road by the appellant in his
Isuzu van. Stamelatjie got into the front of the van and the others sat at the back. The
appellant drove to Grahamstown where he dropped off a load of cabbages. He then drove
back to a spot outside the town where he stopped at some bushes. He went down into the
bushes and the three witnesses were told, in succession, to join him. The private parts of the
first young woman C were touched and fondled by the accused. He had sexual intercourse
with the other two. Stamelatjie also went to him, but apparently escaped having sexual
intercourse with him because she was menstruating. The appellant gave each of them money
(either R20 or R40) after each sexual encounter. Stamelatjie told them not to tell anyone what
had happened. They were driven back to Grahamstown and dropped off there. D

[13] The witnesses Nela and Kosi also testified that they met the appellant some time after
the incident at a place called 'Number Five' or 'Five'. He admitted to Kosi that he had had sex
with the children (presumably referring to the June 1997 incident). He also E offered these
two witnesses money to have the charges against him arising from that incident withdrawn.

[14] The appellant, as he was entitled to do, elected not to testify in his own defence at the
trial, and no witnesses were called to testify on his behalf. At no stage in the cross-
examination of any of the State witnesses, as was the case with the complainant in the F rape
charge, was a contrary version of events put to them. The general import of the cross-
examination seems to have been to test the witnesses' version of events and to show that on
their own version they consented to any sexual encounters with the person they alleged they
were with. G
[15] The magistrate believed the complainant whom he found to be 'a very good witness' who
'created a favourable impression'.

[16] In argument before this Court the appellant relies upon the following six essential
contentions in attacking his conviction:
1. The evidence of the complainant was not satisfactory in every material respect and
material criticism may be levelled at her H credibility.
2. There is no corroboration for the complainant's evidence that she was raped.
3. The trial court misdirected itself both on the evidence and by failing to apply the rules
of logic formulated in R v Blom .

1I
4. The evidence as a whole did not establish with the requisite degree of proof that the
assailant of the complainant was the appellant. J
2002 (2) SACR p151

ZULMAN JA
5. The admission by the trial court (which was confirmed by the A Court a quo ) of
evidence relating to the June incidents as 'similar fact' evidence to establish that the appellant
was the person who raped the complainant was wrong in law and amounted to a misdirection.
6. The evidence as a whole did not establish that the complainant did not consent to the act
of sexual intercourse. B

[17] Against this background I will now revert to the application. In his founding affidavit the
appellant states that on 21 January 2002 he met a former employee of his, one Bukelwa
Mantawule, in the street in Grahamstown. Mantawule told him that she had recently met the
complainant who had informed her that she wanted to withdraw the charges against the
appellant since the appellant had C not raped her. She also told Mantawule that her mother
would not allow her to withdraw the charges. The appellant then referred the matter to his
attorneys instructing them to take the matter further on his behalf.

[18] As a consequence of this a Mr Haydock, a candidate attorney employed by the


appellant's attorneys, conducted certain D investigations. According to Haydock, who
deposed to an affidavit in support of the application, the appellant, in addition to telling him
about his meeting with Mantawule in a street in Grahamstown, also told him that prior to this
the complainant was involved in 'two further rape charges as a complainant'. This latter fact is
not referred to in E the appellant's founding affidavit. As a result of investigations which he
conducted through the office of the relevant prosecutor and the detective branch of the police
Haydock obtained copies of the contents of dockets in the two cases to which the appellant
had referred him. F

[19] The first docket related to the case of the S v Minethu Nojoko in which the accused was
alleged to have raped the complainant. The docket also revealed that subsequent to the
complainant laying the charge of rape on 4 February 2001 the complainant on 19 February
2001 retracted a sworn declaration that Nojoko had raped her and stated in an affidavit that
Nojoko had had sex with her with her consent. G

[20] In an affidavit annexed to Haydock's affidavit and deposed to by a Mr Wolmarans, an


attorney who also practises in Grahamstown, it appears that the complainant in this matter
was also the complainant in a charge of rape against two accused (Mzwanele Gladman Mani
and Julius Tendisisiswe Maki) who were defended by Wolmarans. The complainant's
evidence that she had been raped by the two accused was rejected by the H court. The
accused were, however, convicted of the statutory offence of having sexual intercourse with a
girl under the age of 16. The complainant's evidence was that she was 14 years old at the time
the offences were alleged to have been committed. According to the complainant's birth
certificate, which was produced in evidence in the I trial that is the subject of this appeal, she
was 16 years and 3 months old at the time of that alleged offence.

[21] At the request of the appellant, Mr Rusa, an attorney employed by another Grahamstown
firm of attorneys, took full statements from J
2002 (2) SACR p152

ZULMAN JA

Ntombehkaya Ntlokwana (Ntombehkaya) and Noncedo Ntlokwana A (Noncedo) relating to a


conversation that they allegedly had with the complainant. Rusa attaches affidavits from
these persons to an affidavit deposed to by him. In addition Rusa deposes to the fact that on
24 January 2002 (three days after the appellant's meeting in the street with Mantawule), the
appellant brought Mantawule to his office and asked him to take a statement from her. He did
this in the B appellant's absence. Rusa attaches an affidavit from Mantawule to his affidavit.

[22] The affidavit of Ntombehkaya was to the following effect:


1. On 8 January 2001 she, together with two friends of the complainant, were at the home
of the complainant where they spent the afternoon. C
2. The complainant informed them that 'there was a white man at the station who sleeps
with black females' and that 'the mothers of these females would lay charges against this
white man for having slept with their children'.
3. The complainant said that she 'did not want to lay charges D against Mr Wilmot, but her
mother insisted that she must do so'. She told them that the reason why she did not want to
lay charges against Mr Wilmot was that she was not raped by him.
4. Her mother asked her 'to allege that she had been raped by Mr Wilmot'. E
5. The conversation came about because her friends had asked the complainant why she
was often attending court.

[23] Noncedo's affidavit is to the effect that:


1. Early in March 2001 she was with the complainant who informed her that 'she was not
raped by Mr Wilmot but asked by her mother to accuse him of having done so'. F
2. The complainant said that this was because she did not know the white male who raped
her under the bridge. She said that she was told by her mother that Mr Wilmot had been
arrested and charged for rape and that it could be him who had raped her. The complainant
further said that G
'she was informed by her mother that the little girls who were raped by Mr Wilmot were
of the same age as her. She informed me that she went to the police to inform them that she
was raped by Mr Wilmot.'
3. During mid-March 2001 the complainant visited her and her younger sister, Motiwe.
During the conversation the complainant said H that
'there were white men at Kongo who were sleeping with black females. She said that she
was one of those females who slept with these white males. She further said that these white
males would pay R20 or R60 to any female who slept with them. She invited Motiwe to visit
Kongo in order to sleep with one of these males. However, Motiwe did not respond to the
invitation.' I

[24] Mantawule in her affidavit states that:


1. In December 2001 she went to the complainant's mother's home.
2. When she arrived there she found the complainant together with her friends, she asked
the complainant where her mother was and J
2002 (2) SACR p153

ZULMAN JA
was told that she had gone out for a few minutes but that she would be back soon. A
3. She decided to wait for the mother. Whilst waiting one of the complainant's friends
asked the complainant what was happening with her case. The complainant replied that she
wanted to withdraw the case but her mother did not want her to do so. B
4. The complainant was asked which white male the complainant had laid charges against.
She replied by saying that it was Tuti.
5. She immediately knew who the complainant was referring to as she had once worked
for the appellant and he had always been known as Tuti. C
6. The complainant went further and said that Tuti had not raped her but that her mother
told her to accuse Tuti of having done so. Mantawule then joined in the conversation and
asked the complainant 'who had raped her if it was not Tuti. Her reply was that she did not
know the identity of her rapist.'
7. On Monday, 21 January 2002, whilst she was at her home, which is not far from the
complainant's home, she noticed the D complainant sitting alone under a tree. She decided to
talk to her. After exchanging pleasantries and some talk about things in general she asked the
complainant what was happening between her and Tuti. The complainant told her that she
wanted to withdraw her rape charge against Tuti (the appellant) as, she said, she had not been
raped by E him. She said that because her mother refused to allow her to do so she had
continued with the case.
8. The reason why she asked the complainant about the appellant was that she had known
the appellant for a long time as she had once worked for him on his farm. Furthermore, she
was worried about the appellant as her former employer. F
9. On the afternoon of 21 January 2002, she coincidentally met the appellant whom she
had last seen in 1992. This was just after she had spoken to the complainant. She told him
about the conversation she had with the complainant. The appellant said that he would refer
the matter to his lawyers. G

[25] Some eight affidavits have been filed by the respondent in support of its opposition to
the application. The first is by the complainant in which the following appears:
1. She refers to the allegations made concerning her by Ntombehkaya, Noncedo and
Mantawule. H
2. She denies that she ever wanted to withdraw the case against the appellant on the basis
that he was not the one who raped her. She also denies that her mother at any stage persuaded
or tried to persuade her to proceed with the case. I
3. She asserts that the appellant did rape her. She states that she would have pointed him
out at court had she been afforded the opportunity to do so.
4. She denies the entire contents of certain paragraphs of Noncedo's affidavit concerning,
inter alia , the fact, that she said that she did not know the white man who raped her under the
bridge; that J
2002 (2) SACR p154

ZULMAN JA
during mid-March 2001 she said that she was one of those who slept with white males
who pay R20 or R60 to any female who slept A with them. Perhaps due to an oversight, she
does not deal specifically with para 3 of Noncedo's affidavit. In this paragraph Noncedo
states that the complainant had told her that 'she was not raped by Mr Wilmot'.
5. She draws attention to the fact that Noncedo is the sister of Motiwe Nohesi who was
present when the appellant raped her and that B Nohesi was originally to have been called a
State witness to confirm that she had been raped. She contends that it would have been
foolish and futile for her to try to tell Nohesi's own sister a different story because Nohesi
would have told her sister that she (the C complainant) was lying as she had seen what
actually happened and that she was in fact raped by the appellant.
6. As regards Ntombehkaya and Mantawule she states that she has never heard of them
and that she asked her parents whether they knew these names but her parents were unable to
help her. D
7. She states that she accompanied the police with her parents to both their home
addresses; she said that she had never been there before and did not know the houses.
8. She avers that on 5 March 2002 'we managed to get (presumably meaning find)
Bukelwa Mantawule's home. Although she mentioned my name and claimed to know me, I
have never seen her before.' E
9. She admits that it is correct that she withdrew the rape charge against Nojoko but
asserts that Nojoko did rape her. The reason for her withdrawing the charge was because she
was persuaded to do so by Nojoko's father who said that his son would lose his job and go to
F prison if convicted of such a serious crime. The father accompanied her to the police station
when she withdrew the case.
10. She states regarding the cases of Mani and Maki that she can do nothing about the fact
that the magistrate did not accept her evidence (implying thereby that it was nonetheless true)
and that the accused's G attorney of record, Wolmarans, formally admitted her age and never
investigated it - she did not realise the relevance of her age.

[26] In an affidavit deposed to the investigating officer in the appellant's case she states: H
1. She was also the investigating officer in the Nyoko case and that she took down the
complainant's withdrawal statement in the presence of Nyoko's father and the complainant.
2. Despite such withdrawal the prosecutor has refused to withdraw the case which has
been remanded for trial in June 2002.
3. She states that Nohesi was a key witness for the State who I corroborated the evidence
of the complainant materially but at the trial recanted on what the appellant had done.
4. She annexes copies of different statements made by Nohesi who appears to have been
21 years old at the time. In one of these statements signed by Nohesi on 11 August 1999, she
states that J
2002 (2) SACR p155
ZULMAN JA
the appellant never had sexual intercourse with the complainant and that A she had made
a statement to the police falsely implicating the appellant because the police promised to pay
her R1 000 for doing so. The affidavit also contains much argumentative matter which is not
admissible.

[27] The next affidavit is that of the complainant's mother in which she corroborates what the
complainant stated in her affidavit B concerning her mother's role in the matter, the fact that
Mantawule and Ntombekhaya are not known to her, and she denies allegations made by
Noncedo and Ntombehkaya as far as they relate to her.

[28] In an affidavit by the complainant's stepfather he also states that he does not know
Mantawule or Ntombehkaya. As regards Noncedo he states that she is his neighbour and that
in the course of C December 2001 she came to see him at his house and told him that the
appellant wanted to see him ('Tuti soek vir jou') but that he ignored the request.

[29] The final affidavit filed in support of the respondent's opposition to the application is
that of Hambile D Wellington Stefane. He is a detective inspector in the police service. He
was concerned with taking the complainant, her mother and her stepfather to the addresses of
the deponents Ntombehkaya and Mantawule. He states that Ntombehkaya was unknown at
the address given in her affidavit. He corroborates the statements of the complainant, her E
mother and stepfather that on visiting Mantawule's house and upon seeing Mantawule they
claimed not to know her, to which Mantawule responded to by questioning how they could
say they did not know her.

[30] The appellant's replying affidavit consists essentially of F a denial of all matters of
relevance in the affidavits filed by the respondent.

[31] The prerequisites for a successful application for remittal, as formulated in S v De Jager
,

2 and applied in numerous cases since, are:


'(a) There should be some reasonably sufficient explanation, based on allegations which
may be true, why the evidence G 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.'

It is also, as pointed out by Smalberger JA, in S v H ,


gh

3 a fundamental and H well-established principle of our law that in the interests of finality,
once issues of fact have been judicially investigated and pronounced upon, further evidence
will only be permitted in special circumstances. Accordingly the power to hear new evidence
on appeal or to remit a matter to a trial court to hear such evidence will be sparingly exercised
and only when the circumstances are exceptional.

R v JantjiesS v NS v de Jagersupra

4I
2002 (2) SACR p156

ZULMAN JA

A further factor which weighs against the exercise of the power of A remittal is the
possibility of fabrication of testimony after conviction and the possibility of witnesses being
bribed to retract evidence given by them.

R v Van Heerden and AnotherS v NkalaLadd v Marshall

The mere fact that a witness at the trial has gone back on his statement given 'will not
ordinarily warrant the grant of an order re-opening a concluded trial'.

S v Zondi

6B

On the other hand even if an application for remittal fails the test referred to above the Court
in the exercise of an overall discretion vested in it, and obviously only in very special
circumstances, may nevertheless grant the application.

S v Myende

7
The onus of establishing the requirements set out above clearly rests upon an applicant
seeking remittal. C

[32] In as much as the evidence sought to be led relates to events which occurred subsequent
to the appellant's trial and is evidence which obviously could not be led at the trial,
requirement (a) in De Jager's case has been satisfied.

S v Lehnberg and AnotherS v Nsupra

8D

[33] As to the 'prima facie likelihood' in requirement (b) there 'remains some uncertainty as
to its precise juristic connotation'.

S v Hsupracd

9 After referring to the very careful and comprehensive analysis of the question by Marais J
in S v Steyn ,

10 the answer to the question was expressly left open in S v H .

Suprace

11 The question is whether E the test requires some degree of probability that the evidence in
question will be accepted as true, or whether a reasonable possibility of that being so will
suffice. The result could of course vary, depending upon which test is applied in a particular
case. I will revert to this aspect of the matter presently.

[34] There is a clear dispute of fact on the papers as to whether the complainant made the
statements retracting her allegation F of having been raped by the appellant. Three persons
Mantawule, Ntombehkaya and Noncedo state that the complainant told them that she had not
been raped by the appellant but that she had falsely accused the appellant because her mother
told her to do so. Mantawule avers that the statement was made to her by the complainant on
two different G occasions once in December 2001 and again on 21 January 2002. According
to Ntombehkaya a similar statement was made to her on 8 January 2001. Noncedo avers that
she was told early in March 2001 by the complainant that she was not raped by the appellant
but that she was asked by her mother to accuse him of doing so. On the other hand the
complainant in her affidavit denies that she ever made any such H
2002 (2) SACR p157

ZULMAN JA

statements. She goes further and avers that she has never heard of A Ntombehkaya and
Mantawule. There are certain shortcomings and possible improbabilities in the affidavit
evidence presented by the appellant. For example, in para 4.4 of his replying affidavit,
although he denies raping the complainant, he stops short of stating that he did not have
consensual intercourse with her. He also does not deny or seek to explain the statement made
by the complainant's stepfather that he had been given a message that the appellant wanted to
see him. B

[35] It is perhaps strange that the appellant would have met his former employee
(Mantawule) by chance in the street in January 2002 when according to Mantawule she last
saw the appellant some ten years previously in 1992 and that she would have told him about
what the complainant had allegedly told her. According to Mantawule she had C spoken to
the complainant on the very day of the meeting with the appellant (21 January 2002). The
corroboration by the policeman (Stefane) and the complainant's mother and stepfather of the
complainant's assertion that she does not know Mantawule also casts some doubt upon
Mantawule's credibility. It is also strange that the D police established on 1 March 2002 that
Ntombehkaya was unknown at the address which she gave in the affidavit which she deposed
to on 15 January 2002 as being her residential address. On the other hand one cannot ignore
the fact that the complainant was prepared to agree to Nojoko's father's request to withdraw
the charge of rape which she had laid against Nojoko and to state that he did not rape her E
whereas on her present version she knew that that was untrue. There is also the fact that she
was disbelieved in the Mani and Maki trial in which she alleged that she had been raped. On
her own version of what occurred in the Nojoko matter it seems that the complainant is
vulnerable and responsive to the influence of others. F

[36] I am mindful of the dangers of a court having regard to what happened in subsequent
cases in which a complainant was involved and the Pandora's box of collateral issues which
could be opened by doing so. But there can be no absolute bar to doing so. It is obviously
something which a court should only be prepared to take into account in circumstances where
the alleged behaviour of the complainant in G subsequent cases is indicative of a proclivity to
level false allegations of a distinctive and similar kind and there is real anxiety in the court's
mind as to whether the exclusion of those circumstances may not result in the perpetuation of
a possible miscarriage of justice. Just as similar fact evidence is admissible against an
accused only in narrowly circumscribed circumstances, so should 'similar H fact' evidence of
the proclivity of a complainant to give untrue evidence be admissible only in narrowly
circumscribed circumstances.

[37] Here we have the disturbing feature that in two other cases involving allegations of rape
by the complainant her credibility has I been found wanting. Once because she herself made
flatly self-contradictory statements on oath as to whether she was raped and once because her
evidence conflicted in material respects with that of a friend who also testified for the State.
The complainant's evidence in that case was found by the magistrate to be unreliable. There
may well be innocent explanations J
2002 (2) SACR p158

ZULMAN JA

for the latter. It is conceivable that the friend's evidence was the unreliable evidence and not
the A complainant's or that, faced with the conflict, the magistrate did not know whose
version was correct. One does not know. In the former case, it may well be that her initial
allegation of rape is indeed true and that her retraction of this allegation was the result of
influence being brought to bear upon her but the fact remains that, at best, she succumbed to
the influence and committed perjury in retracting her B allegation that she was raped.

[38] Suffice it to say that I am not able to safely say where the truth lies in the clear dispute of
fact which is apparent from the papers. In this connection I am conscious of the following
wise remarks of Colman J, in Metallurgical and Commercial Consultants (Pty) Ltd v Metal
Sales Co (Pty) Ltd :

12C
'My conclusion rests upon my experience, and the experience of others before me, which
shows that an assertion or a denial which seems very probable or improbable on a reading of
a set of affidavits often takes on a different colour when the veracity of the person who has
made it is tested by cross-examination. There is the rare case, of D course, in which a
disputed statement made on affidavit is so manifestly untrue, or so grossly improbable and
unconvincing that the Court is justified in disregarding it without recourse to oral evidence.'

[39] I cannot say with any degree of confidence that the disputed statements made on
affidavit in support of the application are 'so manifestly untrue, or so grossly improbable and
unconvincing' that I E am justified in disregarding them. The test postulated by Marais J in S
v Steyn

Supra

13 is, I think, satisfied. I cannot say there is no reasonable possibility that the new evidence
tendered could be true. If the test has to be set somewhat higher (a matter I, too, shall leave
open) it is less clear that requirement (b) has been satisfied. But the exceptional F
circumstances of this case leave me with a feeling of unease that I have been unable to quiet.
In such a situation, doctrinaire insistence upon the fulfilment of a requirement which becomes
increasingly difficult to fulfil the higher the test is set could be productive of miscarriages of
justice.

[40] As to requirement (c) postulated in S v De Jager ,

Supra

14 and after careful G consideration of all of the affidavits with due regard to what I have
said above, I believe that the appellant has also shown that the evidence that he seeks to lead,
if accepted as true, is materially relevant to the outcome of the trial. The credibility of the
complainant who is a single young witness was at the heart of the State's case and was of
prime importance in the conviction of the H appellant on the sole charge which is now under
attack. Indeed, as I have already pointed out, the magistrate found the complainant to be a
very good witness. That credibility finding will obviously require revision if the magistrate
believes the witnesses whom the appellant now wishes to call

R v Weimers and Others

15 or even if he is left in doubt as to whom to believe. I


2002 (2) SACR p159

ZULMAN JA

[41] Bearing all the above considerations in mind, I have come to the conclusion that the
particular circumstances of the present case A warrant this Court in granting the application. I
reach that conclusion mindful of the fact that if the complainant was indeed raped by the
appellant it involves the complainant having to face yet again the trauma of reliving the
episode and testifying about events which occurred long ago. She may well be hampered in
doing justice to herself B when testifying because of that. If she was indeed the victim of a
rape by the appellant, it is distressing that she will have been subjected to yet further anguish.
If, on the other hand, she was not telling the truth, she will have brought this upon herself. It
goes without saying that the observations tentatively made in this judgment as to the possible
veracity or lack of it of the new evidence are in no way to C influence the magistrate who
will assess the evidence independently and after having heard the witnesses testify and be
cross-examined.

[42] The following order, which is in accordance with the orders made in cases such as R v
Kanyile andD Others ,
16R v Jantjies ,

Supra

17S v Zondi,

Supra

18S v Njaba

19 and S v Myende ,

Supra

20 is made:
1. The appellants conviction and sentence on a charge of raping the complainant is set
aside.
2. The case is remitted to the trial court (regional magistrate M S Dunywa) to: E
(a) hear such evidence, if any, as the State or the accused may wish to give or call or the
court may consider it necessary to call in the interests of justice relating to the issues raised in
the said affidavits filed in this Court;
(b) hear the evidence of the deponents to the affidavits filed in this Court in the
application of the appellant (accused) to F lead further evidence, such evidence being subject
to further examination, cross-examination and re-examination;
(c) consider such evidence, hear argument thereon, and give a decision de novo on all
the evidence.
3. In making the orders set out in para 2 no derogation is intended from the provisions of s
151(1)(b) of the Criminal G Procedure Act 51 of 1977 is intended.

Marais JA and Nugent JA concurred.


Appellant's Attorneys: Wheeldon Rushmere & Cole, Grahamstown; Honey & Partners Inc,
Bloemfiontein.

Previous Page Next Page

S v PIETERSEN 2002 (1) SACR 330 (C)


2002 (1) SACR p330

Citation 2002 (1) SACR 330 (C)

Court Cape Provincial Division

Judge H J Erasmus AJ

Heard October 10, 2001

Judgment October 10, 2001

Counsel P J Snyman for accused No 1.


Van Tonder for accused No 2.
M Pothier for accused No 3.
T Bluff for accused No 4.
H Booysen for the State.

Annotations Link to Case Annotations

[zFNz]Flynote : Sleutelwoorde
Evidence - Witnesses - Cross-examination - Of previous convictions - When permissible
under s 197(b) of Criminal Procedure B Act 51 of 1977 - When 'shield' against cross-
examination to credit lifted in terms of s 197(b) accused still has ordinary witness' immunity
against being asked questions which were not relevant to his credibility or the issue.
[zHNz]Headnote : Kopnota

During the course of a criminal trial on charges of murder, robbery with aggravating
circumstances and the unlawful possession of arms and C ammunition and after the State had
closed its case, counsel for accused No 3, whilst cross-examining accused No 1, indicated
that he intended cross-examining accused No 1 to credit under the provisions of s 197(b) of
the Criminal Procedure Act 51 of 1977. During the course of such cross-examination counsel
sought to go beyond the D fact of accused No 1's conviction for two counts of murder,
attempted murder and offences under the Arms and Ammunition Act 75 of 1969 and for
which he was sentenced in respect of the counts of murder to two life sentences, and
attempted to elicit from accused No 1 the facts underlying and the details of the crimes of
which he had been found guilty, where and how the offences were committed, the evidence
accused E No 1 gave at his trial and, in particular whether he had falsely sought to
incriminate others at his trial. Counsel for accused No 1 objected to this line of cross-
examination and contended that it would be highly prejudicial to his client and infringed his
client's constitutional right to a fair trial.

Held , that when the 'shield' against cross-examination to credit was lifted in terms of s 197(b)
, the accused still F had the ordinary witness' immunity against being asked questions which
were not relevant to his credibility or the issue.

Held , further, that the court had a discretion to restrain and control the ambit of the cross-
examination under s 197(b) . The discretion had to be exercised in the light of the principles
governing relevance. The cross-examination had to be G relevant to the issue of credibility
and it could not prejudice the accused being cross-examined in the conduct of his defence to
the extent that his right to a fair trial was undermined.

Held , further, that in the circumstances of the case where the record of the accused (that he
was serving two life terms for murder); that these offences were committed shortly after the
events which gave rise to the charges in the present case; the similar facts H which were
sought to be elicited related to those offences and would be inadmissible as evidence-in-chief
to prove the accused's guilt; the allegation that accused No 1 had in his previous trial falsely
sought to incriminate others was of limited probative value and might require the court to
explore collateral issues; and the evidence of accused No I 1 which implicated accused No 3
was to be weighed within the totality of the evidence adduced by the prosecution and the
defence, cross-examination of the details of accused No 1's conviction should not be
permitted.
[zCIz]Case Information

Adjudication of a question of the permissibility of cross-examination of a co-accused. J


2002 (1) SACR p331

P J Snyman for accused No 1. A

Van Tonder for accused No 2.

M Pothier for accused No 3.

T Bluff for accused No 4.

H Booysen for the State.


[zJDz]Judgment

H J Erasmus AJ: The four accused are standing trial on four counts: (i) murder; (ii) robbery
with B aggravating circumstances, and (iii) and (iv) unlawful possession of arms and
ammunition in contravention of the provisions of the Arms and Ammunition Act 75 of 1969.

After the State had closed its case, Mr Snyman , who appears on behalf of accused No 1,
called his client to give evidence in his own defence. Mr Pothier , who appears for accused
No C 3, while cross-examining accused No 1, indicated that he intended cross-examining
accused No 1 to credit under the provisions of s 197(b) of the Criminal Procedure Act 51 of
1977 ('the Act'). The section reads as follows:
'An accused who gives evidence at criminal proceedings shall not be asked or required to
answer any question tending to show that he has D committed or has been convicted of or has
been charged with any offence other than the offence with which he is charged, or that he is
of bad character, unless -
(a) . . .
(b) he gives evidence against any other person charged with the same offence or an
offence in respect of the same facts;. . . ' E

In R v Bagas 1952 (1) SA 437 (A) at 440H - 441A Van den Heever JA said the following
about the purpose of the similarly worded s 295(b) of the Criminal Procedure Act 31 of 1917:
'Paragraph (b) excepts from the general protection accorded to accused persons by the
section every one ''who has given evidence against any person charged with the same
offence''. This F provision is obviously not conceived as a procedural penalty, but in the
interests of the other person charged with the same offence, who would otherwise have been
precluded from exercising the normal rights of an accused person to discredit in cross-
examination any witness who testified against him.'

In Murdoch v Taylor [1965] 1 All ER 406 (HL) at 415b it was held that the object of the
similarly worded G s 1(f) (iii) of the Criminal Evidence Act, 1898, was 'clearly to confer a
benefit on a co-accused' who may show, by reference to another accused's previous offences,
that the latter's 'testimony is not worthy of belief'.

Accused No 1 and accused No 3 are 'charged with the same offence' H and they have been
joined in the same trial (R v Manana 1926 OPD 1). In giving evidence in his own defence,
accused No 1 gave evidence 'against' accused No 3 in that he supported the prosecution's case
against accused No 3 that it was accused No 3 who shot the deceased, and that accused No 3
removed the body of the deceased from the 'bakkie' and pushed it over the precipice. (See
Hoffmann and Zeffertt The SA Law of Evidence 4th ed at 45, I referring to Murdoch v Taylor
(supra ). See also R v Varley [1982] 2 All ER 519 (CA).)

It has been held that once an accused gives evidence against a co-accused charged with the
same offence, the immunity afforded by s 197 is forfeited and the Court has no discretion to
prevent an accused J
2002 (1) SACR p332

H J ERASMUS AJ

from exercising his rights under s 197(b) . The accused giving evidence is accordingly
required to answer any question A tending to show that he has been convicted of any offence
other than the offence with which he is charged (S v Mazibuko and Others 1988 (3) SA 190
(A) at 197H; see R v Ellis [1961] 2 All ER 928 (CA); Murdoch v Taylor (supra ) and R v
Varley (supra )). B

Mr Snyman conceded this much and Mr Pothier elicited the following from accused No 1:
On 31 August 2000 he was sentenced to two life sentences and a lengthy term of
imprisonment. The sentences were imposed in respect of two count of murder, one count of
attempted murder and counts under the Arms and Ammunition Act 75 of 1969 for the
unlawful possession of firearms and ammunition. [Accused No 1 was not certain whether he
is also serving a sentence for robbery C with aggravating circumstances.] At his trial, he
pleaded not guilty to all the charges and gave evidence in his own defence. Despite his plea
and his evidence, he was found guilty and sentenced as set out above.

Mr Pothier sought to go beyond the fact of conviction and to elicit from accused No 1 the
facts underlying - the details of the D crimes of which he had been found guilty, where and
how the offences were committed, the evidence accused No 1 gave at his trial and, in
particular, whether he had falsely sought to incriminate others. Mr Pothier said that although
his purpose was to impugn the credit of accused No 1, it was inevitable that his cross-
examination would elicit information of similar facts. E

Mr Snyman objected to this line of cross-examination. He contended that it would be highly


prejudicial to his client and infringe upon his client's constitutional right to a fair trial as
entrenched in s 35(3) of the Constitution of the Republic of South Africa Act 108 of 1996
('the Constitution'). Mr Pothier argued that his client is also entitled to a fair trial and that he
F would be prejudiced in the conduct of his defence if he were to be denied the opportunity to
cross-examine accused No 1 along the lines indicated.

Mr Pothier indicated during argument that, should accused No 2 give evidence in his own
defence, he intended cross-examining him along the same lines. Mr Bluff , who appears for
accused No 4, said that he also intended cross-examining accused Nos 1 and 2 along G the
lines indicated by Mr Pothier . I accordingly heard argument not only from Mr Snyman and
Mr Pothier , but also from Mr Van Tonder , who appears on behalf of accused No 2, and
from Mr Bluff on behalf of accused No 4.

In English law the only fetter on the right of a co-accused to H cross-examine another
accused under the provisions of s 1(f) (iii) of the Criminal Evidence Act, 1898, is relevance.
Questions concerning the previous convictions of an accused are relevant to his credibility.
The subject-matter of the cross-examination must, therefore, be relevant to the accused's
credibility as a witness (Murdoch v Taylor (supra at 410); and see the note by DJB on R v
Reid , Court of I Appeal Criminal Division, May 26, 1989, in [1989] Criminal Law Review
719 - 20). The same approach was adopted in Lui Mei-lin v R [1989] 1 All ER 359 (HL) in
which it was held that the right of an accused to cross-examine a co-accused on a previous
inconsistent statement made by the latter, is unfettered and that the only limitation on that
right is relevancy. J
2002 (1) SACR p333

H J ERASMUS AJ

In S v Mazibuko and Others (supra at 197H) it is stated that - A


'[t]here is a considerable body of authority which supports the view that a Court, when
cross-examination is authorised by s 197(b) , has no general residual discretion to prohibit or
restrict such cross-examination on grounds of irrelevancy or at all'.

The learned Judge of Appeal, however, found it unnecessary in that case to decide the
question, since B
'firstly, the initial ruling was not based on the exercise of any judicial discretion and,
secondly, as I have indicated, none of the previous convictions are clearly relevant'.

I agree with the view expressed by Paizes (in Du Toit et alCommentary on the Criminal
Procedure Act at 23 - 32A) and Hoffmann and Zeffertt (The SA Law of Evidence 4th ed at C
40) that when the 'shield' against cross-examination to credit is lifted in terms of s 197(b) ,
'the accused still has the ordinary witness's immunity against being asked questions which are
not relevant either to his credibility or to the issue'. In a footnote on the same page, Hoffmann
and Zeffertt submit that 'the D accused's procedural right to attack his co-accused's character .
. . does not allow irrelevant cross-examination.'

This view is underscored by the judgment in S v Mthembu and Others 1988 (1) SA 145 (A) at
150G - J where the following is said:
'If cross-examination in relation thereto [a previous conviction] is permissible at all (having
regard to the provisions of ss 197 and 211 of the Act), it must be limited to the extent that any
E further details sought are relevant (in the legal sense) to an issue at the trial. In the present
instance details concerning the exact nature of the first appellant's previous conviction and
the sentence imposed in respect thereof have no relevance to any issue in dispute between the
first appellant and the respondent. Even assuming that the fact of the first appellant's
conviction was relevant to his alibi defence, F the details thereof were not, for they were not
strictly necessary either to test or disprove his alibi. This disposes of the respondent's
contentions. Apart from the above considerations the cross-examination elicited information
highly prejudicial to the first appellant which the dictates of fairness and justice require
should not have been revealed. In the present matter, therefore, cross-examination as to the
details of the first appellant's previous conviction should not have been permitted, and the
allowance of such cross-examination G constituted an irregularity.'

In English law, the attitude seems to be that an attack on an accused's credibility by a co-
accused is not fettered by considerations of the accused's 'state of health' (see, for example, R
v Miller [1952] 2 All ER 667 at 668H - 669A). D W Elliott ('Cut Throat Tactics: the freedom
of an accused to prejudice a H co-accused' [1991] Criminal Law Review 5 - 17 at 5) says in
this regard:
'Although the accused at the receiving end (D 1) is, on the need to avoid undue prejudice to
him, shielded from several kinds of attack from the Crown, these protections fall away if
similar attacks come from his partner in the dock (D 2). The pious justification offered for
leaving D 1 naked to these attacks is that, although it is hard on him, I the paramount need is
that D 2 must not be hampered in his defence by considerations of D 1's safety. This is
somewhat disingenuous.'

In a dissenting judgment in Murdoch v Taylor (supra ), Lord Pearce expressed the view that a
Judge should under s 1(f) (iii) of the Criminal J
2002 (1) SACR p334

H J ERASMUS AJ

Evidence Act, 1898, have a discretion whether to allow any cross-examination as to previous
A convictions or bad character. Part of his reasoning is that, in given circumstances, an
accused may be able to 'make his escape over the (perhaps innocent) body of a co-accused'
(at 411I). Lord Pearce adds (at 411I - 412A):
'In such a difficult matter, which may not infrequently arise in borderline cases, the Judge,
who sees the general run of the case as it B unfolds before him, can produce a fairer result by
the exercise of a judicial discretion than by the strict and unfettered application of an arbitrary
rule of law.'
In terms of s 35(3) of the Constitution, both accused No 1 and accused No 3 are entitled to a
fair trial. The section 'embraces a concept of substantive fairness' which requires a criminal
trial to be conducted not only in accordance with applicable formalities, rules and C
principles of procedure, but also in accordance with those 'notions of basic fairness and
justice' which underlie all civilised systems of criminal administration (S v Zuma and Others
1995 (2) SA 642 (CC) at 642 (CC) at 652A - D). Moreover, the concept of a fair trial
involves the interests, not only of the accused, but also those of society. In Key v Attorney-
General, Cape Provincial Division and DAnother 1996 (2) SACR 113 (CC) ; 1996 (6)
BCLR 788 (CC) at para [13] Kriegler J said:
'In any democratic criminal justice system there is a tension between, on the one hand, the
public interest of bringing criminals to book and, on the other, the equally great public
interest in ensuring that justice is manifestly done to all, even those suspected of conduct E
which would put them beyond the pale.'

Fairness is an issue to be decided upon the facts of each case, and the trial Judge is the person
best placed to take that decision (Ferreira v Levin NNO and Others ; Vryenhoek and Others v
Powell NO and Others 1996 (1) BCLR 1 (CC) at para [153]: Key v Attorney-General, Cape
Provincial Division and AnotherF (supra at para [13]).

A conflict of interest has arisen between the accused: what is fair and just to the one, may be
highly prejudicial to the other. It is my task to hold the scales fairly, not only as between the
prosecution and the accused, but also as between the accused, and to secure a fair trial for all.
G

In S v Aimes 1998 (1) SACR 343 (C) , Desai J held that in a situation where a conflict arose
between several accused as to the admissibility of improperly obtained evidence, the Court
has to exercise a discretion and to find a formula which would prevent prejudice. The Court
resolved the impasse in that case by ruling the disputed evidence admissible as against the
one accused, and inadmissible against the other. H

In my view the Court has a discretion to restrict and control the ambit of the cross-
examination under s 197(b) . The discretion must be exercised in the light of the principles
governing relevance. The cross-examination must be relevant to the issue of credibility, and it
must not prejudice the accused being cross-examined in the conduct of his defence to the
extent that his right to a fair trial is undermined. The factors to be weighed which are before
me at I this stage of the proceedings are the following:
1. The record of the first accused has been elicited under the provisions of s 197(b) of the
Act, and it is known that he is serving two life sentences for murder, and terms of
imprisonment for J
2002 (1) SACR p335

H J ERASMUS AJ
attempted murder and convictions under the Arms and Ammunition Act 75 A of 1969.
2. I was informed during argument that those sentences were imposed in respect of
offences committed shortly after the events which give rise to the charges on which the first
accused is standing trial in these proceedings. B
3. The similar facts which Mr Pothier says may be elicited during his proposed cross-
examination relate to those offences. Evidence thus admitted against accused No 1 will be of
similar facts which would be inadmissible in-chief to prove his guilt. Such similar facts are
not relevant to the issue of credibility.
4. The allegation, which Mr Pothier seeks to explore in cross-examination, that accused
No 1 had in his previous trial falsely C sought to incriminate others, is (i) of limited probative
value, and (ii) may require the Court to explore collateral issues.
5. The evidence of accused No 1 which implicates accused No 3 is to be weighed within
the totality of the evidence adduced by the prosecution and the defence. D

By way of post-script, I need to say something about the separation of trials within the
present context.

The English courts, while aware of the prejudice an accused may suffer, are resistant to
separate trials to ensure protection for one accused and maximum freedom to defend himself
to the other accused. In E R v Varley (supra at 522h - j ), Kilner Brown J said:
'The other ground put forward was that the Judge wrongly exercised his discretion by
refusing to order separate trials. We recognise that there may well be occasions where there
has been a successful application to cross-examine a co-defendant on his convictions and the
trial Judge, in his duty to ensure a fair trial, F may properly exercise a discretion to order
separate trials. We have in mind the situation where the effect of such cross-examination is
such as to create such undue prejudice that a fair trial is impossible. But this is not such a
case. The truth of the matter is that this was a case where two experienced criminals
metaphorically cut each other's throats in the course of their respective defences. If separate
trials had been ordered, one or other or both might have succeeded in G preventing a just
result. This ground of appeal is rejected and the appeal against the conviction is dismissed.'

Separation of trials as a mechanism to avoid undue prejudice to one or the other of the
accused was not argued before me - neither Mr Pothier nor Mr Snyman applied for a
separation of trials. Insofar as the separation of trials is a matter within my discretion, I am
mindful of the fact that it has been held that 'it is H expedient that persons charged with the
same offence should be tried together' (R v Bagas (supra at 441F)), and that
'in a case where each of the accused seeks to cast the blame on the other, there is much to
be said for the view that it is in the interests of justice that they should be tried together to
enable the I Court to have all the evidence before deciding the disputed question as to who is
the guilty person'.

(R v Nzuzu and Another 1952 (4) SA 377 (A) at 380G; see also R v Mfuduka and Another
1960 (4) SA 770 (C) at 774B.)

In view of the foregoing, I made the following ruling: J


2002 (1) SACR p336
(i) An accused who gives evidence against any other accused may be A required to answer
any question tending to show that he has been convicted of any offence other than the
offences with which he is charged.
(ii) Cross-examination as to the details of any such conviction will not be permitted. B

C
S v M 2002 (2) SACR 411 (SCA)
2002 (2) SACR p411

Citation 2002 (2) SACR 411 (SCA)

Case No 397/01

Court Supreme Court Of Appeal

Judge Harms JA, Brand JAand Heher AJA

Heard May 22, 2002

Judgment May 31, 2002

Counsel M J Madondo for the appellant.


R B Mdutyana for the respondent.

Annotations Link to Case Annotations

[zFNz]Flynote : Sleutelwoorde
Evidence - Admissibility - Evidence as to sexual experience of any female complainant in
offence of sexual B nature - Section 227(2) of Criminal Procedure Act 51 of 1977 aimed at
protecting complainants from questions which go merely to credit and no more - If proposed
questions merely seek to establish that complainant has had sexual experience with other men
to whom she was not married presiding officer will exclude evidence - Questions going
simply to C credit will seldom be allowed - If questions are relevant to issue in trial they are
likely to be admitted.
Evidence - Admissibility - Evidence as to sexual experience of any female complainant in
offence of sexual nature - Even in absence of specific statutory prescriptions, it is proper of
court to consider following in judging admissibility of evidence under s 227(2) of D Criminal
Procedure Act 51 of 1977: (a) interests of justice; (b) society's interest in encouraging
reporting of sexual assault offences; (c) whether there is reasonable prospect that evidence
will assist in arriving at just determination; (d) need to remove from fact-finding process any
discriminatory belief or bias; (e) risk that evidence E may unduly arouse sentiments of
prejudice, sympathy or hostility; (f) potential prejudice to complainant's personal dignity and
right of privacy; (g) right of complainant and of every individual to personal security and to
full protection and benefit of law; (h) any other factor that presiding officer considers relevant
- Court should grant application to adduce evidence about previous sexual experience or
conduct of complainant if it is satisfied F that such evidence or questioning: (a) relates to
specific instance of sexual activity relevant to fact in issue; (b) is likely to rebut evidence
previously adduced by prosecution; (c) is likely to explain presence of semen or source of
pregnancy or disease or any injury to complainant where it is relevant to fact in issue; (d) is
not substantially G
2002 (2) SACR p412
outweighed by potential prejudice to complainant's personal dignity and right to A privacy; or
(e) is fundamental to accused's defence.
Evidence - Admissibility - Evidence illegally obtained - Court has discretion to exclude
evidence improperly obtained - Evidence obtained in manner that violates any right in Bill of
Rights must be excluded if admission of evidence would render trial unfair or otherwise be
detrimental to administration of justice - Real evidence which is procured by illegal or
improper means is generally more B readily admitted than evidence so obtained which
depends upon say-so of witness - Reason is that it usually possesses objective reliability -
Real evidence is object which, upon proper identification, becomes, of itself, evidence (such
as knife, photograph, voice recording, letter or even appearance of witness in witness-box). C
Appeal - Application for remittal to trial court for hearing of further evidence - Section 316 of
Criminal Procedure Act 51 of 1977 doesn't authorise application for remittal from Provincial
Division to magistrate's court - Section relates to applications for leave to appeal by accused
who has been convicted of offence before Superior Court - Appropriate legislation is either s
22(a) of Supreme D Court Act 59 of 1959 or s 304(2)(b) read with s 309(3) of Criminal
Procedure Act - Although s 316(3) contains codification, unamended, of common law
requirements for adducing evidence on appeal or on remittal, law applicable to application is
common law.
Fundamental rights - Right to a fair trial - Right to call witnesses - Police interfering with
defence witness - Investigating E officer taking statement from witness to be called by
accused in re-opened case and attempting to get witness to withdraw or alter statement made
in application for remittal to hear new evidence - Overall conduct of investigating officer
towards witness representing gross and reprehensible departure from standards of F fairness
which common law recognises and Constitution of the Republic of South Africa Act 108 of
1996 guarantees to accused person - Freedom of witnesses from interference, whatever side
they take, is keystone in temple of justice - Police, above all, have to preserve its integrity as
their own function will become frustrated by its violation.
[zHNz]Headnote : Kopnota

It is clear that s 227(2) of the Criminal Procedure Act 51 of 1977 was aimed primarily at
protecting complainants from cross-examination G as to credit, from questions which go
merely to credit and no more. The result is that generally speaking, if the proposed questions
merely seek to establish that the complainant has had sexual experience with other men to
whom she was not married, so as to suggest that for that reason she ought not to be believed
under oath, the presiding officer H will exclude the evidence. Questions of this sort going
simply to credit will seldom be allowed. On the other hand, if the questions are relevant to an
issue in the trial in the light of the way the case is being run, for instance relevant to the issue
of consent, as opposed merely to credit, they are likely to be admitted, because to exclude a I
relevant question on an issue in the trial, as the trial is being run, will usually mean that the
court is prevented from hearing something which, if it did hear it, might cause it to change its
mind about the evidence given by the complainant. But, this is very far from laying down any
hard and fast rule. Inevitably in this situation, as in so many similar situations in the law,
there is a grey area which exists between the two types of relevance, namely relevance to
credit and relevance to an issue in the case. On one hand J
2002 (2) SACR p413

evidence of sexual promiscuity may be so strong or so closely contemporaneous in time to A


the event in issue as to come near to, or indeed to reach the border between mere credit and
an issue in the case. Conversely, the relevance of the evidence to an issue in the case may be
so slight as to lead the Court to the conclusion that it is far from satisfied that the exclusion of
the evidence would be unfair to the accused. (Paragraph [17] at 423f - 424d .)
Even in the absence of specific statutory prescriptions, it would be proper of a court to
consider the following in judging the B admissibility of evidence under s 227(2): (a) the
interests of justice, including the right of the accused to make a full answer and defence; (b)
society's interest in encouraging the reporting of sexual assault offences; (c) whether there is
a reasonable prospect that the evidence will assist in arriving at a just determination in the
case; (d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e)C the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or
hostility; (f) the potential prejudice to the complainant's personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the full
protection and benefit of the law; (h) any other factor that the presiding officer considers
relevant. A court should grant an application to adduce evidence of or D put questions about
previous sexual experience or conduct of a complainant if it is satisfied that such evidence or
questioning: (a) relates to a specific instance of sexual activity relevant to a fact in issue; (b)
is likely to rebut evidence previously adduced by the prosecution; (c) is likely to explain the
presence of semen or the source of pregnancy or disease or any injury to the complainant
where it is relevant to a fact in issue; E (d) is not substantially outweighed by its potential
prejudice to the complainant's personal dignity and right to privacy; or (e) is fundamental to
the accused's defence. (Paragraph [17] at 424g - 425b and 425e - h .)

A court has a discretion to exclude evidence improperly obtained. In the words of s 35(3) of
the Constitution of the Republic of South Africa Act 108 of 1996, evidence obtained in a
manner that violates any right in the Bill of Rights must be excluded if the admission of that
F evidence would render the trial unfair or otherwise be detrimental to the administration of
justice. Real evidence which is procured by illegal or improper means is generally more
readily admitted than evidence so obtained which depends upon the say-so of a witness, the
reason being that it usually possesses an objective reliability. It does not 'conscript the
accused against himself' in the manner of a G confessional statement. Real evidence is an
object which, upon proper identification, becomes, of itself, evidence (such as a knife,
photograph, voice recording, letter or even the appearance of a witness in the witness-box).
(Paragraphs [30] and [31] at 431g - 432d .)

The appellant had been charged in a regional court with raping his six-year-old daughter
during 1989. He was convicted and appealed against that conviction to a Provincial Division.
At the appeal he also H applied to lead further evidence, being two further witnesses. One
witness, N, would testify that he had had a sexual relationship with the complainant and the
other, K, that the complainant had admitted to being influenced by her mother and
grandmother to incriminate the accused. The Court ordered that the matter be referred back to
the magistrate to hear the further evidence, having merely noted that it I had read the
application and was satisfied that it complied with s 316(3) of the Criminal Procedure Act 51
of 1977. After the regional court had heard the further evidence, the appellant was again
convicted. An appeal to a Provincial Division having failed, he appealed further. The
appellant relied, inter alia , on certain irregularities which he alleged occurred before and
during the reopened trial. One of the irregularities J
2002 (2) SACR p414

related to the conduct of the investigating officer, Z, who had arrested N for having sexual A
intercourse with a girl under 16 on the basis of his statement relied upon in the application for
remittal. Z further attempted to induce N to change his statement. At the reopened trial the
State had further entered into evidence a letter written to N by the appellant and found in N's
possession following his arrest. The appellant further alleged that the magistrate committed
an irregularity by refusing to recall the B complainant to be cross-examined on the new
evidence.

Held , that s 316 did not authorise the relief which had been claimed in the application for
remittal. That section related to applications for leave to appeal by an accused who had been
convicted of an offence before a Superior Court. The appropriate legislation was either s
22(a) of the Supreme Court Act 59 of 1959 or s 304(2)(b) read with s 309(3) of the Criminal
Procedure C Act. Although s 316(3) contained a codification, unamended, of the common
law requirements for adducing evidence on appeal or on remittal, the law applicable to the
application was the common law. (Paragraph [14] at 419j - 420b .)

Held , further, that if the relevant considerations had been applied to the application for
remittal several matters of critical importance to the future conduct of the case surely had to
have become D apparent: (i) The evidence which K could give had been known to the
appellant at the time of the trial and no factual basis had been set out as to why she had not
been available to attend the trial. (ii) The Court had been faced with the say-so of the
appellant that N was not known to him during the trial, without any explanation as to how he
became aware of the witness's existence. His mere word had not been E sufficient to satisfy
the first leg of the test which required an applicant to set out allegations from which an
appearance of truth may be derived. (iii) The contemplated evidence of K was entirely neutral
to the issue of whether the appellant was the person who raped the complainant. (iv) The
proposed evidence of N that he and the complainant had engaged in a sexual relationship in
the years 1993 to F 1996 had no bearing on whether the appellant raped the complainant in
1989. (v) The purpose of adducing the evidence of N could only have been to attack the
credibility or character of the complainant. (Paragraph [17] at 421c - 422e .)

Held , further, that, according to the common law, the accused may not lead evidence of the
complainant's acts of misconduct with other men unless those acts had a relevance to an issue
other than by way of character, but such acts could be put to her in G cross-examination,
since they may be relevant to her credibility. Such evidence would usually be irrelevant to the
substantive issues confronting the Court; but not always. (Paragraph [17] at 422c - d .)

Held , accordingly, that the Court necessarily had to have experienced difficulty in allowing
the application to reopen to in order to call N. But the position would have become even
clearer if the
H Court
had considered s 227 of the Criminal Procedure Act. (Paragraph [17] at 422e .)

Held , further, the overall conduct of the investigating officer towards N represented a gross
and reprehensible departure from the standards of fairness which the common law recognised
and the Constitution of the Republic of South Africa Act 108 of 1996 guaranteed to an
accused person. The conduct of the policeman left little doubt I that the arrest of N, lawful
though it may have been, had been a stratagem in the process of intimidating him with the
object of procuring at least a retraction of his statement. The freedom of witnesses from
interference, whatever side they took, was a keystone in the temple of justice. Without it the
structure would disintegrate. The police, above all, had to preserve its integrity, as their own J
2002 (2) SACR p415

function would become frustrated by its violation. The degree of undermining of the witness
which occurred, if one were to assume that A his evidence had been material to the fate of the
prosecution, was such as would, in the absence of very strong countervailing features,
substantially nullify the appellant's right to a fair trial by its severe violation of his right to
adduce and challenge evidence. (Paragraphs [28] and [29] at 430d - f and 430j - 431b .)

Held , however, the magistrate did not refer to the statement made by N after his arrest or the
contradictions between it and the B statement in the remittal application. His finding that N
was a deliberate liar, set up to pull a red herring across the record, derived from problems
with his evidence unrelated to Z's machinations. This was also the approach adopted by the
Court a quo . The two previous courts had been justified in the approach which they had
adopted. (Paragraph [29] at 431b - d .) C

Held , further, that there was a dearth of evidence explaining how the State came into
possession of the letter. That it had been obtained in violation of a constitutional right of the
witness was, in the circumstances, no more than speculation. The letter could be classified as
real evidence of a documentary nature. (Paragraph [30] at 432a - b .)

Held , further, that the letter had been identified as having been written by the appellant. It
had been produced and admissible as D an object for examination by the magistrate in order
to establish that it provided the origin of the evidence given by the witness, irrespective of the
truth of its contents. It predated any threat by Z and owed nothing to it. Its reliability had been
beyond question. There could not have been the slightest doubt that it contained an attempt
by the appellant to suborn the witness and that it had been the very E genesis of his witness
statement and subsequent evidence. Its value as evidential material in the context of this case
had been substantial. No privilege attached to the communication or its possession by the
witness. The constitutional rights of the appellant could not conceivably have been infringed
no matter how it came into possession of the authorities. By sending the letter the appellant
had exposed it to the vagaries of fortune with the inherent risk that it F would fall into (what
he would have regarded) as the wrong hands or that the addressee would disclose its contents
to the authorities. That it had been improperly obtained from the third party did not, in the
circumstances of the case, bear adversely on the fairness of the trial of the appellant. Insofar
as there existed a residual common-law power in the court to exercise a discretion to exclude
evidence improperly obtained, the facts to underpin such an exercise were absent. The G
letter was admissible. The letter's admission destroyed the credibility of the witness and
reflected badly on the appellant. (Paragraph [31] at 432c - j .)

Held , further, that the magistrate had found that the witness had been so plainly dishonest
that it had been unnecessary to trouble the complainant further and the Court a quo agreed. It
followed that there had been no need to recall the complainant for H further cross-
examination. The record fully justified that finding. (Paragraph [32] at 433c - d .)
[zCAz]Cases Considered

Annotations

Reported cases

Key v Attorney-General, Cape Provincial Division and Another 1996 (2) SACR 113 (CC)
(1996 (4) I SA 187; 1996 (6) BCLR 788): dictum in paras [11] - [13] applied

Kuruma, Son of Kaniu v Reginam [1955] 1 All ER 236 (PC): referred to


Lawrie v Muir 1950 SC (J) 19: referred to

Madumise v Motorvoertuigassuransiefonds 1983 (4) SA 207 (O): compared

R v Funderburk 90 Cr App R 466: applied J


2002 (2) SACR p416

R v Holford [2001] 1 NZLR 385 (CA): compared A

R v Jacoy (1988) 38 CRR 290: referred to

R v Katz and Another 1946 AD 71: applied

R v Manda 1951 (3) SA 158 (A): compared

R v Matthews and Others 1960 (1) SA 752 (A): dictum at 758A - B applied

R v Viola [1982] 3 All ER 73 (CA): dictum at 77 applied

S v Dampies 1999 (1) SACR 598 (O) : applied B

S v Felthun 1999 (1) SACR 481 (SCA) : referred to

S v Hammer and Others 1994 (2) SACR 496 (C) : applied

S v M 1970 (3) SA 20 (RA): compared

S v M 2000 (2) SACR 474 (N) : order confirmed

S v Mangcola and Others 1987 (1) SA 507 (C): compared

S v Mkhize 1999 (2) SACR 632 (W) : referred to C

S v Motloutsi 1996 (1) SA 584 (C): applied

S v Mushimba en Andere 1977 (2) SA 829 (A): applied

S v N 1988 (3) SA 450 (A): dictum at 458E - 459A applied

S v Naidoo and Another 1998 (1) SACR 479 (N) : applied

S v Nofomela 1992 (1) SACR 277 (A) : applied

S v Ramalope 1995 (1) SACR 616 (A) : referred to D

S v Venter 1990 (2) SACR 291 (NC) : applied.


[zSTz]Statutes Considered
Statutes

The Criminal Procedure Act 51 of 1977, ss 227, 304(2), 309(3) and 316(3): see Juta's
Statutes of South Africa 2001 vol 1 at 1-319, 1-336, 1-338 and 1-341 E

The Constitution of the Republic of South Africa Act 108 of 1996, s 35(3): see Juta's Statutes
of South Africa 2001 vol 5 at 1-149

The Supreme Court Act 59 of 1959, s 22(a) : see Juta's Statutes of South Africa 2001 vol 1 at
1-88. F
[zCIz]Case Information

Appeal from a decision in the Natal Provincial Division (Nicholson J and Theron J), reported
at 2000 (2) SACR 474. The facts appear from the reasons for judgment.

M J Madondo for the appellant.

R B Mdutyana for the respondent. G

In addition to the authorites cites by the Court, counsel for the parties referred to the
following:

S v Hassim 1972 (1) SA 200 (N)

S v M 1999 (2) SACR 548 (SCA)

S v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A)

S v Mofokeng 1962 (3) SA 551 (A) at 557 H

S v Moodie 1961 (4) SA 752 (A)

S v Nkata and Others 1990 (4) SA 250 (A) at 257E - F

S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A) at 375H - 377C

S v Soci 1998 (2) SACR 275 (E)I

S v Tuge 1966 (4) SA 565 (A) at 568F - G

S v Xaba 1983 (3) SA 717 (A) at 728D, 736A - B.

Cur adv vult .

Postea (May 31). J


2002 (2) SACR p417
[zJDz]Judgment
Heher AJA:

[1] The appellant, a trade union organiser, aged 36, was tried in May 1997 before a regional
magistrate for the rape of his A six-year-old daughter during 1989. He was convicted and
sentenced to ten years' imprisonment. He appealed to the Natal Provincial Division of the
High Court, applying at the same time for the remittal of the case for the hearing of two
further witnesses for the defence. The application succeeded in April 1998. B

[2] In January 1999 the trial reopened. Both witnesses eventually testified. An application by
the appellant's counsel for the recall of the complainant for further cross-examination was
refused by the magistrate. He convicted the appellant as before and imposed the same
sentence. C

[3] The Natal Provincial Division dismissed a further appeal but granted leave to appeal to
this Court. (The judgment of the Court a quo is reported sub nom S v M at 2000 (2) SACR
474.) D

[4] This appeal concerns alleged irregularities and the merits of the conviction. Before
discussing the nature of the irregularities and the circumstances in which they arose, it will
conduce to a better understanding if I summarise the evidence as it stood when the
application to reopen was granted. E

[5] For the State, the witnesses had been the complainant, the complainant's maternal
grandmother (Mrs Mbatha) and a district surgeon. The appellant and his sisters Zanele and
Siphiwe Myeni testified for the defence.

[6] The complainant was 13 years old when she gave her evidence in 1997. She told the
Court that during 1989 she stayed with her father and her aunt Zanele. Her parents were
divorced. Her mother lived in F Johannesburg. She and her aunt shared a bed. Every night her
father would come and take her, often half asleep, to his own room. There he would have
sexual intercourse with her. She, not having an understanding of what was happening, did not
protest although she suffered initial bleeding and severe pain. She estimated the period of G
such abuse at 'more or less six months'. She claimed that she complained several times to her
aunt Zanele. This occurred from a few weeks after the abuse started. During 1995 the
complainant wrote a letter to her grandmother which contained allegations against the
appellant. According to the complainant 'when my granny read the H letter she also cried and
I also cried. Then my granny told my elder aunt. Then my granny did not know how to tell
my mother and she was scared to tell my mother, so it just kept quiet like that.' During the
school holidays of 1996 the complainant saw an advertisement on television about Child
Line. She phoned its number and told a lady that she had been raped and that she did not
know how to tell her mother. An I immediate call was made to the grandmother (whose
telephone number the complainant had furnished). Eventually the complainant's mother was
informed. A charge was laid against the appellant. On 31 July 1996 the complainant was
examined by the district surgeon of her home district. J
2002 (2) SACR p418

HEHER AJA

[7] The complainant's grandmother confirmed that the complainant had resided with the
appellant during 1989. She identified A the letter received by her from the complainant in
December 1995 when the complainant was in std 5. She decided not to contact the
complainant's mother who lived far away because she was not sure what her reaction would
be. The witness also testified about an incident in 1994 when the complainant, who was
visiting her, became ill. She noticed something amiss with her genitalia and examined the B
complainant. Her evidence was consistent with the contents of the letter which the
complainant wrote to the grandmother and suggests that this incident may have provoked the
letter. It is significant that the incident and the letter preceded the laying of a charge by a
considerable time. C

[8] The evidence of the district surgeon played an important role in the conclusion of the trial
court and on appeal. At the time of his examination of the complainant a history was
furnished of sexual assaults on more than ten occasions. He conducted an examination that
was painful for the complainant. She had no hymen. He found a chronic irritation of the
vaginal walls and hypertrophy (enlargement) due to D overgrowth of tissue of the lateral wall
of the right labia minora, a condition usually attributable to persistent trauma to the same
area, which could have been caused by a penis or sexual abuse. With such an injury
intercourse would be painful each time it occurred. He said that he was unaware of any
sexually transferable disease which could have E caused the condition. Pelvic tissue heals
easily. Accordingly, he found it difficult to estimate how long the complainant might have
been exposed to abuse or when in relation to his examination that might have occurred. It was
possible that it could have happened as long ago as 1989. F

[9] The appellant denied any sexual abuse of the complainant by him although he did not
dispute, in general terms, that it had taken place; he was very fond of the complainant and
would not have abused her. Asked why the complainant should make such allegations, he
gave three reasons: first, his separation from the complainant's mother in 1984 which caused
friction between their respective families; secondly, G in August 1995 he had called the
complainant and told her he was making preparations to pay lobola for one Orella Sithole
with whom he was then in love, which caused an angry reaction from the complainant. This
was the first sign of a change for the worse in her attitude towards him. He told the
complainant he was planning to marry in September 1997 and H she, as a result, went to stay
with her grandmother. Thirdly, the grandmother harped on the break-up of the marriage
whenever they encountered each other. The appellant alleged that the complainant told him
that she was influenced by her mother and grandmother to lay the charge. That, he said, was
why he had earlier referred to the friction I between the families.

The remittal proceedings

[10] Because I have reached the conclusion that inadequate consideration was given to the
remittal application and, in consequence, a J
2002 (2) SACR p419

HEHER AJA

lengthy and unnecessary prolongation of the trial resulted, it is advisable to refer at some
length to those proceedings. A In doing so the fate of this appeal will also become clearer.

[11] The appellant gave notice that an application would be made at the hearing of the first
appeal in terms of s 316(3) of the Criminal Procedure Act 51 of 1977 for the setting aside of
the conviction and sentence and the remittal of the matter to the regional B magistrate to hear
the evidence of Siphamandla Ngema and Eli Khumbuza.

[12] In his founding affidavit the appellant stated that he had been unaware during his trial
that the complainant had a boyfriend. When that came to his notice after he was sentenced the
appellant made C arrangements to contact the boyfriend (Ngema). Ngema duly made an
affidavit in which he stated that he and the complainant used to have sexual intercourse. The
appellant also attached an affidavit by Ms Khumbuza, in which she confirmed that the
complainant had tearfully admitted that she was influenced to incriminate him by her mother
and grandmother. He stated that Ngema was not known to him until after the D trial and
Khumbuza was not available to give evidence at it.

[13] Ngema deposed to an affidavit which was used in support of the application, in which he
said:
'1. I am the student doing std 9 at Gudu High School , Nqutu district. I was born on 28
April 1979. E
2. I know the complainant Lungile Myeni and his father Johannes Myeni since 1993.
3. In June 1993 when the schools were closed for winter holidays I saw Lungile Myeni at
Mondlo Township and I started to proposed her and we fell in love the same month. F
4. At that stage Lungile Myeni was not staying in the Mondlo Township but she was
staying at
Lakeside Oak Street
, Vryheid. She used to come to Mondlo Township during the week-ends and holidays.
5. In 1993 I had sexual intercourse with Lungile Myeni once in 1993. She came to my
home during the absence of my grandmother and my sister who were staying with me. G
6. I continued to have sexual intercourse with Lungile Myeni at my home in 1994, 1995,
1996 until she was taken away by her mother to Johannesburg in 1996.
7. I cannot say how many occasions I had sexual intercourse with Lungile Myeni in 1994,
1995, 1996 but it was at intervals of about three months.
8. I was contacted by Mandla Mtambo who is a student at Gudu High School that the
attorneys for Johannes Myeni wanted to take this H affidavit from me and that I should meet
Mr Mkhize at Vryheid magistrate's court on 30 October 1997.'

[14] Whether the State opposed the application is not clear. Probably it did not. The Judges
who granted the order (Jappie J and Moodley AJ) contented themselves with the briefest of
reasons, noting that they had read the application and were satisfied that the I affidavit
complied with s 316(3). (The Court a quo also seems to have regarded that section as setting
out the applicable law.) In fact s 316 did not authorise the relief which was claimed. That
section relates to applications for leave to appeal by an accused who has been convicted of an
offence before a J
2002 (2) SACR p420

HEHER AJA

Superior Court. The appropriate legislation was either s 22(a) of the Supreme A Court Act 59
of 1959 or s 304(2)(b) read with s 309(3) of the Criminal Procedure Act: S v Venter 1990 (2)
SACR 291 (NC) at 294c - d . Although s 316(3) contains a codification, unamended, of the
common law requirements for adducing evidence on appeal or on remittal (S v Nofomela
1992 (1) SACR 277 (A) at 282f - h , S v Dampies 1999 (1) SACR 598 (O) , S v Venter
(supra at B 295d - g ) the law applicable to the application was the common law, to which
reference will be made below.

[15] The failure of the Court which heard the application to furnish proper reasons had three
consequences. First, the Court did not undertake the practical exercise of applying the law to
the facts, which might have illuminated the error in placing reliance on s 316. C Secondly,
the magistrate was left in the dark as to what, in the eyes of the Court, the relevance was of
the new evidence and why the Court deemed it to be relevant. Thirdly, and most important,
the Court would have been obliged to spell out its reasons for being satisfied that the
appellant had indeed made out a case in terms of the applicable law, an D exercise which
would probably have dispelled any satisfaction.

[16] As to the power of the Court to remit in order to hear further evidence, Corbett JA said
in S v N 1988 (3) SA 450 (A) at 458E - 459A:
'It is a power which the Court exercises only in exceptional cases for: E
''It is clearly not in the interests of the administration of justice that issues of fact, once
judicially investigated and pronounced upon, should lightly be reopened and amplified. And
there is always the possibility, such is human frailty, that an accused, having seen where the
shoe pinches, might tend to shape evidence to meet the difficulty.'' F

(Per Holmes JA in S v De Jager 1965 (2) SA 612 (A) at 613B.) The possibility of the
fabrication of testimony after conviction is an ever present danger in such matters (see R v
Van Heerden and Another 1956 (1) SA 366 (A) at 372H - 373A; S v Nkala 1964 (1) SA 493
(A) at 497H; S v Zondi 1968 (2) SA 653 (A) at 655F). For these reasons this Court has in a
long series of decisions laid down certain basic requirements which must be satisfied before
an application for the G re-opening of a case and its remittal for the hearing of further
evidence can succeed. These were summarised by Holmes JA in De Jager's case supra (at
613C - D) 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. H
(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.''

In an appropriate case this Court has the power to relax strict compliance with the requisite of
a ''reasonably sufficient explanation'' (see (a) above), but it is only in rare instances that this
power will be exercised (S v Njaba 1966 (3) SA 140 (A) at 143H). I

A study of the reported decisions of this Court on the subject over the past 40 years shows
that in the vast majority of cases relief has been refused: and that where relief has been
granted the evidence in question has related to a single critical issue in the case (as to which
see eg R v Carr 1949 (2) SA 693 (A); R v Jantjies 1958 (2) SA 273 (A); S v Nkala (supra )
and S v Njaba (supra )).' J
2002 (2) SACR p421

HEHER AJA

In S v Nofomela (supra at 284i ) Nienaber JA, dealing in an analogous context, A with


evidential material which a Court might properly make the subject of a remittal, pointed out:
'One is here dealing with relevance. ''Relevancy is based upon a blend of logic and
experience lying outside the law'' (per Schreiner JA in R v Matthews and Others 1960 (1) SA
752 (A) at 758A - B). Relevance can never be reduced to hard and fast rules and some
allowance must be made for unforeseen and extraordinary cases.' B

[17] If the considerations mentioned by the learned Judges of Appeal in S v N and S v


Nofomela had been applied to the application several matters of critical importance to the
future conduct of the case must surely have become apparent: C
(1) The evidence which Khumbuza could give had been known to the appellant at the time
of the trial. In fact he had given evidence under cross-examination which related to the very
incident which was the subject of her affidavit. (The Court which heard the application was,
of course, the appeal Court and it could not properly have decided the application without
studying the evidence which had been led at the D trial.)
(2) The appellant did not set out any factual basis for his allegation that Khumbuza was
not available to attend the trial. Nor did she confirm her non-availability. (In fact, when she
eventually gave evidence, she admitted that she had been available but attributed the E failure
to call her as a witness to a conscious decision by the appellant's attorney.)
(3) The Court was faced with the say-so of the appellant that the witness Ngema was not
known to him during the trial, without any explanation as to how he became aware of the
witness's existence. His mere word was, however, not sufficient to satisfy the first leg of the F
test which requires an applicant to set out allegations from which an appearance of truth may
be derived. (In fact, the explanation given in evidence by Ngema for his contact with the
appellant while latter was in custody pending appeal was suspect in the extreme and could
hardly have satisfied the requirement which had been set up at the application G stage.) The
Judges were, it seems, unconscious of the frailty of which this Court warned in S v N (supra
).
(4) The contemplated evidence of Khumbuza was entirely neutral to the issue of whether
the appellant was the person who raped the H complainant. (As the evidence and the
judgment of the magistrate revealed, that forced intercourse had been inflicted on the
complainant was not in issue by the end of the first trial.) She stated that the complainant had
been told by her mother and grandmother to lay the charge. So one would expect in the case
of a child. She attached no nuance to the allegations. That the complainant said that she was
told I the appellant was not her natural father could just as well have meant that mother and
grandmother regarded his assault on his daughter as unnatural. The averment was, in any
event, irrelevant to the issue.
(5) The proposed evidence of Ngema that he and the complainant J
2002 (2) SACR p422

HEHER AJA
had engaged in a sexual relationship in the years 1993 to 1996 had no A bearing on
whether the appellant raped the complainant in 1989. On the facts available from the appeal
record, casual consensual intercourse of the kind deposed to by Ngema was wholly
inconsistent with the physical consequences of sexual abuse identified by the district surgeon.
B

(Points (4) and (5) illustrate that the application failed to demonstrate the material relevance
of the evidence of either witness to the identification of the appellant as the assailant.)
(6) The purpose of adducing the evidence of Ngema could only be to attack the credibility
or character of the complainant. However, as Du Toit et al Commentary on the Criminal
Procedure Act at C 24-100A, note, 'conventional wisdom' in relation to the common law is
that
'the accused may not lead evidence of the complainant's acts of misconduct with other
men (see R v Adamstein 1937 CPD 331) unless those acts have a relevance to an issue other
than by way of character, but such acts may be put to her in cross-examination, D since they
may be relevant to her credibility. It is true that such evidence will usually be irrelevant to the
substantive issues confronting the Court; but not always.'
Faced with that statement of the common law, the Court must necessarily have
experienced difficulty in allowing the application to E reopen to in order to call Ngema. But
the position would have become even clearer if the Court had considered s 227 of the
Criminal Procedure Act, which, since 1989, has provided that:
'(2) Evidence as to sexual intercourse by, or any sexual experience of any female against
or in connection with whom any offence of a sexual nature is alleged to have been
committed, shall not be F adduced, and such female shall not be questioned regarding such
sexual intercourse or sexual experience, except with the leave of the Court, which leave shall
not be granted unless the Court is satisfied that such evidence or questioning is relevant:
Provided that such evidence may be adduced and such female may be so questioned in
respect of the offence which is being tried. G
(3) Before an application for leave contemplated in ss (2) is heard, the Court shall direct
that any person whose presence is not necessary may not be present at the proceedings, and
the Court may direct that a female referred to in ss (2) may not be present.'
The members of this Court are not aware of any instance where H s 227(2) has been
applied in this country. It seems likely that it is more honoured in the breach than in the
observance. Since it requires of the courts that it be applied in the manner in which it was no
doubt intended, namely to militate against offensive, hostile and irrelevant questioning of
complainants without thereby diminishing a full and just investigation of the real issues in the
case, it may be as well to make I certain comments concerning the proper application of the
section.
So-called 'rapeshield' legislation, as s 227(2) is, has been passed in many jurisdictions,
inter alia the , the , , and the Australian J
2002 (2) SACR p423

HEHER AJA
States. Ligertwood Australian Evidence 3rd ed at 165 summarises what A appears to be
the common background to such enactments:
'Cross-examination is normally permitted on grounds of relevance, either to the issues in
the case, or to determining the witness's general creditworthiness. Courts have allowed cross-
examination of a victim regarding past sexual history on both grounds. It is worth noting at
the outset that, where the cross-examination is of relevance to the issues in the case, matters
B raised in cross-examination may be taken further by the defence and made the subject of
separate and perhaps contradictory evidence called as part of the accused's case. On the other
hand, matters of general creditworthiness are regarded as collateral matters which cannot be
pursued beyond cross-examination. The witness's answer is final. C The difficulty is in
determining when sexual experiences are relevant, either to the issues or to the general
creditworthiness of the victim. Controversy has arisen because (male) common law Judges
have allegedly been all too willing to allow the (female) victim's previous sexual character to
be revealed, most often in cross-examination. In consequence, victims wanting to prosecute
their assailants have had to be prepared to subject themselves to the ordeal, D at both
committal and trial, of a long and searching cross-examination on their sexual experiences
and attitudes. Needless to say, the potential humiliation and embarrassment of this ordeal,
whereby the victim is effectively also put on trial to defend her moral character, has
discouraged victims from prosecuting their assailants. This controversy has led to legislative
protection against gratuitous E revelation of a victim's character.'
Section 227(2) is in substantially the same terms as s 2(1) of the English Sexual Offences
(Amendment) Act 1976. In R v Viola [1982] 3 All ER 73 (CA) at 77 Lord Lane CJ said of s
2:
'Having said that, [that it is wrong to speak of the exercise of a discretion in the context]
when one considers the F purpose which lay behind the passing of the 1976 Act, as
expounded by Roskill LJ [in R v Mills (1979) 68 Cr App R 327], it is clear that it was aimed
primarily at protecting complainants from cross-examination as to credit, from questions
which went merely to credit and no more. The result is that generally speaking (I use these
words advisedly, of course there will always be exceptions) if the G proposed questions
merely seek to establish that the complainant has had sexual experience with other men to
whom she was not married, so as to suggest that for that reason she ought not to be believed
under oath, the Judge will exclude the evidence. In the present climate of opinion a jury is
unlikely to be influenced by such considerations, nor should it be influenced. In other words
questions of this sort going H simply to credit will seldom be allowed. That is borne out by
the cases to which we have been referred, not only those which I have cited, but other
unreported cases which have been before this Court, to which perhaps it is not necessary to
make reference. On the other hand, if the questions are relevant to an issue in the trial in the
light of the way the case is being run, for instance relevant to the issue of I consent, as
opposed merely to credit, they are likely to be admitted, because to exclude a relevant
question on an issue in the trial as the trial is being run will usually mean that the jury are
prevented from hearing something which, if they did hear it, might cause them to change
their minds about the evidence given by the complainant. But, I repeat, we are very far from
laying down any hard and fast rule. J
2002 (2) SACR p424

HEHER AJA
Inevitably in this situation, as in so many similar situations in the law, there is a grey area
which exists between the A two types of relevance, namely relevance to credit and relevance
to an issue in the case. On one hand evidence of sexual promiscuity may be so strong or so
closely contemporaneous in time to the event in issue as to come near to, or indeed to reach
the border between mere credit and an issue in the case. Conversely, the relevance of the
evidence to an issue in the case may be so slight as to lead the Judge to the B conclusion that
he is far from satisfied that the exclusion of the evidence or the question from the
consideration of the jury would be unfair to the defendant.'
(Although the restriction on the Judge giving leave to adduce evidence or ask questions
only if he is satisfied that it would be unfair to the defendant to refuse to allow the evidence
to be adduced C or the question to be asked, is not included in our Act as it was in s 2(2) of
the English statute, such a consideration is, no doubt, a matter to be taken into account in the
exercise of a proper judgment on s 227(2).)
The dictum of
Lord Lane
applies with equal force to s 227(2). D
With regard to the learned Judge's reference to a 'grey-area', it has subsequently been
stressed that although the dividing line between issue and credibility is often extremely fine,
the distinction needs to be kept in mind in order to preserve clarity of thought and accuracy of
judgment: R v Funderburk 90 Cr App R 466; Archbold Criminal Pleading Evidence and
Practice (1998) in E para 20 - 43; Phipson on Evidence 15th ed in para 19 - 40. There was
apparently reason to doubt whether s 2 achieved its aims. See Louise Ellison Cross-
examination in Rape Trials 1998 CLR 605. The section has now been replaced by ss 41 - 3 of
the Youth Justice and Criminal Evidence Act 1999, which further limits the right to adduce
evidence and cross-examine F complainant in sexual cases. See Phipson on Evidence (op cit
at para 19 - 29 et seq ).
In Canada, s 276 of the Criminal Code sets out specific aspects which a court is obliged to
take into account in determining admissibility of evidence relating to sexual activity of a
complainant. See the discussion in Martin's Annual Criminal Code 2000 at G CC/510 et seq .
These aspects are:
'(a) the interests of justice, including the right of the accused to make a full answer and
defence;
(b) society's interest in encouraging the reporting of sexual assault offences; H
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a
just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or
hostility in the jury; I
(f) the potential prejudice to the complainant's personal dignity and right of privacy;
(g) the right of the complainant and of every individual to personal security and to the
full protection and benefit of the law;
(h) any other factor that the Judge, provincial court Judge or justice considers relevant.'
J
2002 (2) SACR p425

HEHER AJA
These are matters which would mutatis mutandis be proper for a South African court to
consider in judging the A admissibility of evidence under s 227(2) in our constitutional
dispensation, even in the absence of specific statutory prescriptions. It can be noted that if the
trial court had applied tests of this nature (over and above a plain enquiry as to relevance) the
evidence of Ngema could hardly have been admitted. B
The South African Law Commission published Discussion Paper 102 relating to Project
107, 'Sexual Offences: Process and Procedure' in December 2001. Chapter 32 concerns
'Evidence of the previous sexual history of the complainant' and surveys the state of law
directed to similar ends as those of s 227 in many other C jurisdictions. In their evaluation the
researchers conclude (at 501) that s 227 has to some extent failed of its purpose and that '(t)he
unfettered discretion given to presiding officers to determine the admissibility of such
evidence on the broad and subjective basis of relevance seems to be a large part of the
problem'. Accordingly, they propose that s 227 be amended 'to clearly delineate the
circumstances D under which evidence of previous sexual history may be adduced'. In the
draft amendment a subsection is included which provides that a court shall grant an
application to adduce evidence of or put questions about previous sexual experience or
conduct of a complainant if it is satisfied that such evidence or questioning: E
'(a) relates to a specific instance of sexual activity relevant to a fact in issue;
(b) is likely to rebut evidence previously adduced by the prosecution;
(c) is likely to explain the presence of semen or the source of pregnancy or disease or
any injury to the complainant where it is relevant to a fact in issue; or F
(d) is not substantially outweighed by its potential prejudice to the complainant's
personal dignity and right to privacy; or
(e) is fundamental to the accused's defence.'
Whether or not the proposal becomes in due course the subject of G legislation, the
matters identified must, even in the present state of the law, be regarded as considerations of
great importance in arriving at a properly-considered judgment on admissibility in terms of s
227(2). The proposed evidence of Ngema would have not been admitted after due regard to
any of these considerations either. H
It follows that I agree with Du Toit et al (op cit at 24-100B) that in deciding whether to
allow evidence of such a nature,
'several . . . policy concerns which militate against admissibility . . . must be taken to the
balance. These include the need to protect witnesses from hurtful, harassing and humiliating
attacks, the recognition of a person's right to privacy in the highly I sensitive area of sexuality
and the realisation that the exposure of their sexual history may deter many victims of sexual
offences from testifying.'
One is here dealing with an issue which requires of a trial court great sensitivity and about
which strongly conflicting views may J
2002 (2) SACR p426

HEHER AJA
be held. See, for example, J Temkin 'Sexual History Evidence - The A Ravishment of
Section 2' [1993] Crim LR 3. There is a responsibility on practitioners and the courts to
uphold the spirit of the legislation. In the case with which we are concerned, all appreciation
of the statutory requirements and niceties seems to have escaped the trial court. The evidence
of Ngema served no purpose other than the impermissible one of destroying the
complainant's credit. B
But, unless Ngema's proposed evidence could be said to be relevant in the sense of
tending of itself or in combination with other facts to prove or disprove the identity of the
assailant, R v Katz and Another 1946 AD 71 at 78, having regard to logic and common sense,
R v Matthews (supra, loc C cit ), the trial court would not have been empowered to admit it
and the application for remittal had to fail. That it was not relevant in that sense was clear
from a reading of Ngema's affidavit with the evidence which had already been led.

[18] For all the reasons set out in the preceding paragraph the matter should have been
stopped in its tracks at the application stage. D

[19] The fact is that the trial was reopened. Section 227(2) has, however, an even more
fundamental effect on what happened subsequently. The evidence which the defence
proposed to adduce from Ngema could only be admitted with the leave of the trial court if
that E court was satisfied of its relevance. However, when the trial was reopened no
application was made to the magistrate under the section and the evidence was led without
demur or apparent consideration of its relevance. Perhaps he felt bound by the remittal, but
the decision in terms of s 227 was his alone, notwithstanding any implication which F may
have flowed from the order or remittal.

Having regard to the force of the prohibition, its purpose, the public policy involved, and the
manifest absence of relevance, I consider that the proper approach at this stage would be to
rule that the whole of Ngema's testimony was wrongly taken and should be regarded as struck
from the record. That effectively disposes of a G substantial part of the appeal. Since,
however, this point has been reached before even touching upon the reasoning of the two
previous courts and the arguments addressed to us in the appeal, it seems fair to give
consideration to those aspects. H

The irregularities relied on in the appeal


[20] I propose to deal first with the alleged irregularities which occurred before and during
the reopened trial. When the defence led the evidence of Ngema at the reopened trial the
witness testified that on 11 August 1998 he had been arrested at school by Captain Zwane,
the investigating officer in the rape case, apparently on a charge of I having sexual
intercourse with the complainant, a girl under the age of 16 years. Zwane showed Ngema a
copy of his statement which had been used in support of the application and asked him to
identify it, which the witness did. Zwane then told the headmaster that bail would be fixed at
R4 000. He J
2002 (2) SACR p427

HEHER AJA

took the witness to the police station. There he told him that the statement which he had made
had been wrong and A instructed him to write out another statement. He threatened the
witness with 40 years in custody if he did not comply. He did not tell the witness how he was
to change the statement. Ngema refused. Zwane then took him to his grandmother. He
informed her that he was arresting the witness for the offence of having intercourse with the
girl under the age of 14 years (sic ). He instructed her to come to the B police station before
the witness made a statement. She did so. Zwane once again (apparently in her presence)
ordered Ngema to make a statement, telling him that he had asked the complainant about the
witness and she had denied knowing him. Furthermore, he threatened that if Ngema did not
want to tell the truth he would lock him up and C thereby prevent him from writing his school
examinations. Zwane asked his grandmother whether she had R10 000 for bail. When she
replied that she did not, the witness decided to change his statement. Zwane then took down
the new statement. The second statement, Ngema said in evidence, was false while the first
contained the truth. The statements were handed in as exhibits. D

[21] Ngema's evidence concerning the genesis of the second statement was not challenged by
the prosecutor in cross-examination. Captain Zwane was not called in rebuttal.

[22] During the course of the evidence of Ngema the prosecutor asked, 'Is it correct, Mr
Ngema, that you received a letter from the E accused?' He received a positive reply from the
witness. The prosecutor produced the letter, but, before he could show it to the witness, the
appellant's counsel intervened:
'No, your worship, before the letter is handed [in], may the court make a ruling whether the
letter that was obtained in the F circumstances sketched by the accused (sic ) is admissible as
evidence. . . . Whether the letter that was obtained when the IO had arrested the defence
witness is admissible as evidence. . . .'

Before taking up the objection, the magistrate allowed the witness to identify the letter and
received it as an exhibit. Counsel, asked to clarify the grounds of his objection, said: G
'My problem, your worship, I have outlined it, whether on the evidence that has been
sketched by the defence witness . . . that the defence witness was arrested and interrogated by
Zwane, and hence certain exhibits and statements were obtained from him, whether those
statements and exhibits are admissible.'

The record continues: H


'Mr Mkhize: It is my submission, your worship, that what Captain Zwane did was grossly
irregular and any evidence that was obtained from the defence witness was obtained illegally,
and that evidence should not be placed on record . . . (indistinct)
Court: Yes. I cannot see how the evidence was obtained irregularly because the Captain
investigated the matter where a person was I admitting that he had sexual intercourse with a
girl under the age of the prescribed age and he then investigated that matter, and during the
course of that investigation certain information came to light. I do not think it is inadmissible.
The letter is allowed.
Mr Mkhize: Your Worship, I'm not aware of any case that was investigated.
Court: Well . . . (intervenes) J
2002 (2) SACR p428

HEHER AJA
Mr Mkhize: In fact my instruction was that the complainant had not laid any charge against
. . . (intervenes) A
Court: Well, he investigated what the - he investigated what is prima facie an offence, not
so?
Mr Mkhize: But my understanding is that if . . . (intervenes)
Court: Yes, sorry, Mr Mkhize. I received a statement by this witness, your client, the
defence witness, that an offence prima facie was committed. He investigated that matter, and
he obtained B certain information during the course of that investigation. Whether the witness
was charged or not is irrelevant at this stage.
Mr Mkhize: But I . . . (intervenes)
Court: At this stage the policeman merely investigated a prima facie case against him. C
Mr Mkhize: I . . . (intervenes)
Court: He has not yet been charged. If he was charged, thereafter the evidence can then
become inadmissible at a subsequent trial, but as far as this witness is concerned, it is not
inadmissible because it was obtained during an investigation by the investigating officer.
Mr Mkhize: But I hold a different view of that. The defence witness was a witness for the
defence. D
Court: Yes.
Mr Mkhize: And if the State or the policeman wanted to interview any witnesses that the
defence has disclosed to the State, rules of justice requires that the defence must be alerted
and if the defence requires that they should be present, they should be present during the
interrogation of their witnesses. My - I don't think that it was - there E was a prima case case
or prima facie . . . (intervenes)
Court: I don't know what he said in his statement. I assume that what he said in his
statement that was before the High Court was that he admitted that he had sexual intercourse
with the complainant.
Mr Mkhize: Your worship . . . (intervenes) F
Court: At that stage - I haven't - no statement was handed in here as far as I can remember.
Mr Mkhize: Yes, they were handed in.
Court: Was it handed in?
Mr Mkhize: Yes
Court: Not in this trial. Not in this trial. G
Mr Mkhize: Your Worship, last time . . . (intervenes)
Court: I don't have any statement to that effect.
Mr Mkhize: I handed in the application . . . (indistinct) that was done in the High Court.
Court: I haven't got it here. Sorry. It was not formally . . . (intervenes)
Mr Mkhize: And on the . . . (intervenes) H
Court: It was not handed to me. It was not handed to me. It was not formally handed to me.
It does not form part of these proceedings before me.
Mr Mkhize: As the Court pleases, Your Worship. May I hand in the . . . (intervenes)
Court: Well, no, Mr Mkhize, you're now trying to confuse the issues. I'm now dealing with
your objection. Your objection is over-ruled. I
Mr Mkhize: As the Court pleases.
Court: You can then, if you want to - or you should have, when you led this witness'
evidence, handed in all those statements because it was obtained during the - the objection is
over-ruled. Yes, continue, please.
Prosecutor: Read - can you please read the contents of that statement into the record? J
2002 (2) SACR p429

HEHER AJA
Court: Can I just make one further point clear to you, Mr Mkhize, and that is that the
admissibility of this document pertains to your A client, or otherwise, not to the witness. How
the policeman obtained this evidence is irrelevant at this stage. Okay. Yes, very well. Can
you continue, please? Read it into the record.'

[23] The ruling on the admissibility of the letter was made somewhat summarily. It was
provisional and could have been reversed by the magistrate if good reason were adduced later
in the trial. Unfortunately, the defence counsel (aside from the incorrect statement B that the
evidence had shown that 'certain exhibits' had been obtained from the witness by Zwane in
the course of interrogation) made no attempt to place any facts before the magistrate
concerning the procurement of the letter by the State, whether by agreement with the
prosecutor or in re-examination of the witness. C

[24] After the conclusion of the evidence of the witness Ngema, the record (which was
reconstructed, the relevant tape having gone astray) reflects that the appellant's counsel made
an application that the complainant be re-called for further cross-examination. He apparently
used as grounds for this application the new evidence which D had been led since the
complainant had testified and in respect of which no questions had been put to her during her
original evidence, and the need to clarify various issues which had arisen during the course of
the additional evidence. There is some indication that he intended to cross-examine generally.
Be that as it may, the magistrate refused the application for the surprising reason that 'nothing
new E has come to light'.

[25] The evidence of Ms Khumbuza given at the reopened trial does not require careful
analysis. In essence she confirmed the substance of her affidavit. The words which she
attributed to the complainant when the appellant asked her why she had laid a charge against
him were: 'My mother and my grandmother said I must lay a F charge against you, and you
are not my father.' The magistrate found, rightly, in the view of the Court a quo , and in my
assessment, that the evidence of Khumbuza was entirely neutral. It is therefore unnecessary
to say more about it in the context of this appeal. G

[26] The evidence of the witness Ngema was, by contrast, anything but neutral, albeit that it
was also irrelevant. In substance it reflected his affidavit, although it contained some
discrepancies which are not of consequence to the appeal. After the magistrate overruled his
counsel's objections to the admissibility of the letter received by the witness from the
accused, the accused was H cross-examined by the prosecutor. The circumstances of its
receipt and its content were explored.
[27] It was the submission of appellant's counsel that the trial of his client was unfair by
reason of one or a combination of the following irregularities: I
1. The arrest, detention and interrogation of Ngema by the investigating officer and the
coercion on him to change his statement.
2. The admission by the trial court of the statement obtained by the investigating officer
from the defence witness as a result of threats.
3. The admission by the trial court of the letter found in the J
2002 (2) SACR p430

HEHER AJA
possession of the witness obtained during or in consequence of an A illegal interrogation.
4. The refusal of the magistrate to allow the complainant to be recalled for further cross-
examination at the close of new evidence.

The effect of the irregularities was, counsel submitted, mortal to the State case. B S v
Ramalope 1995 (1) SACR 616 (A) at 621g - 622b . Should the Court find that the
irregularities were insufficient to vitiate the proceedings, the evidence untainted by the
irregularities fell short of proving guilt beyond a reasonable doubt. There was accordingly a
failure of justice. S v Felthun 1999 (1) SACR 481 (SCA) at 485i - 486a and the authorities
there cited. C

[28] It will be convenient to deal with the first two grounds of irregularity together. The
overall conduct of the investigating officer towards the witness Ngema represented a gross
and reprehensible departure from the standards of fairness which the common law recognises
and the the Constitution of the Republic of South Africa Act 108 of 1996 guarantees to an
accused person. The conduct of the D policeman leaves little doubt that the arrest of the
witness, lawful though it may have been, was a stratagem in the process of intimidating him
with the object of procuring at least a retraction of his statement. The freedom of witnesses
from interference, whatever side they may take, is a keystone in the temple of justice.
Without it the structure would disintegrate. The police, above all, should preserve E its
integrity as their own function would become frustrated by its violation. No authority is
needed for this insistence. Indeed there seems to be no case directly in point in this country,
but some guidance may be obtained from R v Manda 1951 (3) SA 158 (A), a much weaker
case on the facts than the present. Schreiner JA said (at 166H - 167C): F
'At the preparatory examination the appellant was asked if he wished to have any witnesses
subpoenaed under the provisions of s 244(2) of Act 31 of 1917. He gave the names of three
witnesses and in the case of two of these the police then took statements from them which
were available to the Crown for cross-examination. This should not have been done. It is of
course in general the duty of the police G to collect all the available evidence that may throw
light on the commission of an offence and this Court would certainly not wish to raise
obstacles to the due fulfilment of that duty. But statements should not be taken from persons
whose ability to give relevant evidence is only discovered as a result of an application by an
accused person for the assistance provided by s 244(2). That section is an H important aid in
the proper administration of justice and accused persons should not be deterred from
resorting to it at the stage of the preparatory examination through fear that their witnesses
will go into the box handicapped by their having given statements to the police which may
not necessarily contain full and accurate accounts of the evidence that they are prepared to
give.' I
See, also, Madumise v Motorvoertuigassuransiefonds 1983 (4) SA 207 (O) and S v Mangcola
and Others 1987 (1) SA 507 (C).

[29] The behaviour of Captain Zwane in this case appears to have been so at odds with his
duty that one must express the hope that the authorities will embark on an appropriate
enquiry if they have not J
2002 (2) SACR p431

HEHER AJA

already done so. The degree of undermining of the witness which A occurred, if one were to
assume that his evidence was material to the fate of the prosecution, was such as would, in
the absence of very strong countervailing features, substantially nullify the accused's right to
a fair trial by its severe violation of his right to adduce and challenge evidence. In the light of
this very obvious irregularity the magistrate was surprisingly muted. However, the magistrate
did not again refer to the statement or the contradictions between it and the B statement in the
remittal application. His finding that Ngema was a deliberate liar, set up to pull a red herring
across the record, derives from problems with his evidence unrelated to Captain Zwane's
machinations (save in relation to the letter which the witness received from the accused and
to which I refer below). This was also the C approach adopted by the Court a quo . The two
previous courts were justified in the approach which they adopted.

[30] Turning to the third irregularity, no foundation was laid by counsel in support of his
objection to the admission of the letter received by Ngema from the accused. Albeit that the
magistrate ruled, D somewhat summarily, that the letter was obtained in the course of an
investigation into the offence of a statutory rape and was therefore admissible, his ruling was
interlocutory and always open to challenge by the defence after laying a proper basis. But, as
I have pointed out before, defence counsel did not seek to lead the witness in E re-
examination on the circumstances in which the State obtained possession of the letter and the
ruling stood. The magistrate did not refer to the matter in his judgment. He did (with
justification) use the letter to establish the origin of Ngema's witness statement. This was
instrumental in fragmenting the witness's credibility, and, if the letter was improperly
admitted, must have had a substantial negative F impact on the fairness of the trial. The Court
a quo gave no separate attention to the admissibility of the letter. It seems to have assumed
that it was tainted by the improper interrogation. After a review of the authorities the Court
concluded that it had a discretion to exclude evidence improperly obtained, referring to s
35(5) of the G Constitution, Lawrie v Muir 1950 SC (J) 19 at 26, Kuruma, Son of Kaniu v
Reginam [1955] 1 All ER 236 (PC) at 239, S v Mushimba en Andere 1977 (2) SA 829 (A) at
840B, S v Hammer and Others 1994 (2) SACR 496 (C) , S v Motloutsi 1996 (1) SA 584 (C)
and S v Naidoo and Another 1998 (1) SACR 479 (N) . To these may be added S v Mkhize
1999 (2) SACR 632 (W) and a thought-provoking H article 'Exclusion of evidence illegally
or improperly obtained' by G L Davies in (2002) 76 Australian Law Journal 170. There is no
doubt that such a discretion exists based, at common law upon a proper balancing of the
competing interests so clearly identified in S v Hammer (supra ), and under the Constitution,
upon the question of whether admission would or would not offend the I constitutional
guarantee of the right to a trial conducted in accordance with notions of basic fairness and
justice inherent in civilised systems of criminal administration. Key v Attorney-General, Cape
Provincial Division and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6)
BCLR 788) at paras [11] - [13]. In the words of s 35(3), J
2002 (2) SACR p432

HEHER AJA

evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if
the A admission of that evidence would render the trial unfair or otherwise be detrimental to
the administration of justice. I have already referred to the dearth of evidence explaining how
the State came into possession of the letter. That it was obtained in violation of a
constitutional right of the witness is, in the circumstances, no more than speculation. B

[31] Real evidence which is procured by illegal or improper means is generally more readily
admitted than evidence so obtained which depends upon the say-so of a witness (see, for
example, R v Jacoy (1988) 38 CRR 290 at 298) the reason being that it usually possesses an
objective reliability. It does not 'conscript the accused against himself' in the manner of a
confessional statement C (R v Holford [2001] 1 NZLR 385 (CA) at 390). The letter in this
case can be classified as real evidence of a documentary nature (notwithstanding the doubts
which the Court a quo expressed). Real evidence is an object which, upon proper
identification, becomes, of itself, evidence (such as a knife, photograph, voice recording,
letter or even the appearance of a witness D in the witness-box). Schmidt Bewysreg 4th ed at
326, Hoffmann & Zeffertt The South African Law of Evidence 4th ed at 404, Cross & Tapper
on Evidence 8th ed at 48. The letter was identified as having been written by the appellant. It
was produced and admissible as an object for examination by the magistrate in order E to
establish that it provided the origin of the evidence given by the witness, irrespective of the
truth of its contents. It predated the threat and owed nothing to it. Its reliability was beyond
question. There cannot be the slightest doubt that it contained an attempt by the appellant to
suborn the witness and that it was the very genesis of his witness statement and subsequent
evidence. Its value as evidential material in the context of this case was substantial. No
privilege F attached to the communication or its possession by the witness. The constitutional
rights of the appellant could not conceivably have been infringed no matter how it came into
possession of the authorities. By sending the letter the appellant exposed it to the vagaries of
fortune with the inherent risk that it would fall into (what he would have G regarded) as the
wrong hands or that the addressee would disclose its contents to the authorities. Whatever
steps may be justified against the police arising from the manner of its procurement, that it
was improperly obtained from the third party does not in the circumstances of this case bear
adversely on the fairness of the trial of the H appellant. Insofar as there exists a residual
common law power in the court to exercise a discretion to exclude evidence improperly
obtained, the facts to underpin such an exercise are absent. More particularly, one is unable to
find that any conduct of Captain Zwane was consciously directed to finding or obtaining
possession of the letter. Nor can it be suggested that the admission of the letter provides tacit
approval I or encouragement of improper conduct by the police. I find therefore that the
Court a quo erred in excluding reliance on the letter sent by the appellant to Ngema. Its
admission destroys the credibility of the witness and reflects badly on the appellant.

[32] The final ground of irregularity relied upon relates to the refusal of J
2002 (2) SACR p433

HEHER AJA

the magistrate to recall the complainant for further cross-examination. The evidence of
Ngema related to matters peculiarly A within the knowledge of the witness and the
complainant. In most circumstances there could be no question of disbelieving the witness or
finding his evidence false unless the salient features of his testimony had been put to the
complainant and rebutted by her in a manner so satisfactory as to enable the court to make a
finding beyond a reasonable doubt. Compare S v M 1970 (3) SA 20 (RA), where B the facts
were comparable to those of the present case and the Court held that a failure of justice had
occurred and, finding that it would not be proper to remit the case for a second time to the
magistrate, quashed the conviction. The distinguishing feature of that case is, however, the
finding (at 24A) that the story told by the crucial C witness called in the remitted proceedings
did not appear on the record to be so inherently improbable as to justify its rejection out of
hand as false beyond a reasonable doubt. In the present case the magistrate did find that the
witness was so plainly dishonest that it was unnecessary to trouble the complainant further
and the Court a quo agreed. It followed that there was no need to recall the complainant for
further cross-examination. The record fully justifies D that finding. I also agree with the
conclusion of the Court a quo that there was not the remotest possibility that the complainant
would have agreed that she had a relationship with the witness. Indeed the witness himself
conceded as much. An alternative approach would have been to apply s 227(2) of the
Criminal Procedure E Act: leave to recall the complainant for questioning about Ngema's
allegations could not have been granted unless the court was satisfied that the questioning
would be relevant; the court could not have been satisfied on that matter and the application
to recall the complainant had to fail - even if the complainant had been recalled and had
admitted the relationship with Ngema it would have taken the accused's case no F further; if
she had denied it, there was no way of testing her veracity since she could not be cross-
examined on her denial. It follows that the magistrate did not misdirect himself in refusing to
recall the witness. G

[33] One other consideration bears mention in relation to the possible recall of the witness.
The magistrate was there to ensure that justice was done in the broadest possible sense. That
involved not only fairness towards the accused but also towards witnesses, especially a
vulnerable witness like the complainant. When her recall was sought it would, I think, have
been a proper consideration to weigh in the balance that the complainant should not be
subjected a second time to H the indignity of having her private life laid bare unless there was
a real prospect that the interests of justice would be served by her recall.

Failure of justice?I

[34] One may now consider whether a failure of justice resulted from the one irregularity
which has been identified.

[35] As I have been at pains to show, all the new evidence was, at the time of the first appeal,
demonstrably irrelevant to the real issue. During the second stage of the trial nothing was
placed before the magistrate J
2002 (2) SACR p434

HEHER AJA

which enhanced its value. That stage was discrete in the sense that it followed the original
conviction and, being irrelevant, A the evidence stood independent of the foundation of the
conviction. In these circumstances a substantial irregularity in relation to the second stage
would only in the most exceptional circumstances influence the preceding stage and thereby
effect a failure of justice. No such circumstances arose in this instance. B
[36] In any event, the evidence of Ngema was flawed by very serious improbabilities. He told
of occasional consensual intercourse, but, even allowing for the extreme youth of the
complainant, such occurrences were inconsistent with the trauma to her private parts which
was described by the district surgeon. If consensual intercourse C was not the cause then the
injuries must have been present before or in the course of such relationship as Ngema may
have had with the complainant. But her physical condition, both as observed by her
grandmother and in the sensitiveness of her organs on examination by Dr Gumbi, was wholly
inimical to willing participation by either party. D The age of the complainant in 1993
militates strongly against the likelihood of an acceptance by her of the proposal of love just as
it renders far-fetched an objection by the complainant that she was already engaged in a 'love
affair'. The explanation offered by Ngema for discussing his affair with the accused in jail
was also fanciful. There was no apparent connection between the detention of the appellant E
and the affair (if it occurred) and, even if there had been, it is unlikely that the witness would
have thought it necessary or expedient to disclose it in the interests of the appellant to whom
he owed nothing. One is bound to conclude that no true explanation was furnished for the
contact made between the appellant and the witness. F The witness was also shown directly
to have been dishonest concerning whether his relationship with the complainant extended
into 1996.

[37] The improbabilities to which I have referred are in their totality only consistent with an
untruthful witness. The result is that, even in the absence of the letter, the witness added no
strength to the case of the appellant. With the assistance of the letter the G already strong
suspicion that he was procured by the appellant to give false evidence becomes a certainty.
Accordingly, no failure of justice flowed from Captain Zwane's improper interference with
the defence witness.

The merits of the convictionH

[38] On the facts of this case there is no room for bona fide error or an over-vivid
imagination. The rape of the complainant is a given. The only question relates to the identity
of the assailant. Likewise the necessary implication from the facts is that the complainant
either spoke the truth or deliberately and falsely I implicated her father in the crime. The
magistrate had the benefit of observing the complainant. He found her to be both intelligent
and honest. The record reflects the correctness of that impression. While no onus rests upon
an accused person in respect of the motive of a complainant, the appellant in this case did
offer three reasons for the enmity of his daughter. None of them bears examination. There J
2002 (2) SACR p435

HEHER AJA

is no indication of vindictiveness in her testimony, indeed it appears from the evidence of


Khumbuza that the complainant, confronted A by her father, was openly distressed at having
to accuse him. It is so that, taken on its own, no grounds existed for the rejection of the
appellant's evidence. But the right approach was not to take it in isolation but rather to
examine it in the context of the whole case in order to determine whether it could stand.
Judged in this light, the appellant has failed to establish that the courts below erred in their B
conclusion that the case had been proved beyond a reasonable doubt.

[39] The appeal is accordingly dismissed.


Harms JA and Brand JA concurred. C

Appellant's Attorneys: A M Moleko & Co , Pietermaritzburg; N W Pha- latsi & Partners ,


Bloemfontein . D

S v JONES 2004 (1) SACR 420 (C)


2004 (1) SACR p420

Citation 2004 (1) SACR 420 (C)

Case No Saaknr SS17/2001

Court Kaapse Provinsiale Afdeling

Judge Van Reenen R

Heard February 18, 2002; February 20, 2002

Judgment April 29, 2002

Counsel A G Caiger namens die beskuldigde, in opdrag van die Regshulpraad.


H Meyer namens die Staat.

Annotations Link to Case Annotations

F
[zFNz]Flynote : Sleutelwoorde
Getuienis - Deskundige getuienis - Opinies in teksboeke G uitgespreek - Nie toelaatbare
getuienis tensy deur deskundige onder eed bevestig - Mistasting vir hof om tydens
verkragting-verhoor op opinie in teksboek oor 'mishandelde-vrou-sindroom' staat te maak,
om ongerymdhede in klaagster se getuienis te verklaar. H
Getuienis - Toelaatbaarheid - Soortgelykte feite getuienis - Van pleging van misdaad anders
as misdaad waarvan beskuldigde aangekla is - Geen algehele verbod teen toelaatbaarheid van
sodanige getuienis nie - Toelaatbaar indien regtens relevant - Getuienis van ander misdaad
egter nie toelaatbaar om geneigdheid van beskuldigde tot kriminele optrede te bewys nie. I
Getuienis - Genoegsaamheid van getuienis - Versigtigheidsreël - Geslagsmisdade - Reël van
toepassing waar klaagster enkel getuie is en eienaardighede in haar getuienis smeek vir
toepassing van reël - Versigtigheidsreël vereis dat hof bedag wees op faktore wat onkritiese
aanvaarding van getuienis riskant maak - Versigtigheidsreël vereis nie dat getuienis J
2004 (1) SACR p421
kritiekloos moet wees nie, maar slegs dat dit substansieel bevredigend A ten opsigte van
wesenlike aspekte moet wees of gekorroboreer word - Verder moet daar nie slegs lippediens
aan reël getoon word nie - Dit moet uit hantering van getuienis blyk dat dit inderdaad deur
hof toegepas is.
Verhoor - Algemeen - Wyse waarop beskuldigde en klaagster aangespreek word - Beide met
soorgelyke formaliteit aangespreek te word - Gebruik om B klaagster, maar nie beskuldigde
nie, op voornaam aan te spreek, kan moontlik as toegeneentheid teenoor klaagster
geïnterpreteer word.
[zHNz]Headnote : Kopnota

Omdat die menings wat in teksboeke uitgespreek word nie getuienis per se is nie, en op
hoorsê neerkom, kan 'n hof , tensy die korrektheid daarvan deur 'n deskundige onder eed
bevestig word, nie daarvan gebruik maak nie. Bygevolg is dit 'n ernstige mistasting C vir 'n
hof om tydens 'n verkragting-verhoor te steun op teksboek-geskrifte oor 'mishandelde-vrou-
sindroom', om ongerymdhede in die klaagster se getuienis, wat daarop dui dat sy toegestem
het tot geslagsgemeenskap met die beskuldigde, te verklaar, en op daardie basis die
uitwerking wat die ongerymdhede op haar geloofwaardigheid het uit die oog te verloor.
Hierdie situasie kan egter onderskei word van dié waar 'n hof 'n teksboek aanhaal om die
misdaad van verkragting in 'n D sosiale konteks te plaas, en nie om die beskuldigde en die
klaagster in 'n bepaalde sielkundige kategorie te plaas nie. (Op 425e - g en 427b - d .)

Daar is nie 'n algehele verbod teen die aanbieding in 'n strafsaak van getuienis dat 'n
beskuldigde skuldig is aan 'n misdryf ander dan díé waarvoor hy aangekla staan nie. Dit is
wel toelaatbaar indien E dit regtens relevant is. Terwyl dit nie dienstig is om 'n geslote lys te
gee van wanneer sodanige getuienis regtens relevant mag wees, al dan nie, staan een ding
soos 'n paal bo water. Dit kan nie aangebied word ter bewys van 'n geneigdheid tot kriminele
optrede nie. (Op 426b - d .)

Wanneer, tydens 'n verkragting-verhoor, die klaagster 'n enkel getuie is, en daar
eienaardighede in haar getuienis is wat daarvoor smeek, vind die versigtigheidsreël ten
opsigte van die getuienis van klaagsters in geslagsmisdade toepassing. Die versigtigheidsreël
F vereis dat 'n hof bedag moet wees op faktore wat die onkritiese aanvaarding van getuienis
riskant maak, byvoorbeeld die verbeeldingrykheid en die beïnvloedbaarheid van kinders en
dat dit deurentyd voor oë gehou moet word. Die versigtigheidsreël vereis egter nie dat
getuienis kritiekloos moet wees nie, maar slegs dat dit substansieel bevredigend ten opsigte
van wesenlike aspekte moet wees of G gekorroboreer word. Verder moet daar nie slegs
lippediens aan die reël getoon word nie. Dit moet uit die hantering van die getuienis blyk dat
dit inderdaad deur die hof toegepas is. (Op 427f - h .)

Die hof en die aanklaer moet hulle daarvan weerhou om 'n klaagster op haar voornaam aan te
spreek, wanneer dieselfde behandeling nie die beskuldigde toeval nie. Klaers en beskuldigdes
behoort op 'n soortgelyke formele basis aangespreek te word. Die gebruik van voorname H
deur die Staat en die hof mag geïnterpreteer word as 'n aanduiding van toegeneentheid
teenoor die persoon wat aldus aangespreek word. (Op 428g - i .)
[zFNz]Flynote : Sleutelwoorde
Evidence - Expert evidence - Opinions expressed in I textbooks - Not admissible as evidence
unless confirmed under oath by expert - Misdirection for court to rely on opinion in textbook
about 'battered wife syndrome' in order to explain inconsistencies in evidence of complainant
during rape trial.
Evidence - Admissibility - Similar fact evidence - Of commission of offence other than
offence with which accused charged - No absolute prohibition against J
2004 (1) SACR p422
reception of such evidence - Admitted if legally relevant - However, evidence of other
offence A not admissible to prove propensity on part of accused towards criminal conduct.
Evidence - Adequacy of proof - Cautionary rule - Sexual offences - Rule applicable where
complainant single witness and unusual features exist in her evidence which cry out for its
application - Rule requires that court must be aware of factors which render uncritical
acceptance of evidence B hazardous - Cautionary rule doesn't require that evidence be free of
all criticism - It requires only that evidence must be substantially satisfactory in relation to
material aspects or corroborated - Moreover, rule shouldn't be afforded mere lip service - It
must appear from way in which evidence is assessed that court indeed applied rule.
Trial - Generally - Manner of addressing accused and complainant - Both to be addressed C
with similar formality - Addressing complainant, but not accused, by first name possibly
being interpreted as sympathy towards complainant.
[zHNz]Headnote : Kopnota

Because opinions expressed in textbooks are not evidence per se , and amount to hearsay, a
court may not make use of them unless their correctness is confirmed by an expert under
oath. Accordingly, it is a serious misdirection for a court during a rape trial to rely on D
textbook writing about 'battered wife syndrome' to explain inconsistencies in the evidence of
a complainant, which suggest that she had consensual sexual intercourse with the accused,
and on that basis to disregard the impact which the inconsistencies have on her credibility.
This situation may be distinguished, however, from that in which a court quotes a textbook
for the purpose of placing the crime of rape in its social context, rather than of placing the
accused or the complainant in a particular psychological category. (At E 425e - g and 427b -
d .)

There is no absolute prohibition against the reception during a criminal trial of evidence that
the accused is guilty of a crime other than that with which he is charged. Such evidence is
admissible if it is legally relevant. Although a finite list of cases where such evidence may or
may not be relevant cannot be furnished, one proposition is abundantly clear: Evidence of
other offences cannot be presented to prove a propensity on the part of the accused towards F
criminal conduct. (At 426b - d .)

Where, during a rape trial, the complainant is a single witness and there are unusual features
in her evidence which cry out for it, the cautionary rule applicable to the evidence of
complainants in sexual offences must be applied. The cautionary rule requires that the court
must be aware of factors which render the uncritical acceptance of G evidence hazardous,
such as, for example, the imaginativeness and pliability of children, and the importance of
constantly bearing those characteristics in mind. The cautionary rule does not, however,
require that evidence must be free of all criticism; it requires only that the evidence must
either be substantially satisfactory in relation to material aspects, or that it must be
corroborated. Moreover, the rule should not be afforded mere lip service. It must appear from
the way in H which the evidence is assessed that the court indeed applied the rule. (At 427f -
h .)

The court and the prosecutor should refrain from addressing a complainant by her first name,
when the same familiar approach is not adopted towards the accused. Complainants and
accused should be treated with similar formality. The use of first names by the State and the I
court may be interpreted as an indication of sympathy towards the person who is thus
addressed. (At 428g - i .)
2004 (1) SACR p423
[zCAz]Cases Considered

Annotations

Gerapporteerde sake/Reported casesA

R v Solomons 1959 (2) SA 352 (A): toegepas/applied

S v Collop 1981 (1) SA 150 (A): toegepas/applied

S v F 1989 (3) SA 847 (A): toegepas/applied

S v Ganie and Others 1967 (4) SA 203 (N): toegepas/applied B

S v Green 1962 (3) SA 886 (A): toegepas/applied

S v J 1998 (1) SASV 470 (SCA) (1998 (2) SA 984): toegepas/applied

S v M 1992 (2) SASV 188 (W) : toegepas/applied

S v Van Wyk 2000 (1) SASV 45 (C) : onderskei/distinguished.


[zCIz]Case Information

Verwysing na die Hooggeregshof vir vonnis, ingevolge die Strafregwysigingswet 105 van
1997. Die feite blyk uit die redes vir uitspraak. C

A G Caiger namens die beskuldigde, in opdrag van die Regshulpraad.

H Meyer namens die Staat.

Cur adv vult.

Postea (April 29). D


[zJDz]Judgment

Van Reenen R: Die beskuldigde in hierdie saak het in die streekhof te Wynberg tereggestaan
op twee klagtes van verkragting. Dit was hom ten laste gelê dat hy op twee geleenthede, te
wete op 3 Junie 1999 en 6 Junie 1999 onderskeidelik, te of naby Parkwood, wederregtelik en
opsetlik met B J (die klaagster), 'n vroulike persoon sonder haar toestemming
geslagsgemeenskap gehad het. E

Die beskuldigde, wie op daardie stadium in persoon verskyn het - hy was vir 'n gedeelte van
die verhoor deur 'n prokureur, mnr Kessow, verteenwoordig - het onskuldig gepleit en het
verkies om sy swygreg uit te oefen. F

Nadat die Staat, sowel as die verdediging, getuienis aangebied het, is die beskuldigde skuldig
bevind, soos aangekla.

Aangesien die landdros van mening was dat omdat die beskuldigde aan twee klagtes van
verkragting skuldig bevind was 'met ander woorde omdat hy meer as een keer met die
klaagster geslagsgemeenskap gehad het, is dit dan 'n situasie wat ressorteer onder die Wet op
minimum G strawwe' het hy die verrigtinge ingevolge die bepalings van art 52 van die
Strafregwysigingswet 105 van 1997 gestaak en die beskuldigde na hierdie Hof vir vonnis
verwys omdat in die omstandighede die beskuldigde vir 'n vonnis van lewenslange
gevangenisstraf sou kwalifiseer.

Die korrektheid van die feite- en regsbasis vir daardie bevinding is bevraagtekenbaar, maar
vanweë die gevolgtrekking waartoe ek hierin H geraak het, is dit nie nodig om 'n finale
uitsluitsel daaroor te gee nie.

Alhoewel die beskuldigde aangekla was van slegs twee insidente van verkragting, naamlik op
3 Junie 1999 en 6 Junie 1999 onderskeidelik, het die klaagster tydens getuienis in hoof slegs
getuig van 'n beweerde verkragting op 3 Junie 1999, wat deur die eerste klagte gedek was,
asook 'n beweerde verkragting op 4 Junie 1999 I wat nie deur enigeen van die twee klagtes
gedek was nie. Daar is nie 'n woord gerep van die gebeure waarop die tweede klagte
betrekking gehad het nie.

Die beweerde verkragting waarop die tweede klagte betrekking het, het eers tydens
kruisondervraging van die klaagster deur die beskuldigde se J
2004 (1) SACR p424

VAN REENEN R

toentertydse prokureur na vore gekom: so ook verdere verkragtings wat op 7 Junie 1999, 8
Junie 1999 (volgens die klaagster maar nie A volgens die beskuldigde nie) en op 9 Junie 1999
sou voorgekom het.

Alhoewel die getuienis ten opsigte van die insident wat op 4 Junie 1999 sou plaasgevind het,
met groot omhaal voor die hof geplaas was en dit 'n ellelange kruisondervraging ontlok het,
skyn die feit dat getuienis gelei is van 'n misdryf waarvoor die beskuldigde nie B aangekla
was nie, nóg die landdros nóg die aanklaer nóg die beskuldigde se prokureur gepla het.

Daar is hoegenaamd geen regsbasis aangevoer vir die toelaatbaarheid van daardie getuienis
nie en geen is deur die landdros in sy uitspraak verskaf nie. C

Daar is die volgende eienaardighede aangaande die gebeure wat deur die eerste en die tweede
klagtes gedek word asook die latere gebeure wat tydens kruisondervraging ontlok was.

Eerstens, alhoewel die klaagster getuig het van slegs een geleentheid waarop sy en die
beskuldigde op 3 Junie 1999 gemeenskap sou gehad D het, het sy tydens kruisondervraging
toegegee dat sy en die beskuldigde twee keer gemeenskap gehad het, eers staande teen 'n
hangkas en daarna in die voorkamer. Al waaroor sy geredekawel het, was die volgorde
waarin dit sou gebeur het. Die beskuldigde het gesê dat dit eerste teen die kas was en later in
die voorkamer. Die klaagster het dit andersom gehad. Nog later, tydens kruisondervraging het
sy egter ontken dat hulle hoegenaamd teen die kas gemeenskap gehad het. E

Tweedens, die Sondagaand van 6 Junie 1999 was sy en haar moeder daarvan bewus dat die
beskuldigde in die omgewing was, en gevolglik was die voordeur van hulle huis gegrendel.
Op versoek van die beskuldigde het die klaagster hom sonder haar moeder se toestemming,
toegang tot F die huis verleen deur die venster op die eerste verdieping oop te maak sodat hy
heimlik deur op die afdak van protesterende bure te klim by haar kamervenster kon inkom.

Derdens, die aand van 7 Junie 1999 het die klaagster, sonder dat haar moeder daarvan bewus
was, die voordeur vir die beskuldigde oop gelos sodat hy later die aand kon binnekom en het
sy gehelp dat hy hom G agter die settee in die voorkamer kon versteek.

Vierdens, die aand van 8 Junie 1999 het die klaagster weereens die voordeur oop gelos en het
die beskuldigde ongeveer 22:00 ingekom; in die donker voorkamer gewag totdat die klaagster
se ma gaan slaap het; en is hy daarna haar kamer binnegelaat. H

Vyfdens, die aand van 9 Junie 1999 het die klaagster weereens die voordeur oop gelos en het
die beskuldigde ongeveer 10:00 die huis binnegekom.

Sesdens, daarbenewens het die klaagster op 4 Junie 1999 en 7 Junie 1999, en nadat sy na
bewering die vorige aande verkrag sou gewees het, groot gedeeltes van die dag saam met die
beskuldigde I deurgebring.

Die landdros handel nie in sy uitspraak spesifiek met die klaagster se voormelde eienaardige
optrede wat moeilik rymbaar is met die van iemand wat seksueel misbruik was nie. Wat hy
wel doen, is om 'n verklaring daarvoor te probeer vind. Op sterkte van die klaagster se
herhaalde bewerings dat sy vir die beskuldigde bang sou wees, kom die J
2004 (1) SACR p425

VAN REENEN R

landdros tot die gevolgtrekking dat hy haar gemanipuleer het en dat dit A dan die houvas was
wat hy op haar gehad het en wat haar van tyd tot tyd laat toegee het aan sy seksuele
aansprake. Daardie fenomeen word daaraan toegeskryf dat die klaagster se getuienis inpas by
die sielkundige profiel van 'n vrou wat uit 'n gewelddadige verhouding kom of besig is om
daaruit te kom. B

Omdat daar geen deskundige getuienis daaromtrent aangebied was nie, wend die landdros
hom tot deskundige menings wat in sekere teksboeke aangaande verkragting binne die
huweliksverband uitgespreek word. Die landdros kom dan tot die gevolgtrekking dat dit die
klaagster se getuienis is dat sy as gevolg van intimidasie; die geskiedenis; die gebaretaal; die
dreigemente; en veral die dreigemente om haar kinders van haar weg te neem by tye toegegee
het aan sy eise. C

Omdat ek van mening was dat die landdros onreëlmatiglik getuies van kriminele optrede aan
die kant van die beskuldigde toegelaat het waarvoor hy nie aangekla was nie; of op
ontoelaatbare deskundige menings wat in teksboeke uitgespreek was, gesteun het; en daar
twyfel was of daar aan die reëls van versigtigheid voldoen was wat betref D die getuienis van
die klaagster, en ek derhalwe nie tevrede was dat die verrigtinge ooreenkomstig die reg was
nie, is hy ingevolge die voorbehoudsbepaling tot art 52(3)(b) van Wet 105 van 1997 gevra vir
die redes waarom die beskuldigde skuldig bevind was. Om daardie rede is die saak uitgestel
na vandag en is die beskuldigde op borgtog vrygelaat. E

Die landdros het goedgunstiglik op my navrae gereageer by wyse van 'n brief gedateer 25
April, wat my eers vanoggend, ongeveer 09:15, bereik het. Die landdros se redes is die
volgende. Die landdros verdedig sy gebruikmaking van teksboeke as 'n poging om die
klaagster se getuienis te verstaan en haar ervaringsveld te interpreteer teen die agtergrond van
navorsing wat daarmee ooreenstem en vind steun vir sy F optrede in die saak S v Van Wyk
2000 (1) SASV 45 (K) , waarin Davis R die mening van 'n teksboekskrywer aangehaal het.
Daardie aanhalings, soos wat ek dit sien, het gedien om die misdaad van verkragting in 'n
sosiale konteks te plaas en nie om, soos die landdros in die onderhawige saak gedoen het, die
beskuldigde of die klaagster in 'n sielkundige kategorie met besondere patroon te plaas nie. G

Dit is die landdros se siening dat die getuienis van die gebeure van 4 Junie 1999 wel relevant
was, sonder om presies te sê wat die aard daarvan is. Dit bevestig egter my vermoede dat dit
wel 'n rol gespeel het by sy beoordeling van die saak en dat die lei daarvan vir die
beskuldigde nadelig was. H

Die landdros se verduideliking waarom hy die getuienis van die klaagster bo dié van die
beskuldigde verkies het, is alles behalwe oortuigend. Dit is duidelik dat dit grotendeels,
indien nie geheel en al nie, gebaseer is op sy persoonlike waarnemings van die optrede van
die klaagster in die hof. I

Hy sê in sy ietwat emotiewe reaksie die volgende in antwoord op sekere eienaardighede wat


aan hom uitgewys is:
'Dit is baie moeilik en amper onregverdig om nou sekere weersprekings te analiseer vanuit
'n soort leunstoel benadering. Ek maak hierdie opmerking met alle respek, maar ook met 'n
ondertoon van frustrasie wanneer dit duidelik is dat J
2004 (1) SACR p426

VAN REENEN R
persoonlike waarnemings van eerste instansie moet swig voor retrospektiewelike
bedenkinge.' A

Wat die landdros uit die oog verloor is dat die korrektheid van sy gedragsbevindinge ten
opsigte van die klaagster juis ondermyn word deur die reeds gemelde leemtes en
weersprekings in haar getuienis. Ek kan ook net byvoeg dat die landdros se redes nie spreek
van regterlike B onbetrokkenheid by die saak nie.

Daar is nie 'n algehele verbod teen die aanbieding in 'n strafsaak van getuienis dat 'n
beskuldigde skuldig is aan 'n misdryf ander dan die waarvoor hy aangekla staan nie. Dit is
wel toelaatbaar indien dit regtens relevant is. (Sien S v Green 1962 (3) SA 886 (A) te 893 -
4.) C

Terwyl dit nie dienstig is om 'n geslote lys te gee van wanneer sodanige getuienis regtens
relevant mag wees, al dan nie, staan een ding soos 'n paal bo water. Dit kan nie aangebied
word ter bewys van 'n geneigdheid tot kriminele optrede nie. (Sien S v Solomons 1959 (2) SA
352 (A) te 361H.) Die benadeling wat die toelating van die getuienis ten opsigte van die
gebeure van 4 Junie 1999 vir die beskuldigde ingehou het, word myns insiens D nie deur
enige moontlike probatiewe waarde wat dit ten opsigte van klagtes 1 en 2 mag hê
geneutraliseer nie.

Dat die getuienis van die gebeure van die nag en die aand van 4 Junie 1999 en die lang
kruisondervraging wat daaruit gevolg het, inslag by die landdros gevind het, blyk daaruit dat
hy bykans twee-en-'n-half bladsye van sy 13 bladsye lang uitspraak daaraan wy en dat hy in
die E redes wat hy verskaf het daarmee volhard dat hy reken dat volgens sy siening dit
relevant is.

Watter impak dit gehad het op die landdros se gevolgtrekking dat die beskuldigde deur sy
optrede dermate vrees by die klaagster ingeboesem het dat sy toegegee het aan sy eise, is
moeilik bepaalbaar. Dat dit wel 'n rol gespeel het, is ongetwyfeld. Behalwe vir die getuienis
ten F opsigte van die gebeure van 4 Junie 1999, is die getuienis ten opsigte van intimidasie
twyfelagtig. Indien daar op 3 Junie 1999 eers teen die hangkas gemeenskap gehou was, klink
die klaagster se bewerings aangaande haar onwilligheid ietwat hol. Watter ruimte is daar vir
intimidasie in die gebeure van 6 Junie? Die klaagster was veilig in haar ma se toegesluite
huis. Toegang kon slegs deur die G venster op die eerste verdieping verkry word. Die
klaagster verleen die beskuldigde hulp om die huis binne te kom. Waarom? Sy sê omdat die
beskuldigde na bewering vir haar die volgende sou gesê het:
'As jy nie daardie deur gaan oopmaak nie of jy laat nie vir my deur die venster kom nie, dan
gooi jy my kinders af - dan gooi ek my kinders.' H

Nie alleen maak daardie verduideliking nie sin nie, maar daar was nie enige wyse waarop die
beskuldigde sy beweerde dreigemente sou kon verwesenlik het nie. Na my mening was die
gebeure van 4 Junie 1999 nie alleen regtens irrelevant nie, maar was die beskuldigde
inderdaad I deur die toelating daarvan benadeel. Gevolglik is ek van mening dat die verhoor
van die beskuldigde nie ooreenkomstig 'notions of basic fairness and justice' geskied het nie
en dat hy nie 'n billike verhoor gehad het nie. Alhoewel dit voldoende is om die beskuldigde
op sy vryspraak geregtig te maak, is daar ook ander gronde waarom dit moet gebeur. J
2004 (1) SACR p427

VAN REENEN R

Die sluitstuk van die landdros se uitspraak is dat as gevolg van die A vrees wat die
beskuldigde by die klaagster ingeboesem het, sy toegegee het aan sy eise. Dit is duidelik
vanuit die aangebode getuienis dat haar optrede moeilik versoenbaar is met dié van iemand
wat bevrees en oninskiklik was. Alhoewel haar optrede wyse ewe versoenbaar was met dié
van iemand wat bereid was om met die beskuldigde sosiaal en andersins te verkeer, het die
landdros verkies om die verklaring van B haar optrede te vind in die mishandelde-vrou-
sindroom ('battered wife syndrome') en daarvoor steun hy op twee teksboeke wat hy
geraadpleeg het. Omdat die menings wat in teksboeke uitgespreek word nie getuienis per se
is nie (sien S v Collop 1981 (1) SA 150 (A) te 167B) kan 'n hof, tensy die korrektheid
daarvan deur 'n deskundige onder eed bevestig word, nie daarvan gebruik maak nie, omdat
dit hoorsê is. Dit is presies wat die landdros in die onderhawige C geval gedoen het. Omdat
die mishandelde-vrou-sindroom 'n verklaring vir die klaagster se inskiklike optrede verskaf
het, het die landdros nie oorweeg of haar bewerings van bevreesdheid met haar optrede
gerym het nie en indien nie, watter invloed dit op haar geloofwaardigheid gehad het. Dit is
myns insiens 'n ernstige mistasting wat die geheel D van die landdros se uitspraak deurdrenk.

Die landdros het die enigste geskilpunt in die saak korrek geïdentifiseer, naamlik of die
erkende gemeenskap op 6 Junie 1999 en 9 Junie 1999 onderskeidelik, met of sonder die
klaagster se toestemming geskied het. Wat dit aanbetref, is daar twee lynreg botsende
weergawes. Aan die Staat se kant was die enigste getuienis E dié van die klaagster en aan die
kant van die verdediging die getuienis van die beskuldigde.

Omdat die klaagster 'n enkele getuie is en omdat daar eienaardighede in haar getuienis is wat
daarvoor smeek (sien S v J 1998 (1) SASV 470 (HHA) (1998 (2) SA 984)) vind die
versigtigheidsreël in die onderhawige saak aanwending. F

Die versigtigheidsreël vereis dat 'n hof bedag moet wees op faktore wat die onkritiese
aanvaarding van getuienis riskant maak, byvoorbeeld, die verbeeldingrykheid en die
beïnvloedbaarheid van kinders en dat dit deurentyd voor oë gehou moet word. (Sien S v M
1992 (2) SASV 188 (W) te 193c - e .) Die versigtigheidsreël vereis egter nie dat getuienis
kritiekloos moet wees nie, maar slegs dat dit G substansieel bevredigend ten opsigte van
wesenlike aspekte moet wees of gekorroboreer word. (Sien S v Ganie and Others 1967 (4)
SA 203 (N) te 206H.) Verder moet daar nie slegs lippediens aan die reël getoon word nie. Dit
moet uit die hantering van die getuienis blyk dat dit inderdaad deur die hof toegepas is. (Sien
S v F 1989 (3) SA 847 (A) te 852H - 853C.) H

Daar is geen aanduidings vanuit die landdros se hantering van die getuienis in sy uitspraak
dat hy die versigtigheidsreël inderdaad toegepas het nie. Die landdros meld nie eens enige
van die reeds gemelde ses faktore wat vraagtekens laat ontstaan oor die vraag of die klaagster
se getuienis substansieel bevredigend ten opsigte van wesenlike aspekte is nie. Die landdros
handel ook nie daarmee dat I indien die klaagster dit in haar polisieverklaring gemeld het,
waarom die beskuldigde nie ten opsigte van die gebeure van 4 Junie 1999 aangekla was nie;
dat sy nie op 5 Junie 1999, toe sy gaan werk het by die Kenilworth se resiesbaan en later die
aand by haar suster gaan oornag het, enigiets gedoen het om J
2004 (1) SACR p428

VAN REENEN R

klagtes teen die beskuldigde te lê nie aangesien hy, op haar weergawe, besig was om 'n A
familiegeweldsinterdik te verbreek en hom daarvoor kon laat arresteer het indien sy
optredewyse vir haar onwelkom was; en die afwesigheid van 'n verduideliking waarom die
klaagster nie voorheen gedoen het wat sy op 9 Junie 1999 gedoen het nie, naamlik om die
beskuldigde deur B die polisie te laat arresteer.

Getoets aan die hand van waarskynlikhede en moontlikhede op grond van dit wat volgens
gangbare menslike kennis en ervaring as redelik beskou kan word, laat die klaagster se
voormelde optredes vraagtekens ontstaan aangaande die betroubaarheid van haar getuienis
wat nie deur die getuies aangespreek word nie of deur die landdros in sy uitspraak mee
gehandel word nie. C

Die landdros, eerder as om na die wese van die klaagster se getuienis te gekyk het, skyn veel
waarde te geheg het aan haar oortuigende vertoning in die hof. Dit in weerwil van getuienis
deur die beskuldigde se moeder dat dit is wat van haar verwag kon word.

Na my mening kan daar nie met die vereiste vertroue op die klaagster se getuienis gesteun
word nie en is daar nie aan die reëls van D versigtigheid deur die Staat voldoen nie en adv
Meyer vir die Staat moes inderdaad toegee dat dit die posisie is.

Daar is myns insien nie enige basis waarop die landdros die klaagster se getuienis bo dié van
die beskuldigde kon verkies het nie. Die vraag is of sy weergawe redelik moontlik waar kan
wees en nie of hy geglo moet word nie. Die landdros skyn die beskuldigde se weergawe te
verwerp het bloot omdat hy die klaagster geglo het. E
Die landdros het dit verder moeilik gevind om die beskuldigde se weergawe te aanvaar dat
die klaagster na die polisie sou gegaan het op 9 Junie 1999, omdat sy verontwaardig was
omdat daar vier kondome uit sy broeksak vroeg die oggend geval het. Ek het nie so 'n
probleem F nie. Alhoewel ek nie noodwendig die beskuldigde glo nie, kan dit tog redelik
moontlik waar wees, soos die res van sy weergawe, ten opsigte daarvan of daar toestemming
tot gemeenskap was.

In die lig van die voorgaande is ek van mening dat die beskuldigde verkeerdelik skuldig
bevind was en gevolglik word die skuldigbevinding op beide klagtes tersyde gestel en word
die beskuldigde ontslaan. G

Daar is een laaste aspek waarmee ek wil handel. Die aanklaer het tydens die lei van die
getuienis die klaagster op haar voornaam aangespreek en die landdros het ook in sy uitspraak
die aanklaer se voorbeeld gevolg. Dieselfde behandeling het nie die beskuldigde toegeval nie.
Ek is van mening dat klaers en beskuldigdes in strafsake H op 'n soortgelyke formele basis
aangespreek behoort te word. Die gebruik van voorname deur die Staat en die hof hou die
gevaar in dat dit geïnterpreteer mag word as 'n aanduiding van toegeneentheid teenoor die
persoon wat aldus aangespreek word. Ek hoop dat die Direkteur van Openbare Vervolgings
daardie siening aan aanklaers sal oordra. I

S v SAFATSA AND OTHERS 1988 (1) SA


868 (A)
1988 (1) SA p868

Citation 1988 (1) SA 868 (A)

Court Appellate Division

Judge Botha JA,Hefer JA,Smalberger JA,Boshoff AJA andM T Steyn AJA

Heard November 2, 1987

Judgment December 1, 1987

Annotations Link to Case Annotations

E
[zFNz]Flynote : Sleutelwoorde
Murder - Mens rea - Common purpose - Act of one participant in causing death of
deceased imputed as matter of law to other participants - Causal connection between act
of each participant in causing death of F deceased need not be proved.
Criminal procedure - Evidence - Witnesses - Calling, examination and refutation of -
Cross-examination of witness on privileged statement on grounds that it might assist
accused in his defence - Privilege arising G out of making statement to attorney in
course of obtaining professional legal advice - Witness refusing to waive privilege -
Relaxation of rule of privilege (assuming rule can be relaxed) arising only in context of
an exercise of judicial discretion by trial Judge - Minimum requirements to enable
discretion to be exercised enumerated.
Criminal law - Public violence - Accused convicted of both public H violence and
subversion under s 54(2) of Internal Security Act 74 of 1982 - In substance, punishable
conduct same for both offences and nature of acts constituting basis for both convictions
very similar in particular circumstances of case - Proof of one offence necessarily I
constituting proof of other offence - Court on appeal holding that considerations of
common sense and fairness dictating that accused should not be convicted of both
offences - Conviction for public violence set aside.
[zHNz]Headnote : Kopnota

The principle applicable in cases of murder where there is shown to have been a
common purpose is that the act of one participant in causing the death of the deceased
is imputed, as a matter of law, to the other J participants (provided, of course, that the
1988 (1) SA p869

A necessary mens rea is present). A causal connection between the acts of every party
to the common purpose and the death of the deceased need not be proved to sustain a
conviction of murder in respect of each of the participants.

Where in a criminal case it is sought to cross-examine a State witness on a statement


which is privileged because it was made by the witness to an attorney in the course of
obtaining professional legal advice, and such witness has refused to waive his rights to
claim the privilege, and cross-examination has been sought on the grounds that it might
assist B the accused in defending the charges against him, the question of relaxation of
the rule of privilege (assuming that the rule of privilege can be relaxed) can arise only in
the context of the exercise of a discretion by the trial Judge, based upon a consideration
of all the information relevant to the question. The mere allegation on behalf of the
accused that cross-examination may enure to his benefit, without more, cannot be
sufficient to enable the discretion of the trial Judge to come into play. Minimum
requirements would include information as to C how the statement came to be in the
possession of the legal representative of the accused; whether the legal advice sought
related to the trial itself and, if so, in what way; what the contents of the statement are
(the statement could be handed up to the trial Judge for his perusal); and in what
manner and with what prospect of success the cross-examination could avail the accused
in countering the charges against him.

Where certain accused had been convicted in a Provincial Division both D of public
violence (as a competent verdict where they had been charged with, but found not guilty
of, murder) and of subversion under s 54(2) of the Internal Security Act 74 of 1982, the
Court on appeal set aside their conviction of public violence on the grounds that it had
not been proper for the accused to have been convicted of both crimes where, in
substance, the punishable conduct had been the same for both. Not only were the acts
of the accused which constituted the basis for each of the E convictions exactly the
same, but the nature of those acts, in the particular circumstances of the case, was in
substance very similar for the purposes of either of the convictions. The causing of
'general dislocation and disorder' and the preventing or hampering of 'the maintenance
of the law and order' for the purposes of paras (a) and (e) of s 52(4) of the Act
simultaneously involved the forceful disturbance of the public peace and security and
invasion of the rights of others for the purposes of public violence. On the particular facts
of the case F in casu, proof of the former necessarily constituted proof of the latter. The
Court accordingly held that considerations of common sense and fairness dictated that
the accused ought not to have been convicted of both crimes.
[zCIz]Case Information

Appeal from convictions and sentences in the Transvaal Provincial Division (Human
AJ). The facts appear from the judgment of Botha JA.
G J Unterhalter SC (with him I Hussain ) for the appellants referred to the following
authorities: Tranter v Attorney-General and Another 1907 TS 415 at 422 - 3; R v Du
Plessis 1924 TPD 103 at 124; R v Mokoena 1932 OPD 79 at 80; R v Rose 1937 AD 467;
R v Difford 1937 AD 370 at 373; R v Cohen 1942 TPD 266 at 272; R v Steyn 1954 (1)
SA 324 (A) at 335D; R v H Cele 1958 (1) SA 144 (N) at 153B - C; S v Sitwayi and
Others 1961 (4) SA 538 (E) ; S v Nkosiyana and Another 1966 (4) SA 655 (A) at
658H - 659A; S v Thomo and Others 1969 (1) SA 385 (A) at 399H; S v Letselo 1970
(3) SA 476 (A) ; S v Moorman 1976 (3) SA 510 (A) at 512F; S v Bergh 1976 (4) SA
857 (A) at 864 et seq ; S v Prins en 'n Ander 1977 (3) SA 807 (A) at 814H; S v
Williams en Andere 1980 (1) SA 60 (A) at 63F; S v Hlolloane I 1980 (3) SA 824 (A)
; S v Felix 1980 (4) SA 604 (A) at 611E; S v Maxaba 1981 (1) SA 1148 (A) at
1156H; S v Sauls 1981 (3) SA 172 (A) at 179G - 180H; S v Lombaard 1981 (3) SA
198 (A) at 199E; S v Witbooi 1982 (1) SA 30 (A) at 33H, 34A; S v Khoza 1982 (3)
SA 1019 (A) at 1032 - 5, 1044H, 1051D, 1052F, 1054H; S v Daniëls 1983 (3) SA 275
(A) at 325D, 331B; S v Leepile and Others (1) 1986 (2) SA 333 (W) ; Wheeler v Le J
Marchant (1881) 17 CD
1988 (1) SA p870

BOTHA JA

A 675 at 681; Marks v Beyfus (1890) 25 QBD 494 at 498; R v Snider (1953) 2 DLR 9; Ex
parte Brown: Re Tunstall and Another 1966 - 67 vol 67 State Report NSW 1; Butler v
Board of Trade [1970] 3 All ER 593 at 1073b - c ; D v NSPCC [1977] 1 All ER 589 (HL)
at 601d , 602d ; Waugh v British Railways Board [1979] 2 All ER 1169 (HL); Sankey v
Whitlam and Others (1979) 53 B ALJR 11 at 21 - 4, 28; Baker v Campbell (1984) 49 ALR
385 at 395; R v Richardson 3 F & F 693 (176 ER 318); R v Barton [1972] 2 All ER 1192;
Wigmore on Evidence vol 8 paras 2291, 2292; Glanville Williams Textbook of Criminal
Law (1978) at 338; S v Smith 1984 (1) SA 583 (A) at 596D; R v Mgxwiti 1954 (1) SA
370 (A) at 374A; S v Shenker 1976 (3) SA 57 (A) at 60A; R v Melozani 1952 (3) SA
639 (A) at 643F; R v Jantjies 1958 (2) SA 273 (A)C at 275A; S v Williams en 'n Ander
1970 (2) SA 654 (A) at 655G; S v Sikosana 1980 (4) SA 559 (A) at 563A; S v E
1965 (4) SA 526 (A) at 530D; S v Siwesa 1957 (2) SA 223 (A) at 225H; S v
Mofokeng 1962 (3) SA 551 (A) at 559G; S v Nkwenja en 'n Ander 1985 (2) SA 560
(A) at 567B; S v Tsotsobe and Others (unreported judgment of Appellate Division, case
D No 169/82); Criminal Procedure Act 51 of 1977 ss 319(1), 322(1).

E Jordaan for the State referred to the following authorities: Hiemstra Suid-Afrikaanse
Strafproses 3rd ed at 725 in fine ; Schmidt Bewysreg 2nd ed at 542, 545; Hoffmann and
Zeffertt South African Law of Evidence 3rd ed at 204; Van Niekerk, Van der Merwe and
Van Wyk E Privilegies in die Bewysreg at 96 - 7; Cross on Evidence 6th ed at 399 - 400;
Phipson on Evidence 13th ed para 15-13; (1973) New Law Journal vol 123 at 517; May
1980 THRHR ; May 1980 SALJ ; Hunt SA Criminal Law and Procedure 2nd ed vol II at 77,
78; Snyman Strafreg at 49; R v Jackelson 1920 AD 486; R v Mgxwiti 1954 (1) SA 370
(A) ; R v Cele and Others 1958 (1) SA 144 (N)F at 153B - C; R v Jantjies 1958 (2)
SA 273 (A) at 275A; R v H en 'n Ander 1959 (3) SA 648 (T) ; R v Chanjere 1960 (1)
SA 473 (FC) ; R v Dladla and Others 1962 (1) SA 307 (A) ; S v Williams en 'n Ander
1970 (2) SA 654 (A) at 655H; S v Cooper en Andere 1976 (2) SA 875 (T) at 878; S
v Mushimba en Andere 1977 (2) SA 829 (A) at 841A - C; S v Williams en 'n Ander
1980 (1) SA 60 (A) at 63; S v Sikosana 1980 (4) SA 559 (A) at G 563A - B; S v
Maxaba en Andere 1981 (1) SA 1148 (A) at 1156 in fine - 1157; S v Khoza 1982 (3)
SA 1019 (A) at 1030C - E, 1035B - E, 1044B - E, 1054 - 5; S v Daniëls en 'n Ander
1983 (3) SA 275 (A) at 325D; S v Dhlamini and Others 1984 (3) SA 360 (N) at
365H; Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and H
Marketing and Others 1979 (1) SA 637 (C) at 643H - 644C; Burnell v British Transport
Commission [1955] 3 All ER 822 (CA); R v Barton [1972] 2 All ER 1192; R v Chisvo and
Others 1968 (3) SA 353 (RA) at 354G - H.
Cur adv vult .

Postea (December 1). I


[zJDz]Judgment

Botha JA: On 3 September 1984 Mr Kuzwayo Jacob Dlamini, the deputy mayor of the
town council of Lekoa, was murdered outside his house in Sharpeville, near Vereeniging.
A mob of people numbering about 100 had attacked his house, first by pelting it with
stones, thus breaking the J windows, and then by hurling petrol bombs through the
windows, thus
1988 (1) SA p871

BOTHA JA

A setting the house alight. Mr Dlamini's car was removed from the garage, pushed into
the street, turned on its side, and set on fire. As his house was burning down Mr Dlamini
fled from it and ran towards a neighbouring house. Before he could reach it he was
caught by some members of the mob, who disarmed him of a pistol that he had with
him. He was then assaulted. Stones were thrown at him and some members of the B
mob went up to him and battered his head with stones. Thereafter he was dragged into
the street, where petrol was poured over him and he was set alight. He died there.

These events led to eight persons - they are the eight appellants in this case - being
charged in the Transvaal Provincial Division before Human AJ and assessors on two
counts. Count one was a charge of murder, C arising out of the killing of Mr Dlamini, to
whom I shall henceforth refer as the deceased. Count two was a charge of subversion,
which was framed in terms of s 54(2) of Act 74 of 1982 (the Internal Security Act), with
reference to certain circumstances surrounding the killing of the deceased which will be
detailed later. Count two contained D alternative charges of arson and malicious injury to
property. All the appellants pleaded not guilty to all the charges. For convenience I shall
refer to the appellants collectively as the accused and individually by means of the
numbers allocated to each of them in the Court a quo . At the conclusion of a lengthy
trial the trial Court convicted the accused as follows:

Count one: accused Nos 1, 2, 3, 4, 7 and 8 convicted of murder; E accused Nos 5 and
6 convicted of public violence (this being a competent verdict in terms of s 258 of the
Criminal Procedure Act 51 of 1977).

Count two: all the accused convicted of subversion.

In respect of the convictions of accused Nos 1, 2, 3, 4, 7 and 8 on the charge of


murder, the trial Court found that there were no F extenuating circumstances.
Consequently each of these accused was sentenced to death. In respect of the
convictions of accused Nos 5 and 6 of public violence, each of them was sentenced to 5
years' imprisonment. In respect of the convictions of subversion, all of the accused were
sentenced to 8 years' imprisonment. In the case of accused Nos 5 and 6 it was ordered
that their sentences of imprisonment were to run G concurrently.

The trial Judge granted leave to all the accused to appeal to this Court. In his
judgment granting leave the learned Judge specified certain grounds upon which he
considered that leave should be granted. The first issue to be considered in this appeal is
whether the trial Judge intended to curtail the ambit of the appeal by limiting it to the H
grounds specified in his judgment (this was the contention advanced on behalf of the
State) or whether the grounds specified were merely the reasons mentioned by the
learned Judge for granting leave which was intended nevertheless to be leave in general
terms (as was contended for on behalf of the accused). This issue was argued
separately, as a I preliminary matter, at the outset of the hearing of the appeal. At the
conclusion of this part of the argument the Court announced that counsel for the accused
would be allowed to argue the appeal without any limitation as to the scope of the
grounds he wished to canvass and that the Court would deal with the preliminary
arguments in its final judgment. In order to explain why this course was followed, and
also J with a view to the basis upon which the factual issues
1988 (1) SA p872

BOTHA JA

A will be dealt with later in this judgment, it is necessary first of all to survey some
aspects of the course of the trial generally and of the trial Judge's judgment on the
merits, and thereafter to advert to the application for leave to appeal and the trial
Judge's judgment thereon.

The trial was, as I have said, a lengthy one. A large number of witnesses were called
to testify, both for the State and for the B accused. Amongst the witnesses called by the
State were a number of eyewitnesses of the events, or parts of the events, in question.
Of these, the names of three must be mentioned now: Jantjie Mabuti, Mrs Alice Dlamini,
and Joseph Manete. Mabuti gave the most detailed account of the entire sequence of the
events. In his evidence he implicated C accused Nos 1, 4, 5, 6, 7 and 8, all of whom
were known to him. Mrs Dlamini, the widow of the deceased, testified to part of the
events, and implicated accused No 1, whom she knew. Manete described a part of the
events that he witnessed, and implicated accused Nos 7 and 8, who were known to him.
Accused No 2 was implicated by a confession that he had made to a magistrate, which
was ruled to be admissible after a 'trial D within the trial', and also by a letter he had
written to the Minister of Justice while in prison. Accused No 3 was implicated by means
of police evidence as to the circumstances under which the deceased's pistol was found
in his possession some time after the events.

During the cross-examination of the State witness Manete, counsel for E the accused
informed the trial Judge that he (counsel) was in possession of a statement made by
Manete which was prima facie a privileged statement, having been made by the witness
to an attorney for the purpose of obtaining legal advice. Counsel argued that he was
nevertheless entitled to cross-examine Manete on the contents of the F statement. It will
be necessary later in this judgment to examine the nature of the argument that was put
forward by counsel and what transpired during its presentation to the Judge a quo . For
present purposes the point to be recorded is that the trial Judge at the conclusion of the
argument delivered a judgment in which he held that he had no power to order Manete
to be cross-examined about the statement. G Accordingly he ruled that such cross-
examination be disallowed.

All the accused gave evidence denying complicity in the events that led to the killing of
the deceased. Most of them denied having been at or near the scene at any relevant
time and some set up alibi defences of an elaborate nature, involving the calling of many
witnesses. In H addition, a number of witnesses were called to contradict some of the
general observations deposed to by the eyewitnesses called by the State, particularly
Mabuti.

In a comprehensive judgment on the merits of the case Human AJ analysed all the
evidence in detail and furnished full reasons as to why the trial Court accepted the
evidence of certain witnesses and rejected I that of others. With regard to the
eyewitnesses called by the State, the trial Court found that some of them were
unreliable and that no weight could be attached to their evidence; others the trial Court
found to be both credible and reliable witnesses. In the latter category were the three
witnesses whose names I have mentioned already: Mabuti, Mrs Dlamini, and Manete. It
is clear from the judgment that the trial Court J considered
1988 (1) SA p873

BOTHA JA

A Mabuti to be a particularly impressive witness; the Court's opinion of him, as recorded


by the trial Judge, was that he was an extremely competent, intelligent and honest
witness. During the course of the events in question he had deliberately from time to
time moved from one vantage point to another in order to be able the better to observe
the events, with the specific object of later making a full report of what B he had seen to
the police (which he did). The Court found, on an analysis of his evidence, that he was
able to make the observations to which he testified and that they were reliable. Of Mrs
Dlamini the trial Judge observed that her honesty could not be questioned (nor was it),
and that her observations were found by the trial Court to be reliable. As to Manete, the
trial Judge remarked that in respect of some details C his evidence was subject to valid
criticism. The trial Court treated his evidence with caution, but nevertheless found it to
be acceptable, particularly insofar as he implicated accused Nos 7 and 8. In this regard it
must be noted that the trial Court, in assessing the State case, placed reliance on the
fact that Mabuti and Manete corroborated D each other in a number of material respects.
(This aspect of the trial Court's approach will be referred to again later.) With regard to
the witnesses for the defence, the trial Judge canvassed numerous contradictions and
other unsatisfactory features in the evidence of each of the accused, which the trial
Court regarded as justifying the rejection of the denials of complicity by the accused as
being false E beyond reasonable doubt. Similarly, the evidence of the witnesses called in
support of the alibi defences and in refutation of some of Mabuti's general observations
was scrutinised at considerable length in order to demonstrate the grounds upon which
the trial Court concluded that that evidence, insofar as it was material, was also false
beyond reasonable F doubt.

Against this background I now turn to the application for leave to appeal. The
application contained no less than 22 separately enumerated grounds upon which leave
was sought, some of which were of a composite nature. I do not propose to quote these
grounds. For the most part they related to specific findings of fact by the trial Court and
to the G acceptance or rejection by the trial Court of the evidence of particular
witnesses. For instance, in para 10 the ground of appeal put forward was that the trial
Court had erred in accepting the evidence of Mabuti, for a number of reasons, including
the fact that his evidence was in conflict with that of certain named defence witnesses on
particular H stated issues of fact. In a limited number of instances, however, the grounds
of appeal advanced were based on the supposition that the State evidence was
acceptable. For instance, in paras 1 and 2 it was said that there was no evidence that
any act of any of accused Nos 1, 2, 3, 4, 7 and 8 had caused the death of the deceased,
while in para 12 it was I alleged that the trial Court had erred in finding on the basis of
the State evidence that accused Nos 5 and 6 were guilty of public violence. Particular
mention must be made of para 14, in which the ground of appeal raised was that the
trial Judge had erred in law in disallowing the cross-examination of the witness Manete
in regard to the statement made by him to the attorney of record in the case. For the
rest, the J last few grounds of appeal related to the finding that there were no
1988 (1) SA p874

BOTHA JA

A extenuating circumstances in regard to the six accused convicted of murder, and to


the sentences of imprisonment imposed on all the accused, as mentioned earlier.

In his judgment on the application Human AJ said the following:


'Insofar as the application for leave to appeal to the Appellate B Division is concerned
on the charge of murder and the subsequent sentence of death, there are at least 22
grounds advanced in the application for leave to appeal. It is unnecessary to repeat
them all in view of the fact that I am of the view that there is no reasonable prospect of
success insofar as the facts found proved by this Court is (sic ) concerned but on three
other grounds, being questions of law, I am satisfied that I should grant leave to appeal
to the Appellate Division.'

C The learned Judge proceeded to deal with the three grounds he had in mind as follows.
First, with reference to an argument advanced by counsel for the accused that there was
'no causal connection proved between the acts of the several accused and the
deceased's death', the learned Judge quoted at length certain passages from three of the
judgments delivered in S v Khoza 1982 (3) SA 1019 (A) and then said: D
'(I)t seems to me that the question of causality is in the melting pot and should once
and for all be decided authoritatively by the Appellate Division. On that ground I am,
therefore, of the opinion that leave should be granted.'

The learned Judge continued as follows:


'But there is a second ground in law why I should grant leave to E appeal and that is
that I disallowed the cross-examination of the witness Manete in regard to a privileged
statement that he had made. Another Court may come to the conclusion in that respect
that I erred in law and that may have been to the prejudice of the accused generally,
especially accused Nos 7 and 8.'

The learned Judge mentioned that counsel for the State had referred him F to s 201 of
the Criminal Procedure Act and, having quoted the provisions of that section, went on to
say:
'I must point out that I gave a separate judgment in this respect and I did not agree
with the judgment of an English Judge which was quoted to me by Mr Unterhalter for the
defence. However, I am still of the view that another Court may come to a different
conclusion despite the G provisions of the section to which I have just referred on the
ground that where it is in the interests of an accused such cross-examination should
have been allowed.'

The judgment continued as follows:


'The third ground on which I grant leave to appeal is the question of my interpretation
of s 54(2) as well as the provisions of s 69 of the Internal Security Act 74 of 1982.
Another Court may come to a conclusion H that my interpretation was not altogether
correct in law.'

Having stated the three grounds of appeal as quoted above, the learned Judge
concluded:
'I am therefore disposed to grant leave to appeal to all the accused for leave to appeal
(sic ) to the Appellate Division.'

I However, the learned Judge then added a further final paragraph to his judgment,
which commenced by mentioning that accused Nos 5 and 6 had been convicted of public
violence. He then referred, in passing it seems, to accused No 4. He said that it had been
argued on her behalf that there was no evidence proving that certain words of
incitement which she had shouted (according to the finding of the trial Court, as J will
appear later)
1988 (1) SA p875

BOTHA JA

A had been overheard or acted upon by other members of the mob. The learned Judge
made no comment on this, but simply reverted to accused Nos 5 and 6 by saying, in
conclusion of his judgment:
'I am also disposed to grant leave to accused Nos 5 and 6 to appeal on the charge of
public violence.'
It will be convenient to dispose at once of the issue whether or not B the trial Judge
intended to limit the ambit of the appeal to the grounds specified by him. In my opinion,
although the judgment granting leave is not ideally clear, the learned Judge did intend
so to limit the scope of the appeal. Having regard to the fact that he expressed the view
that there was no reasonable prospect of success in relation to the facts found proved by
the trial Court, it is difficult to conceive that he C could have intended to allow the
accused to canvass the trial Court's factual findings on appeal for, ex hypothesi , that
would have been a futile exercise. This view is fortified by his use of the words 'but on
three other grounds, being questions of law', by which the findings of fact were implicitly
excluded from consideration. The manner in which D the learned Judge enumerated the
three specified grounds of appeal, as quoted above, also militates against the possibility
that he intended to grant leave in general, unrestricted terms, for it would be difficult to
reconcile the way in which he expressed himself with an intention merely to state
reasons for granting leave generally. In that light his statement that he was disposed to
grant leave to all the accused cannot, E in my view, properly be construed as granting
leave generally, over and above the three grounds of appeal which had been specified.
Nor does the final paragraph of his judgment materially alter the position. In the
context, the granting of leave to accused Nos 5 and 6 to appeal against their convictions
of public violence was most probably based on para 12 F of the application for leave, to
which reference was made earlier, in which it was alleged that the trial Court had erred
in finding on the basis of the State evidence that accused Nos 5 and 6 were guilty of
public violence. In effect, the learned Judge added a fourth ground of appeal, relating to
accused Nos 5 and 6, to the three grounds already enumerated by him, but I do not
think that he intended thereby to open the door to a consideration of the trial Court's
findings of fact in G regard to either the conduct of accused Nos 5 and 6 or any other
aspect of the case. Similarly, the reference to the argument advanced on behalf of
accused No 4, mentioned above, was most likely meant merely to indicate a point that
could be considered on appeal, without any intention to enlarge the ambit of the leave
granted so as to embrace an H attack on the trial Court's findings of fact. Finally, the
learned Judge omitted to deal pertinently in his judgment with the question of leave to
appeal against the finding that there were no extenuating circumstances on the murder
count or against the sentences imposed in respect of the other convictions. It is not clear
whether the learned I Judge, by not mentioning this aspect of the matter, intended to
convey that leave to appeal in that regard was being refused, or whether his failure to
deal with it was merely an oversight. But whatever the position may be in that respect
(and I shall revert to it later), I do not consider that it could serve to justify an inference
that the learned Judge intended to grant leave to appeal in respect of the convictions
themselves in terms broader than those specified in the J judgment.
1988 (1) SA p876

BOTHA JA

A It will be recalled that the ambit of the leave to appeal granted by the Judge a quo
was argued as a preliminary issue at the outset of the hearing of this appeal, and that
the Court then ruled that counsel for the accused would be allowed to canvass all the
issues that he wished to raise. It is necessary now to explain why this ruling was made.
It was B not based upon a consideration of the terms of the judgment granting leave,
taken generally, nor upon the arguments addressed to the Court as to the interpretation
of the judgment. The basis of the ruling was a narrow one, and it related solely to the
circumstances pertaining to the witness Manete. To sum up: Manete was an eyewitness
called by the State whose evidence the trial Court found to be acceptable, particularly in
C regard to the complicity of accused Nos 7 and 8; in assessing the State case, as I
pointed out earlier, the trial Court had placed reliance on the fact that Manete and
Mabuti had corroborated each other in material respects, and Mabuti was a most
important witness for the State; but the trial Judge had disallowed cross-examination of
Manete on a statement D made by him; leave was sought to appeal against that ruling;
and the trial Judge granted leave on that ground, remarking that the accused,
particularly accused Nos 7 and 8, could have been prejudiced in that respect. In these
circumstances it was clear that if this Court were to decide that the trial Judge had erred
in disallowing Manete's E cross-examination a re-appraisal of the entire case would be
called for, leaving aside the evidence of Manete. But at the stage when the preliminary
issue was being debated, the other issue as to the cross-examination of Manete was yet
to be argued. It was obvious that the latter issue involved a principle of considerable
importance and it was felt that it would be inadvisable to call for argument on it and to F
decide it in the context of considering the preliminary issue. Accordingly it was for the
purpose of catering for the possibility of the Court ultimately finding that Manete's cross-
examination had been wrongly restricted, and of a re-appraisal of the remainder of the
evidence in that event, that the Court made the ruling under discussion. It was upon
that footing that counsel for the accused was given free rein in his argument. G

The possibility thus catered for has not eventuated. For reasons to be stated later, the
conclusion arrived at, after consideration of the arguments presented on this score, is
that the trial Judge cannot be faulted for having disallowed the cross-examination of
Manete to the extent that he did.

That, however, does not yet put an end to the preliminary issue. H Counsel for the
accused argued in the first place that the trial Judge's judgment on the application for
leave to appeal, properly construed, did not limit the grounds upon which the appeal
could be argued. For reasons which appear from what has been said above, that
argument fails. But in the second place counsel argued that, even if the trial Judge did
intend I to restrict the grounds of appeal to those enumerated by him, this Court could
and should nevertheless allow the appeal to be argued on a broader basis, inclusive of all
the grounds put forward in the application and some others too. In one sense, this
argument is now academic since full argument on the appeal has been allowed in any
event for the reasons J explained above. But in another sense the argument is still of
residual
1988 (1) SA p877

BOTHA JA

A relevance, for upon the answer to it will depend the limits of the issues which fall to be
discussed in this judgment. I therefore proceed to deal with the argument.

It is generally accepted that leave to appeal can validly be restricted to certain


specified grounds of appeal (see R v Jantjies 1958 (2) SA 273 (A) at 275A; S v
Williams en 'n Ander 1970 (2) SA 654 (A) at B 655F - G; S v Sikosana 1980 (4) SA
559 (A) at 563A - B). In practice this is frequently a convenient and commendable
course to adopt, especially in long cases, in order to separate the wheat from the chaff.
On the other hand, this Court will not necessarily consider itself bound by the grounds
upon which leave has been granted. If this Court is of the view that in a ground of
appeal not covered by the terms of the leave granted C there is sufficient merit to
warrant the consideration of it, it will allow such a ground to be argued. This is well
illustrated by the judgment of Schreiner ACJ in R v Mpompotshe and Another 1958 (4)
SA 471 (A) at 472H - 473F. In my view, however, it requires to be emphasised that an
appellant has no right to argue matters not covered by the terms D of the leave granted.
His only 'right' is to ask this Court to allow him to do so. In Mpompotshe's case supra ,
Schreiner ACJ referred to 'matters which this Court should think worthy of consideration',
and to the power of the Court 'to condone the delay and grant leave to appeal on wider
grounds than those allowed by the trial Judge'. A formal petition for leave to appeal on
wider grounds is not an indispensable prerequisite, E since the matter is before the Court
whose members would be conversant with the record, but the remarks I have quoted
show that the Court will certainly decline to hear argument on an additional ground of
appeal if there is no reasonable prospect of success in respect of it. I should make it
clear that I am dealing here with the widening of grounds of F appeal in respect of an
appeal against a conviction. I am not dealing with the situation where leave has been
granted to appeal against sentence only and the appellant seeks to appeal against his
conviction - as to which, see S v Langa en Andere 1981 (3) SA 186 (A) at 189F -
190F; nor am I dealing at the moment with the converse situation where leave has been
granted to appeal against a conviction and the appellant seeks to appeal against his
sentence - as to that, see S v G Shenker and Another 1976 (3) SA 57 (A) at 58H -
61E, to which further reference will be made below.

In the present case the grounds of appeal, other than those enumerated by the trial
Judge, which counsel for the accused sought to argue (and, in the event, did argue)
were, for the most part, wholly without H substance. Were it not for the peculiar
situation arising from the point relating to the cross-examination of Manete, as described
above, this Court would not have allowed argument to proceed on those grounds of
appeal. The difficulty caused by the point about Manete's cross-examination has now
been resolved, as I have indicated. In these I circumstances there is no occasion for this
Court in the present judgment to furnish reasons for its view that the grounds of appeal
to which I have referred are without substance. The position is analogous to that which
would have existed had the accused petitioned the Chief Justice for leave to extend the
grounds of appeal stated by the trial Judge. Accordingly I shall make no further
reference to the additional J grounds of appeal which were argued but which
1988 (1) SA p878

BOTHA JA

A are considered to be without merit. I would only mention in general that the trial
Court's strong findings of credibility and reliability in respect of Mabuti and Mrs Dlamini,
as well as the trial Court's criticisms of the evidence of the accused and their witnesses,
are fully borne out by a perusal of the record.

B In two instances, however, apart from the grounds of appeal allowed by the trial
Judge, the arguments raised by counsel for the accused are not entirely devoid of merit.
They relate, firstly, to the conduct of accused No 1 which the trial Court found to have
been proved and, secondly, to the inference as to the complicity of accused No 3 which
the trial Court drew from the facts found proved against him. I shall C deal briefly with
these matters later in this judgment. In addition, a question was raised in argument
before this Court which had not been referred to in the Court a quo at all, nor even in
counsel's heads of argument, but which requires consideration. It relates to the propriety
of the convictions of accused Nos 5 and 6 of both public violence and subversion. This
will also be dealt with later in this judgment. D

As to the trial Court's finding in regard to the absence of extenuating circumstances


and the trial Judge's sentences, Shenker's case supra is authority for the proposition that
this Court is empowered to consider an appeal against sentence even if leave has been
granted to appeal against conviction only. I imagine that in that situation, too, E the
Court would entertain an argument directed against sentence only if it were satisfied
that there was a reasonable prospect of it succeeding. In the present case, however, I
do not wish to pose this question for, as I have pointed out, it is not clear from the
judgment of the trial Judge whether or not he intended to refuse leave to appeal in
respect of the finding in regard to extenuating circumstances and the sentences F
imposed. Accordingly, insofar as it may turn out to be necessary, I shall deal with these
matters at the end of this judgment as if leave had been granted in those respects.

That concludes my survey of the ambit of this appeal.

It will be convenient to deal first with the second ground of appeal mentioned by the
trial Judge, ie the matter of Manete's G cross-examination. How the point arose and was
dealt with in the course of the trial requires to be described in some detail. After the
cross-examination of Manete by counsel for the accused had been in progress for some
considerable time, counsel requested the trial Judge to order that the witness should
temporarily stand down and leave the H Court room. The trial Judge acceded to the
request. Thereupon counsel informed the trial Judge that he was in possession of a
statement that the witness had made to an attorney, which was in fact a communication
made by him as client to such attorney whom he had consulted, and which was
accordingly privileged. From exchanges between counsel and the trial Judge during later
stages of the debate that ensued, the following I further information relating to the
statement emerged: it was made by the witness during a consultation with his attorney
for the purpose of obtaining legal advice on a matter concerning him (the witness) in
relation to the very trial which was being heard; the attorney concerned was the very
same attorney who was the instructing attorney acting on behalf of the accused in the
trial; and the attorney had made the J statement available to counsel for the accused
after
1988 (1) SA p879

BOTHA JA

A having sought and obtained the views of a number of members of the Law Society,
which were to the effect that the matter should be put before the trial Court in order to
seek its guidance.

On being informed of the existence of Manete's privileged statement which counsel


had in his possession, the trial Judge raised with counsel the question whether the Court
would have any power to order the witness B to answer questions in regard to the
statement, in the event of the witness not being prepared to waive the privilege
attaching to it. Counsel submitted that the trial Judge did have that power. In support of
this submission counsel relied on R v Barton [1972] 2 All ER 1192. In fact, he read out
the whole of the judgment in that case to the trial Judge. In view of the importance
which counsel attached to that C judgment, both in the Court a quo and in argument
before this Court, and having regard to the tenor of the judgment, I feel constrained to
quote it in full. It was a judgment delivered by Caulfield J in the Crown Court at Lincoln.
In the quotation which follows, I have emphasised certain passages for ease of reference
later. D
'This is a novel application in my experience. We are on circuit and counsel, who have
given the greatest possible assistance, have themselves been in some difficulty in
carrying out the research necessary in order to help the Court. This accused man is
facing a number of counts which allege that, in the course of his employment as a legal
executive with a firm of solicitors in this county, he has fraudulently converted to his
own use moneys which formed part of an E estate which he was administering on behalf
of either executors or administrators. He is also charged with theft and falsification of
accounts; all these counts are said to have arisen out of his administering, in the course
of his duties, certain estates. It is not necessary for this ruling also to state that in the
Crown case the Crown alleges that in one or two instances he was an executor or trustee
of estates.
These, of course, are very serious counts and allegations that are F made against him.
After arraignment, but before impanelling the jury, counsel for the accused made an
application to me to make a ruling on a point that had been taken by a solicitor who is a
partner in the relevant firm. A subpoena has been served on the solicitor by the defence
and, included in the narrative of the subpoena to attend to give evidence, is what in
effect is the old-fashioned notice to produce documents, and those documents of which
notice is given to produce are, G I am told (and I assume for the purposes of this
ruling), documents that have come into existence in the solicitors' office where the
solicitor is acting as the solicitor to executors or administrators in the administration or
winding-up of estates; and those documents in respect of those estates are not
documents that would otherwise be relevant or admissible in this trial. They are not the
subject of any charge against H the accused, and on the Crown case they would not be
in evidence. But I am told by counsel for the accused, and I have to assume that this is
absolutely correct for the purposes of this ruling, that the documents, or certain of the
documents included in the notice to produce, will help to further a point that is going to
be raised in defence of these charges and, subject to correction from counsel for the
accused, that really is the ground on which he seeks to make this application. Putting it
in another way, counsel says that in the interests of his client I justice would not be done
unless these documents were disclosed. Counsel contends that certain of those
documents may or do contain evidence which will help the accused in resisting these
counts to which he has pleaded not guilty .
The solicitor has acted perfectly properly, as one would expect, throughout. He in fact
is a witness for the Crown, and therefore the subpoena to give evidence which has been
served on him was really unnecessary. This ruling is concerned simply with the notice to
produce J that is incorporated in the subpoena. Having
1988 (1) SA p880

BOTHA JA
A taken the advice of the Law Society, the solicitor has taken the point that these
documents are privileged and therefore he does not have to produce them. He has taken
this point in a purely professional way; he has not taken it aggressively. When the
defence application was made he was not in Court officially, and in any event he is a
witness for the Crown. He was not represented and I took the view that as a matter of B
justice he should have the opportunity of receiving independent advice and having
separate representation before me. So the matter was adjourned for a day or so and
now counsel has made submissions to me on behalf of the solicitor to support his
contention.
The principles of legal professional privilege are fully set out in Professor Cross' book
on evidence to which I have been referred, and generally speaking it is perfectly simple
to decide whether or not a C particular document is privileged. As Professor Cross says
in his book:
"Communications passing between a client and his legal adviser, together, in some
cases, with communications passing between these persons and third parties may not be
given in evidence without the consent of the client if they were made either (1) with
reference to litigation that was actually taking place or was in the contemplation of the
client, or (2) if they were made to enable the client to D obtain, or the adviser to give,
legal advice."
And of course the privilege is one that is claimed by the client. Further, it is fairly plain
from what counsel for the solicitor has submitted to me on his behalf that a solicitor has
a duty to alert his client to this particular point, and indeed to take this point even
though the client has not himself had the opportunity to take it. So the solicitor has
acted perfectly properly throughout. In the normal case in E civil proceedings this is the
sort of application which would come to be determined prior to the trial, and the
documents which were the subject of objection by the solicitor would be produced to the
Master or Judge and then the Judge, who would not be trying the action, would look at
the documents and give a ruling, and of course the procedure is well laid down as to
what should be done. That is why I was in some difficulty as to how to determine this
application, which of course is F being made in the absence of the jury. So I have not
seen any of these documents and therefore, apart from what I have heard from counsel,
I do not think that it is possible for me to make any ruling on the ground that these
documents were documents that had any reference to litigation that was actually taking
place or was in the contemplation of the client, or secondly - going to the second point
made by Professor Cross - that the documents were made to enable the client to obtain,
or the G adviser to give, legal advice.
I am not going to decide this application on the basis that either one or other of those
two principles is not satisfied in this particular application. I think the correct principle is
this, and I think that it must be restricted to these particular facts in a criminal trial, and
the principle I am going to enunciate is not supported by any authority that has been
cited to me; I am just working on what I conceive to be H the rules of natural justice. If
there are documents in the possession or control of a solicitor which, on production, help
to further the defence of an accused man, then in my judgment no privilege attaches. I
cannot conceive that our law would permit a solicitor or other person to screen from a
jury information which, if disclosed to the jury, would perhaps enable a man either to
establish his innocence or to resist an allegation made by the Crown. I think that is the
principle that should be followed .
I I am not going to express in any detail what documents should or should not be in
evidence in this case. Of course, those documents, when they are produced in this case,
will have to contain evidence that is both relevant and admissible. Those two points will
have to be satisfied, and no doubt the Crown will be alert to object if there is any
evidence in the documents which is neither relevant nor admissible, but where there is
evidence which is in the possession of the solicitor that is relevant and admissible to a
contention by the accused either J pointing to his innocence or resisting his
1988 (1) SA p881

BOTHA JA
A guilt, that document in my judgment is not privileged and the solicitor must obey
the subpoena and notice to produce that has been served on him. I am at this stage only
stating what I think is the principle to be followed, and from what I have been told on
behalf of the solicitor he is desirous of co-operating. The documents can no doubt be
examined by counsel for the defence in the company of counsel for the Crown, and I see
no reason why the solicitor should not have his own separate adviser present at the
time. I have no doubt then that the point I have made in B this ruling will be appreciated
and only those documents which are relevant and admissible will be brought before the
Court. Therefore I do not set aside this subpoena and I do not set aside the notice to
produce.'

As to the first passage emphasised in the quotation above, counsel for the accused,
when reading it to the trial Judge, paused after each sentence in order to stress that he
was putting forward contentions in C the present case which were identical in substance
with those referred to in that passage. As to the last two passages emphasised in the
quotation above, counsel said that they embodied the principle on which he was relying
for the submission that he was entitled to cross-examine D Manete on his statement.

Immediately after counsel for the accused had concluded his reading of the judgment
in Barton's case to the trial Judge, the following exchanges took place between the
learned Judge and counsel:
'Court: My difficulty is I do not know how this statement will assist, even if I adopt that
principle, how will this statement assist the accused to prove their innocence? How can I
make a ruling before I know E that?
Mr Unterhalter: Well, My Lord, without going into the matter in any detail...
Court: Well, I must know.
Mr Unterhalter: Yes. Well, if I may, with Your Lordship's permission do so, the contents
of this statement are to the effect that the implication of accused No 7 and No 8 is not a
voluntary implication, but F an implication that was dictated to this witness and because
of that...
Court: I beg your pardon? It was not a voluntary what?
Mr Unterhalter: It was not a voluntary implication of accused Nos 7 and 8, but he was
told to implicate them. In other words he is not giving the evidence absolutely
untrammelled, he did it because he was told by the police to do it.'

G After further argument by counsel for the accused (during which no fresh light was
thrown on the contents of the statement), the trial Judge enquired from counsel for the
State what his attitude was, whereupon counsel for the State responded briefly that he
was unaware of what was contained in the statement and that he objected to the
disclosure of its contents on the ground of the privilege attaching to it. Thereafter
Manete was called back to the witness stand. The trial Judge explained H to him that
counsel for the accused wished to cross-examine him on the statement that he had
made to the attorney, that this statement was privileged, that he could claim privilege or
waive it, and that he was entitled to seek legal advice on his position if he wished to do
so. The witness said that he recalled having made a statement to an attorney. I The
following then appears from the record:
'Now you see, you cannot be questioned about that statement because it is a
privileged statement - Yes, I understand.
Unless I order you to answer questions about that statement. Now, in order for me to
determine what to do I must enquire from you whether you claim privilege, in other
words you refuse to answer questions about J that statement - Yes, I refuse.
1988 (1) SA p882

BOTHA JA
A Pardon? - Yes, I do not want to answer questions about that statement.
You do not want to answer questions about.. - Yes.
So you claim privilege? - Yes.'

Counsel for the accused then presented further argument to the Court a quo . He
referred to the comments on Barton's case appearing in Phipson on Evidence 12th ed
para 585 at 242 (see now the 13th edition para 15-07 B at 294) and in Cross on
Evidence 5th ed at 290 - 1 and 315. Finally, he placed before the trial Judge a passage
in the speech of Lord Diplock in Secretary of State for Defence and Another v Guardian
Newspapers Ltd [1984] 3 All ER 601 (HL) at 605d - g . That case concerned a statutory
provision relating to the disclosure of certain sources of information. C In the passage
cited Lord Diplock referred to the discretion that an English Judge had under the
common law to decline to order disclosure of sources of information, despite their
relevance to an issue in particular proceedings, where such disclosure would be contrary
to some public interest; he said that the classic example of the exercise of this discretion
was where disclosure of the identity of police informers D was sought; he mentioned that
the discretion had been extended by the House of Lords to other sources of information,
in different contexts; and then he went on to say the following:
'The rationale of the existence of this discretion was that unless informants could be
confident that their identity would not be disclosed E there was a serious risk that
sources of information would dry up. So the exercise of the discretion involved weighing
the public interest in eliminating this risk against the conflicting public interest that
information which might assist a judicial tribunal to ascertain facts relevant to an issue
on which it is required to adjudicate should not be withheld from that tribunal. Unless
the balance of competing public interest titled (sic ? tilted) against disclosure, the right
to F disclosure of sources of information in cases where this was relevant prevailed.'

Counsel for the accused told the trial Judge that he was invoking 'that principle' for the
submission that disclosure of Manete's statement should be permitted.

The trial Judge thereupon gave judgment on the matter. He reviewed the G authorities
to which he had been referred, and concluded as follows:
'I am of the view that where the witness claims privilege in regard to a statement that
he had made to a professional person and he does not waive that privilege I have no
power to order him to be cross-examined about that statement. I therefore cannot
accede to defence counsel's request that I should order him to be cross-examined on
that statement which he admittedly made... to... an attorney, acting for the H accused at
the present stage.'

I have dwelt at some length on the course of events in regard to the present matter in
the Court a quo because when counsel for the accused argued the matter in this Court it
appeared that there was, if not a change of front, at least a distinct shift in the emphasis
of his I argument. Although he still relied heavily on Barton's case supra , the main
thrust of his argument in this Court was that the trial Judge had a discretion as to
whether or not he would allow Manete to be cross-examined on his statement, and that
the learned Judge, by holding that he had no power to do so, had not exercised his
discretion at all, or at least not properly. I shall deal later with the argument in regard J
to the discretion and the authorities
1988 (1) SA p883

BOTHA JA

A cited to us by counsel. For present purposes the question is whether the trial Judge
was ever invited to exercise a discretion. When this question was put to counsel for the
accused in the course of his argument in this Court he fairly conceded that that had not
been done in so many words, but he urged that it had been done implicitly. The point
about this enquiry is, of course, that there may possibly be no room for B entertaining
an argument on appeal that the trial Judge had failed to exercise a discretion, or that he
had exercised it improperly, if in fact he had not been invited to apply his mind to the
exercise of a discretion at all.

In view of the course of events outlined above, I do not agree with counsel's
submission that the trial Judge had implicitly been asked to exercise a discretion, at least
not in the sense in which the phrase C 'exercise a discretion' is ordinarily used in a court
of law. The judgment of Caulfield J in Barton's case supra was the cornerstone of the
argument in the Court a quo . That judgment, however, as I understand it, did not
involve the exercise of a discretion. The principle on which the decision was stated to be
based, to paraphrase it in broad terms, D was that in a criminal case documents in the
possession of a solicitor which would otherwise have been the subject of legal
professional privilege were not privileged from production when once it was alleged on
behalf of the accused that they could help to further the defence of the accused by
pointing to his innocence or resisting his guilt. It is E clear that the mere allegation by
counsel for the accused in that case that the documents in question would or might
assist the accused in his defence was regarded by Caulfield J as a sufficient ground in
itself for destroying the privilege. As pointed out earlier, with reference to the first
passage emphasised in my quotation of the judgment in Barton's F case, that is exactly
the way in which counsel for the accused in the present case presented his argument in
the Court a quo . It was never suggested to the trial Judge that he should peruse
Manete's statement with a view to exercising a discretion as to whether or not cross-
examination on it should be allowed. Such meagre information regarding the contents of
the statement as was disclosed was elicited only in response to questioning by the trial
Judge. I appreciate that G counsel for the accused had reservations about the propriety
of divulging the contents of the statement until he had obtained a ruling on its
admissibility from the trial Judge, but that cannot alter the basis upon which the ruling
was sought. Nor did counsel's reliance on the remarks of Lord Diplock in the Guardian
Newspapers case supra , H quoted above, take the matter any further. The discretion
under discussion there related to the weighing of conflicting public interests in regard to
the disclosure of sources of information, and it was referred to in the most general
terms, unrelated to the relevant facts and circumstances of any particular case. The
passage quoted could not have been intended to alert the trial Judge to the possibility of
I exercising a discretion related to the particular facts and circumstances of the present
case, as opposed to the application of the broad principle adopted in Barton's case supra
. Accordingly it is not surprising that the trial Judge, having decided, as he obviously did,
not to follow the approach in Barton's case, did not in his judgment J advert to the
exercise of a discretion.
1988 (1) SA p884

BOTHA JA

A On the basis of the analysis above it is arguable that it is not open to the accused on
appeal to challenge the ruling of the trial Judge on the ground of his failure to exercise a
discretion properly or at all. I do not propose to pursue this point, however, since I
prefer not to base my decision on such a narrow ground. The manner in which the
argument B for the accused was put forward in the Court a quo remains relevant,
however, as will appear in due course, to the consideration of the argument addressed
to this Court regarding the trial Judge's discretion and the way in which it was submitted
that he should have exercised it. I proceed to deal with this argument.

In support of his contention that the trial Judge was vested with a C discretion which
he should have exercised in favour of allowing Manete to be cross-examined on his
privileged statement, counsel for the accused referred to a number of Australian and
Canadian cases, inter alia : Re Regina v Snider (1953) 2 DLR 9; Sankey v Whitlam and
Others (1979) 53 ALJR 11, and Baker v Campbell (1983) 49 ALR 385. These cases D are
not directly in point, but counsel used them to demonstrate the application of 'the
principle that where public interests conflict that which is paramount must prevail'
(Snider's case supra at 13). In the present case, counsel said, 'two public policies are in
conflict' (Snider's case supra at 43), namely the public policy underlying the E protection
generally afforded against the disclosure of communications subject to legal professional
privilege, and the public policy that no innocent man should be convicted of a crime. In
such a conflict, counsel submitted, the latter public policy is paramount and must
prevail. In this regard he relied on a passage in the judgment of Greenberg JA in the
well-known case of R v Steyn 1954 (1) SA 324 (A) . It was decided in F that case that
an accused has no right to claim disclosure of statements made by State witnesses to
the police. The passage relied on by counsel is the following (at 335C - E):
'I did not understand counsel for the appellant to contend that the concept embodied
in the phrase in favorem innocentiae could be invoked in favour of the claim that the law
entitled the appellant to G disclosure, and that this would make the rule in civil
proceedings inapplicable to a criminal trial, but in any case I do not think such a
contention could be supported. In the branch of the law now under consideration the
phrase is used to indicate a power in the Court to relax a rule of privilege if the Court is
of opinion that such relaxation may tend to show the innocence of the accused (see
Tranter v Attorney-General and the First Criminal Magistrate of Johannesburg 1907 H TS
415). In the present case the appellant has never contended that the magistrate wrongly
failed to exercise this power, but that he was entitled by a rule of law to the disclosure.'

Counsel contended that the trial Judge in the present case should have relaxed the
rule of privilege attaching to Manete's statement, on the ground that cross-examination
on that statement might have tended to show the innocence of the accused. It is to be
observed at once, I however, that the privilege which is applicable in the present case in
regard to Manete's statement was not at all at stake in Steyn's case, viz the privilege
flowing from the confidential nature of Manete's communication to the attorney for the
purpose of obtaining legal advice. Nor was that kind of privilege in issue in Tranter's case
supra to which Greenberg JA referred. Tranter's case was concerned with the rule of J
public policy against the
1988 (1) SA p885

BOTHA JA

A disclosure of the identity of a police informer, as recognised inter alia in Marks v


Beyfus (1890) 25 QBD 494 at 498, whence the exception in favorem innocentiae is
derived. Lord Esher said:
'I do not say it is a rule which can never be departed from; if upon the trial of a
prisoner the Judge should be of opinion that the disclosure of the name of the informant
is necessary or right in order B to show the prisoner's innocence, then one public policy
is in conflict with another public policy, and that which says that an innocent man is not
to be condemned when his innocence can be proved is the policy that must prevail. But
except in that case, this rule of public policy is not a matter of discretion....'
(In passing I point out that the phrases 'the Judge should be of opinion' and 'a matter of
discretion' presuppose that all the relevant C information is before the Court.) More
recently, in D v National Society for the Prevention of Cruelty to Children 1978 AC 171
(HL) ([1977] 1 All ER 589) Lord Simon said in a passage (at 232) which was quoted in
Sankey's case supra at 20:
'The public interest that no innocent man should be convicted of crime is so powerful
that it outweighs the general public interest that D sources of police information should
not be divulged, so that, exceptionally, such evidence must be forthcoming when
required to establish innocence in a criminal trial....'

In my opinion, however, the rule of public policy against the disclosure of the identity
of a police informer is not on a par with the principle of public policy underlying the legal
professional privilege afforded to a client who consults an attorney for the purpose of E
obtaining legal advice (cf S v Mpetha and Others (1) 1982 (2) SA 253 (C) at 259B - E).
The latter is of a more compelling nature than the former. Wigmore 3rd ed vol VIII para
2291 says:
'The policy of the privilege has been plainly grounded since the latter part of the 1700s
on subjective considerations. In order to F promote freedom of consultation of legal
advisers by clients, the apprehension of compelled disclosure by the legal advisers must
be removed; hence the law must prohibit such disclosure except on the client's consent.'

With reference to this passage Friedman J in Euroshipping Corporation of Monrovia v


Minister of Agricultural Economics and Marketing and Others G 1979 (1) SA 637 (C) at
643H - 644B spoke of 'this fundamental right of a client' and rightly stressed that it was
important
'that inroads should not be made into the right of a client to consult freely with his
legal adviser, without fear that his confidential communications to the latter will not be
kept secret'.

H A recent comprehensive survey of the history and nature of legal professional


privilege is to be found in the seven judgments delivered in the High Court of Australia in
the case of Baker v Campbell (supra ) which I have found to be most instructive.
Although, on the issue which called for decision in that case (which is not in point in the
present case), the Court was divided (four to three), all the judgments appear I to have
recognised, in regard to legal professional privilege, that
'this privilege is a mere manifestation of a fundamental principle upon which our
judicial system is based'

(see eg at 417 line 32), and in my view the same holds true for our own judicial system.
In amplification of the 'fundamental principle' referred to, I quote the following excerpts
from the judgment of Dawson J J (at 442 - 5):
1988 (1) SA p886

BOTHA JA
A 'The law came to recognise that for its better functioning it was necessary that there
should be freedom of communication between a lawyer and his client for the purpose of
giving and receiving legal advice and for the purpose of litigation and that this entailed
immunity from disclosure of such communications between them....
Whilst legal professional privilege was originally confined to the B maintenance of
confidence pursuant to a contractual duty which arises out of a professional relationship,
it is now established that its justification is to be found in the fact that the proper
functioning of our legal system depends upon a freedom of communication between legal
advisers and their clients which would not exist if either could be compelled to disclose
what passed between them for the purpose of giving or receiving advice.... The
restriction of the privilege to the legal C profession serves to emphasise that the
relationship between a client and his legal adviser has a special significance because it is
part of the functioning of the law itself....
The conflict between the principle that all relevant evidence should be disclosed and
the principle that communications between lawyer and client should be confidential has
been resolved in favour of the D confidentiality of those communications. It has been
determined that in this way the public interest is better served because the operation of
the adversary system, upon which we depend for the attainment of justice in our
society, would otherwise be impaired: see Waugh v British Railways Board [1980] AC
521 at 535, 536....
The privilege extends beyond communications made for the purpose of litigation to all
communications made for the purpose of giving or E receiving advice and this extension
of the principle makes it inappropriate to regard the doctrine as a mere rule of evidence.
It is a doctrine which is based upon the view that confidentiality is necessary for proper
functioning of the legal system and not merely the proper conduct of particular
litigation....
Speaking for myself, and with the greatest of respect, I should have thought it evident
that if communications between legal advisers and F their clients were subject to
compulsory disclosure in litigation, civil or criminal, there would be a restriction, serious
in many cases, upon the freedom with which advice or representation could be given or
sought. If a client cannot seek advice from his legal adviser confident that he is not
acting to his disadvantage in doing so, then his lack of confidence is likely to be reflected
in the instructions he gives, the advice he is given and ultimately in the legal process of
which the advice forms part.' G

With these views I respectfully agree. It follows, in my judgment, that any claim to a
relaxation of the privilege under discussion must be approached with the greatest
circumspection.

In the present case the essence of the situation with which we are dealing is this: in a
criminal case it is sought to cross-examine a H State witness on a statement which is
privileged because it was made by the witness to an attorney in the course of obtaining
professional legal advice; the witness refuses to waive the privilege; and the trial Judge
is asked to relax the rule of privilege on the ground of an allegation made on behalf of
the accused that such cross-examination might assist them in defending the charges
against them. Whether in such I circumstances the rule of privilege can ever be relaxed,
as a matter of principle, need not be decided in this case. I shall assume that it can. But,
on that assumption, I have no doubt that the question of the relaxation of the rule can
arise only in the context of the exercise of a discretion by the trial Judge, based on a
consideration of all the information relevant to the question. The mere allegation on
behalf of J the accused that cross-examination on the statement may enure to their
1988 (1) SA p887

BOTHA JA

A benefit, without more, cannot, I conceive, be sufficient to enable the discretion of the
trial Judge to come into play. Minimum requirements, in my view, would include
information as to how the statement came to be in the possession of the legal
representatives of the accused; whether the legal advice sought related to the trial itself,
and if so, in what way; what the contents of the statement were (the statement could be
B handed up to the trial Judge for his perusal); and, perhaps most importantly, in what
manner and with what prospects of success the cross-examination could avail the
accused in countering the charges against them. I do not see how the trial Judge can be
called upon to assess the relative weight of the relevant conflicting principles of public
policy without being supplied with information of the kind I have C mentioned.

Having regard to the manner in which this aspect of the case was handled on behalf of
the accused in the Court a quo , as described earlier, I am of the view that insufficient
information was placed before the trial Judge in order to enable him to exercise a
discretion in favour of the accused by relaxing the rule of privilege and allowing D the
cross-examination of Manete on his statement. Although it appeared that the attorney to
whom Manete had made the statement was also the attorney acting for the accused at
the trial, it was not disclosed whether he was acting for the accused at the time when
Manete consulted him and, if so, what the relationship was between Manete and the
accused and how it came about that the attorney was advising a State witness E while
acting for the accused. The advice that Manete sought was related to the trial itself, so it
was said, but it was not disclosed in what way. The contents of his statement were not
made available to the trial Judge. The meagre information about the contents of the
statement which was conveyed to the trial Judge, as mentioned earlier, did not F
constitute a sufficient basis for suggesting that his evidence in Court was perjured, or
that he was testifying under duress. In short, on an overall view of the information
placed before the trial Judge it was not made possible for him to form an opinion as to
whether it would have been necessary or right to relax the rule of privilege or even
whether such relaxation might have tended to point to the innocence of the G accused
implicated by Manete (Nos 7 and 8). There was no basis for thinking so; it was a matter
of pure speculation. Consequently it cannot be found that the trial Judge erred in
disallowing the cross-examination in question.

Before leaving this topic I should revert briefly to Barton's case supra . It is
distinguishable on the facts but, apart from that, insofar H as Caulfield J purported to lay
down a general principle which could be thought to apply to the present case, I
respectfully do not agree with it. My reasons for saying that appear, I hope, from what
has been said above. I do not find it necessary to discuss the later references to, or
comments upon, Barton's case to which we have been referred or which I I have been
able to trace, since these do not appear to me to be helpful in the context of the present
case (see eg Phipson (loc cit ); Cross (loc cit ); Teasdale 1973 New Law Journal 51; Allan
1987 Criminal Law Review 449; Baker v Campbell (supra per Gibbs CJ at 395); R v
Dunbar and Logan (1983) 138 DLR (3rd) 221 at 251).

J For these reasons the second ground of appeal fails.


1988 (1) SA p888

BOTHA JA

A I turn now to the first ground of appeal, referred to by the trial Judge as 'the
question of causality'. For the purpose of dealing with this question it is necessary to set
out the relevant facts. For convenience I shall first sketch the background to the events
of 3 September 1984 and then describe the events themselves without reference to the
roles played therein by the individual accused; this will be B dealt with later. In what
follows I shall not deal separately with the evidence of each of the witnesses whose
evidence was analysed and accepted by the trial Court. Instead, I shall attempt to paint
a composite picture gleaned from the facts found proved by the trial Court in its analysis
of the evidence of the individual witnesses.

C The town council of Lekoa, of which the deceased was a member and the deputy
mayor, is a regional Black local authority established under s 2 of the Black Local
Authorities Act 102 of 1982. Its area of jurisdiction includes Sharpeville. During June
1984 the council adopted a capital expenditure programme with a view to improving and
expanding the D amenities of the inhabitants in its area. To finance the programme it
was decided to increase the service levies payable by the inhabitants by R5,50 or R5,90
per house per month. The increases were planned to come into effect on 1 September
1984. The deceased was known to have favoured the plan and to have pressed for its
implementation. Many of the people E of Lekoa were strongly opposed to the increases.
Protest meetings were held and it was decided that on 3 September 1984 (which was a
Monday) the people of Lekoa would stay away from work and march to the offices of the
council to protest against the increases. On that day rioting and violence on a massive
scale erupted throughout the area of Lekoa. The cause, or at least a major cause, of the
riots was the increase of the F service levies. Hordes of people went on the rampage
through the streets of the townships comprising Lekoa. The houses of town councillors
and many other buildings were stoned and burnt down. The deceased and two other
councillors were murdered on that day, and also a councillor of the neighbouring area of
Evaton. A senior police officer with many G years' experience of riot control described
the events as the most violent, the most widespread, and also the best-organised riots
that he had ever experienced.

The deceased lived in Nhlapo Street, Sharpeville. His house was one house removed
from the intersection of Nhlapo Street with Zwane Street. I shall refer to the house
between the deceased's house and Zwane Street H as the corner house. On the other
side of the deceased's house, in Nhlapo Street, was the house of one Maile. In Zwane
Street, near to the intersection with Nhlapo Street, was the house of one Radebe. The
yard of that house was used as a place for doing repair work on motor cars. On the day
in question a number of motor vehicles were parked there.

I At about 7 o'clock in the morning a large crowd gathered in Zwane Street. They were
singing and rowdy. They moved to the intersection with Nhlapo Street, then into Nhlapo
Street and towards the house of the deceased. They pelted the deceased's house with
stones. At that stage members of the police arrived on the scene in large vehicles. They
J dispersed the crowd by using teargas and firing rubber bullets. After the
1988 (1) SA p889

BOTHA JA

A crowd had scattered, the police spoke to the deceased in front of his house and tried
to persuade him to leave. He refused to do so. He was armed with a pistol. The police
left the scene.

After the departure of the police, the crowd regrouped themselves. About 100 people,
men and women, gathered together in Zwane Street. They B were singing 'freedom
songs'. Some of them went into the yard of Radebe's house and siphoned off petrol from
the vehicles parked there into containers which they took along with them. The mob
moved along Zwane Street and turned into Nhlapo Street. The vanguard ran towards the
deceased's house and hurled stones at it, breaking the windows. The deceased was in
the house, together with Mrs Dlamini. Members of the C crown shouted repeatedly (I
quote from the evidence on the record, as it was interpreted in Afrikaans): 'Laat ons
breek, laat ons breek, die huis breek en aan die brand steek.' The deceased and Mrs
Dlamini opened the door of the house and went outside to confront the mob. Some of
them shouted: 'Ons is op soek na jou, Dlamini, die "sell-out", wat met Blankes baie te
doen het, of met hulle eet.' The deceased and Mrs D Dlamini went back into the house
and closed the door. The deceased fired a shot into the crowd, hitting one of them. This
angered the mob, which became extremely aggressive. A woman in the crowd, who was
standing in front of the house, shouted repeatedly: 'Hy skiet op ons, laat ons hom
doodmaak.' E

In the meantime some members of the crowed were busy making petrol bombs in the
yard of the corner house. They poured petrol from the containers they had brought along
into bottles, some of which also contained sand. The bottles, or bombs, were passed on
to other members of the mob who were told to throw them into the deceased's house.
This F was done, and the house caught fire. Mrs Dlamini fled and succeeded in reaching
safety in the neighbouring house of Maile. The deceased's house was then surrounded by
the rioters. Petrol was poured over the kitchen door and it was set alight. The deceased
tried to extinguish the flames. The deceased's car was pushed out of its garage and into
Nhlapo Street, where it was turned on its side and set on fire. Petrol bombs were G
thrown into the house from all sides.

The deceased emerged from the house holding his pistol. The crowd in his immediate
vicinity retreated. The deceased ran in the direction of Maile's house. Just as he reached
the fence between the two yards, which consisted of a couple of slack strands of wire, he
was set upon by a H small group of two or three or more members of the mob. A scuffle
ensued, during which the deceased was dispossessed of his weapon. As he was crossing
the fence, he was felled by a stone which was thrown by a man standing a couple of
paces away and which struck him on the head. As he was lying on the ground, stones
thrown by the mob rained down on him. I Some members of the mob went up to him
and struck his head with stones. When he was lying quite motionless, he was dragged
into the street. Attempts were made to place him on his burning motor car, but each
time he slid off it. Petrol was poured over him and he was set alight. A woman shouted
that the people should not burn him. Another woman slapped J her in the face. As the
deceased was left to burn, the crowd, which
1988 (1) SA p890

BOTHA JA

A still numbered 100 or more, sang loudly and gave the Black Power salute. They then
started to move off in the direction of the Administration Board's buildings.

When the police arrived on the scene again at about 9 o'clock, they found the
deceased's house and motor car and his body still smouldering. The deceased was dead.
B

A medical post-mortem examination revealed that the deceased was still alive when he
was set alight, but that he had sustained two sets of injuries, each of which was fatal by
itself. The one set of injuries consisted of severe wounds to the head caused by blows.
The deceased would have died of these injuries even if he had not been set alight. C The
other set of injuries consisted of burns all over his body. He would have died as a result
of these burns even if he had not sustained the head injuries.

I turn now to the role played by each of the accused, as found by the trial Court, in the
gruesome events outlined above. Although accused Nos 5 and 6 are not directly involved
in the present enquiry, it will be convenient to include them in this survey. D

Accused No 1 . He was one of the persons who grabbed hold of the deceased near the
fence between the houses of the deceased and Maile, and who wrestled with the
deceased for the possession of his pistol. He was also the person who threw the first
stone at the deceased as he was crossing the fence, which struck him on the head and
felled him. (The E first-mentioned finding was based on the observations of Mabuti, and
the second on the observations of Mrs Dlamini. It was argued on behalf of accused No 1
that there was a conflict between the evidence of Mabuti and that of Mrs Dlamini which
could not be resolved, since Mabuti did not see the throwing of the stone by accused No
1 and Mrs Dlamini did F not see accused No 1 grappling with the deceased. The trial
Court considered this alleged conflict fully and carefully, as appears from the judgment
of the trial Judge, and found that it did not exist. In my view the reasoning of the trial
Court is unassailable. The fallacy in the argument for the accused is that it presupposes
that either or both of the witnesses must be untruthful or unreliable simply because their
G observations did not coincide. Such an approach to the evidence is unsound. Mabuti
and Mrs Dlamini were making their observations of fast-moving events from different
vantage points, and there is no improbability inherent in postulating that accused No 1,
after having grappled with the deceased for the gun, moved off some paces and from H
there threw a stone at him. Moreover, as the trial Judge pointed out, there was other
evidence confirming the correctness of the observations of both witnesses. Some time
after the events accused No 1 took the police to the house of accused No 3 with a view
to finding the deceased's pistol. At that time the police did not know of accused No 3's
involvement in the affair. In fact accused No 3 was in possession of the deceased's
pistol, which he handed over to the police. This I evidence, coupled with accused No 1's
false denial of it, showed that accused No 1 knew that accused No 3 had obtained
possession of the pistol from the deceased and this confirms Mabuti's evidence that
accused No 1 was one of the group who wrestled with the deceased for the possession of
the pistol. On the other hand, after the deceased had been felled by the first stone
thrown at him, Mrs Dlamini heard him exclaim: J 'Ja-ja, wat maak
1988 (1) SA p891

BOTHA JA

A jy?' 'Ja-ja' was the nickname of accused No 1, but Mrs Dlamini did not know that,
although she knew accused No 1. This confirms her evidence that accused No 1 threw
the first stone that felled the deceased. In the result there is no reason for differing from
the trial Court's findings that accused No 1 grappled with the deceased for the
possession of his pistol and that he was the man who threw the stone that felled the
deceased.) B

Accused No 2 . He was one of the mob which stoned the deceased's house before the
first arrival of the police on the scene. He himself threw a stone which struck a window
on the right-hand side of the house and broke it. When the police arrived and dispersed
the crowd, he was affected by the teargas used by the police. He went into a yard and
washed his face. After the crowd had re-assembled, he rejoined it in C front of the
deceased's house. He saw that the deceased was standing outside his house. He saw
that the house was on fire and that it was surrounded by many people. He threw a stone
at the deceased. It struck the deceased on his back. When the police arrived again, he
ran away. (The facts recited above appear from a confession made by accused No 2, D a
letter written by him from prison to the Minister of Justice, and statements made by him
to a police lieutenant in the course of pointing out certain places.)

Accused No 3 . He was one of the small group of men who caught hold of the deceased
as he was running in the direction of Maile's house, and who wrestled with him for
possession of his pistol. He was the man who E in fact succeeded in taking the
deceased's pistol away from him. (These findings of the trial Court rested on inference.
There was no direct evidence that accused No 3 was on the scene. Neither Mabuti nor
Mrs Dlamini knew accused No 3 and neither could identify him. The validity of the trial
Court's inference was challenged in this Court. In brief, the evidence against accused No
3 was as follows. On 9 November 1984 F Detective Sergeant Wessels was taken by
accused No 1 to the house of accused No 3. Wessels did not know where accused No 3
lived; he was directed how to get there by accused No 1. Accused No 3 was pointed out
by accused No 1 to Wessels as the person who was presumably in possession of a pistol.
Wessels asked accused No 3 whether he had a firearm in his possession and the reply
was affirmative. Accused No 3 G took a pistol from between some cardboard boxes,
through an opening in the ceiling of his house, and handed it to Wessels. The pistol was
exh 1 in the Court a quo . Accused No 3 explained to Wessels that he had taken the
pistol away from some children who were involved in riotous activities in the vicinity of
the deceased's house on 3 September 1984. H The pistol, exh 1, was proved to have
belonged to the deceased. Apart from the fact that he admitted handing a pistol to
Wessels, accused No 3 denied the substance of Wessels' evidence. He said that he had
told Wessels that he had obtained the pistol only on 4 September 1984, when he had
come across a couple of youths arguing about the pistol, which, I one of them said, had
been picked up in a scrap-yard. He denied that exh 1 was the pistol that he had handed
over to Wessels. He was unable to offer any explanation as to how accused No 1 could
have known that he was in possession of the pistol. The trial Court accepted the
evidence of Wessels and found that accused No 3 was an untruthful witness. On a
perusal of the record I can find no warrant for disagreeing with the J trial Court's
1988 (1) SA p892

BOTHA JA

A assessment of the witnesses. Having regard to the nature of the lies told by accused
No 3 in his evidence, and particularly to the explanation that he gave to Wessels as to
when and where he had obtained the pistol, coupled with his professed inability to
explain how accused No 1 would have known that he had the pistol, I am of the view
that the trial Court was fully justified in drawing the inference, as being the B only
reasonable inference, that accused No 3 was the person who had dispossessed the
deceased of his pistol.)

Accused No 4 . She was one of the crowd that converged on the deceased's house
before the first arrival of the police. She was given a placard to carry aloft on which was
written 'Arena Shelete' ('Ons het C nie geld nie'). When the police dispersed the crowd,
she was struck on the head by a rubber bullet fired by the police. After the crowd had re-
assembled, she was again part of it. She was standing in front of the deceased's house
when he fired a shot, hitting someone in the crowd. It was accused No 4 who then
shouted repeatedly: 'Hy skiet op ons, laat ons D hom doodmaak.' Subsequently, when
the deceased was set alight in the street and a woman remonstrated with the crowd not
to burn him, it was accused No 4 who slapped this woman in the face. (The argument on
behalf of accused No 4, referred to in the last paragraph of the trial Judge's judgment on
the application for leave to appeal as mentioned earlier, and repeated in this Court, that
there was no proof that anyone in the E crowd had heard what the accused was shouting
is without substance. Mabuti, who heard the accused's shouts, was standing at the time
on the far side of Nhlapo Street, opposite Maile's house. If he could hear what accused
No 4 was shouting, there can be no doubt that other members of the mob, who were
much closer to her, must also have heard the words F shouted. Whether anyone reacted
upon her instigation is a question relating to the general issue of causation, which will be
dealt with later.)

Accused Nos 5 and 6 . They were part of the vanguard of the crowd which ran towards
the deceased's house and hurled stones at it, after the crowd had been dispersed and
had re-assembled. They were not seen to have thrown stones themselves, but they were
the leaders of the vanguard G in the sense that they were running right in the front, with
the others, who were throwing the stones, following. Accused No 6 was the person who
was struck by the bullet fired by the deceased. He was hit in the leg.

Accused No 7 . He was part of the stone-throwing crowd. He was amongst the people
who made petrol bombs in the yard of the corner house. He was H the man who poured
petrol onto the kitchen door of the deceased's house and set it alight. He was one of
those who pushed the deceased's motor car from the garage into the street.

Accused No 8 . When the crowd had re-assembled, he came across Manete and said to
him: 'Hoekom is jy nie saam met die mense nie? Hoekom baklei I jy nie? Hoekom neem
jy nie deel daaraan nie? Want ons baklei vir die "community"?' He was one of those who
made petrol bombs in the yard of the corner house. He handed out petrol bombs to the
mob and commanded them to surround the deceased's house and set it on fire. He
showed people how and where to throw petrol bombs into the deceased's house. The
people obeyed his instructions. He assisted in pushing the J deceased's car into the
street. Before the deceased was
1988 (1) SA p893

BOTHA JA
A assaulted in Maile's yard, he (accused No 8) was in Maile's yard, carrying stones in his
hand. After the deceased had been set on fire in the street, accused No 8 said: 'Kom
julle, nou gaan ons na die Munisipaliteit se jaart.'

I proceed to consider the basis upon which the trial Court convicted accused Nos 1, 2,
3, 4, 7 and 8 of murder. The trial Court found that the mob intended to kill the
deceased, and that the intention to kill B had manifested itself at the time when his
house was set alight. The following passage in the judgment of the trial Judge reflects
the approach of the trial Court which, in my view, was fully justified on the evidence:
'Daar kan geen twyfel bestaan dat die skare die opset gehad het om oorledene te dood
op die stadium toe sy huis aan die brand gesteek is nie want elkeen daar het toe besef
dat òf oorledene verbrand òf hy vlug C uit die huis en as hy vlug moet hy aangeval word.
Toe hy wel gevlug het, is hy onmiddellik ontwapen en daarna met klippe bestook tot hy
daar roerloos gelê het en om te verseker dat hy wel dood was, is sy liggaam na buite
gesleep en aan die brand gesteek.'

The same approach appears from the following passage in which the trial D Judge
explained why accused Nos 5 and 6 were found not guilty of murder:
'Die Hof kan nie bo redelike twyfel bevind dat (toe) hierdie skare... alreeds die opset
gehad het om oorledene te gaan dood toe hulle die eerste keer op pad na sy huis toe
was nie. So 'n bevinding is ook nie bo redelike twyfel ons insiens bewys tydens
hergroepering tot en met die gooi van klippe na die oorledene se huis nie. Op die
stadium egter toe E oorledene se huis aan die brand gesteek word, is dit duidelik dat die
opset was om oorledene ook te verbrand. Dit het almal besef, dat tensy oorledene vlug
hy sou verbrand, en as hy vlug sou hulle hom onmiddellik in die hande kon kry en
aanrand, soos dit ook geskied het, totdat hy oënskynlik dood was en daarna verbrand
is.'

F There was no evidence that accused Nos 5 and 6 had taken any part in the activities of
the mob after the deceased's house had been set on fire. Consequently the trial Court
found that it had not been proved beyond reasonable doubt that accused Nos 5 and 6
had the intention to kill the deceased.

In the case of all the other accused, however, ie Nos 1, 2, 3, 4, 7 G and 8, the trial
Court found that each of them had the intention to kill the deceased. It found further
that all these accused had actively associated themselves with the conduct of the mob,
which was directed at the killing of the deceased. On the evidence neither of these
findings can be faulted. In the case of each of these accused, the conduct described
above plainly proclaimed an active association with the H purpose which the mob sought
to and did achieve, viz the killing of the deceased. And from the conduct of each of these
accused, assessed in the light of the surrounding circumstances, the inference is
inescapable that the mens rea requisite for murder was present.

In his judgment the trial Judge, dealing with the liability of the six I accused in
question for murder, quoted what was said in S v Williams en 'n Ander 1980 (1) SA 60
(A) at 62H - 63H in regard to 'mededaders' and 'medepligtiges' (perpetrators and
accomplices or, as some would have it, principals and accessories) and, adopting the
phraseology used in that case, stated the trial Court's conclusions in respect of these
accused J in the following terms:
1988 (1) SA p894

BOTHA JA
A 'Beskuldigdes nrs 1 en 3 het oorledene ontwapen en sy pistool van hom geneem. Dit
moes gedoen word omdat oorledene 'n bedreiging vir die skare ingehou het. Hulle daad
vergemaklik die taak van die skare om die oorledene daarna met klippe te gooi en hom
dood te maak. Nommer 1 het self 'n klip na oorledene gegooi wat oorledene op sy kop
agter getref het. Hy is dus nie alleen 'n medepligtige nie, maar ook 'n mededader. B
Nommer 2, soos reeds aangedui, het ook die misdaad bevorder deur 'n klip na oorledene
te gooi. Nommer 4 beskuldigde hits die skare aan om oorledene te dood en sy
vereenselwig haar met die verbranding van die oorledene. Nommers 7 en 8 die bevorder
die pleging van die misdaad en verleen hulp aan die skare wie se opset duidelik blyk om
die oorledene te dood deur aktief deel te neem aan die verbranding van oorledene se
huis.'

It is more usual and, in my view, with respect, more appropriate to C deal with the
liability of these accused for murder on the basis of what is called in our practice
'common purpose', and it is on that basis that I proceed to discuss the matter. It is
implicit in the findings of the trial Court, I think, but in any event quite clear on the
evidence, that each of these accused shared a common purpose to kill the deceased with
D the mob as a whole, the members of which were intent upon killing the deceased and
in fact succeeded in doing so. And, as I have pointed out, all these accused by their
conduct actively associated themselves with the achievement of the common purpose
and each of them had the requisite mens rea for murder.

This is the setting in which consideration must be given to the E argument on behalf of
these accused that their convictions of murder were wrong because the State had failed
to prove that their conduct caused or contributed causally to the death of the deceased.
In the case of some of these accused it is perhaps debatable whether a causal
connection between the conduct of each, individually, and the death of F the deceased
had indeed not been proved, but in the case of others it must be accepted without
doubt, in my opinion, that no such causal connection can be found to have been proved.
This is particularly obvious in the case of accused Nos 2 and 4, as will appear from what
has been said earlier in regard to their conduct. I shall therefore assume for the
purposes of my judgment, that it has not been proved in the case G of any of the six
accused convicted of murder that their conduct had contributed causally to the death of
the deceased.

Thus the question that must be faced squarely is this: in cases of the kind commonly
referred to in our practice as cases of 'common purpose', in relation to murder, is it
competent for a participant in the common H purpose to be found guilty of murder in the
absence of proof that his conduct individually caused or contributed causally to the death
of the deceased? In recent years much uncertainty seems to have arisen around this
question. This is regrettable, since cases involving a common purpose, as understood in
our practice, are of such frequent occurrence that it would probably not be an
overstatement to say that they arise I practically daily in the criminal courts of our
country. There ought not to be uncertainty in this area of the criminal law, and it seems
to me to be imperative that a clear answer be given to the question that I have posed.
Unfortunately, the uncertainty has been created by a number of decisions of this Court. I
shall have to deal with them. The uncertainty has been heightened by a mass of legal
literature which has J been produced on this
1988 (1) SA p895

BOTHA JA

A topic over many years, contained in large numbers of articles in legal journals, in
doctoral theses, and in textbooks. While readily acknowledging the great assistance that
I have gained from a study of the literature, I have decided not to deal pertinently with
the various divergent and often conflicting opinions and views expressed by particular
authors. To do so would turn this judgment into an academic B treatise and would defeat
my object, which is to attempt to clarify the law as it is applied in practice, as briefly as
possible, and with a minimum of references to legal subtleties and jurisprudential
philosophising. When I do refer, in what follows, to the views of the learned authors,
without identifying the author or authors concerned, I do so solely in an effort to keep
the discussion brief and certainly not C out of disrespect for the value of their
contributions.

The best way to approach the problem, I consider, is to examine how the question of
causation in cases of common purpose has been dealt with in the decisions of this Court,
and to divide the enquiry into two stages, viz the period before the judgment in S v
Thomo and Others 1969 (1) SA 385 (A)D , and the period thereafter.

Before 1969 this Court, in its judgments in cases of common purpose, did not
pertinently address the question of causation, speaking generally. An exception was the
minority judgment of Schreiner JA in R v Mgxwiti 1954 (1) SA 370 (A) at 381G - 383B,
which was concerned with a so-called case of 'joining in'. That type of situation can be
left out E of consideration, for it does not arise on the facts of this case: here, each of
the accused (ie the six convicted of murder) became an active participant in the
pursuance of the common purpose prior to the first fatal wounds being inflicted on the
deceased. In the reported cases before 1969 clear instances can be found where this
Court upheld the F conviction of an accused for murder, on the basis of common
purpose, where no causal connection had been proved between the conduct of the
accused and the death of the deceased. I shall mention three such cases. The first is the
majority judgment in Mgxwiti's case supra . I had occasion to analyse that judgment in S
v Khoza 1982 (3) SA 1019 (A) at G 1051E - 1052A, and there is no need to repeat
what was said there. The second is R v Dladla and Others 1962 (1) SA 307 (A) at
311A - E, which was also referred to in Khoza's case supra at 1052B. In both Mgxwiti's
case and Dladla's case supra , the Court was dealing with an accused who had
participated in a murderous mob attack on the deceased, but whose H own conduct was
not shown to have contributed causally to the deceased's death. There is a close
resemblance between the facts of those two cases and the facts of the present case. The
third case to which I would refer was of a somewhat different nature. It was of a kind
which occurs more frequently in practice, but in which the principle relating to causation
in the context of common purpose must be the same. The case is S v I Malinga and
Others 1963 (1) SA 692 (A) . Five accused had set out in a motor car to commit the
crime of housebreaking with intent to steal and theft. Accused No 4 was armed, to the
knowledge of the others. On leaving the scene, the car in which the accused were
travelling was overtaken by a police car which tried to stop the car of the accused. J
Accused No 4 fired a shot and killed a policeman. An appeal against the
1988 (1) SA p896

BOTHA JA

A convictions for murder of the other four accused was dismissed. Holmes JA (with Steyn
CJ and Williamson JA concurring) pointed out at 694F that
'the liability of a socius criminis is not vicarious but is based on his own mens rea ',

and went on to say at 695A - B:


B 'In the present case all the accused knew that they were going on a housebreaking
expedition in the car, and that one of them was armed with a revolver which had been
obtained and loaded for the occasion. It is clear that their common purpose embraced
not only housebreaking with intent to steal and theft, but also what may be termed the
get-away. And they must have foreseen, and therefore by inference did foresee, the C
possibility that the loaded firearm would be used against the contingency of resistance,
pursuit or attempted capture. Hence, as far as individual mens rea is concerned, the
shot fired by accused No 4 was, in effect, also the shot of each of the appellants .'

(My italics.) In my view, on the facts of that case it was impossible to find any causal
connection between any conduct of the appellants and the death of the policeman. The
concluding words in the passage of the D judgment of Holmes JA, quoted above, which I
have emphasised, constitute a clear recognition, in my opinion, of the principle that in
cases of common purpose the act of one participant in causing the death of the deceased
is imputed, as a matter of law, to the other participants (provided, of course, that the
necessary mens rea is present).

E In Thomo's case supra at 399 in fine it was stated in general terms, which included a
reference to a socius , that on a charge of murder it was necessary to prove that the
accused was guilty of unlawful conduct which caused or contributed causally to the death
of the deceased. In Khoza's case supra at 1056D - 1057B I expressed the view that,
insofar as F the statement related to a socius , ie a participant in a common purpose, it
was obiter and in conflict with authority. This view is borne out, I consider, by the cases
to which I have referred above. In addition, there is a further case to which I would now
refer, which is most interesting. It is S v Madlala 1969 (2) SA 637 (A) . Thomo's case
was reported before Madlala's case - in 1969 (1) SA 385 - but in fact the G judgment in
Madlala's case was delivered on 21 November 1968, before the judgment was delivered
in Thomo's case, on 3 December 1968. Steyn CJ was a party to both judgments, and
Wessels JA, who wrote the judgment in Thomo's case, concurred in the judgment in
Madlala's case. In the latter case Holmes JA said at 640F - H:
'It is sometimes difficult to decide, when two accused are tried H jointly on a charge of
murder, whether the crime was committed by one or the other or both of them, or by
neither. Generally, and leaving aside the position of an accessory after the fact, an
accused may be convicted of murder if the killing was unlawful and there is proof -
(a) that he individually killed the deceased, with the required dolus , eg by shooting
him; or
I (b) that he was a party to a common purpose to murder, and one or both of them
did the deed; or
(c) that he was a party to a common purpose to commit some other crime, and he
foresaw the possibility of one or both of them causing death to someone in the execution
of the plan, yet he persisted, reckless of such fatal consequence, and it occurred; see S
v Malinga and J Others 1963 (1) SA 692 (A) at 694F - H and 695; or
1988 (1) SA p897

BOTHA JA
A (d) that the accused must fall within (a) or (b) or (c) - it does not matter which, for
in each event he would be guilty of murder.'

In this formulation of the legal position relating to common purpose it is quite clear, in
my opinion, that there is no room for requiring proof of causation on the part of the
participant in the common purpose who did not 'do the deed' (ie the killing). This fortifies
my view that it B was not intended in Thomo's case to lay down that a causal connection
had to be established between the acts of every party to a common purpose and the
death of the deceased before a conviction of murder could ensue in respect of each of
the participants.

After 1969 this Court continued to deal with cases of common purpose C without
adverting to the question of causation. Convictions of murder were upheld in cases
where the accused's own acts, although showing an active association with the
furtherance of common purpose, mostly to rob, where not shown to have contributed
causally to the death of the deceased. Two examples, following closely upon Thomo's
case supra , are to be found in S v Williams en 'n Ander 1970 (2) SA 654 (A) at 658 -
9, D and S v Kramer en Andere 1972 (3) SA 331 (A) at 334. Jumping some years, the
same pattern appears in more recent decisions of this Court: see eg S v Shaik and
Others 1983 (4) SA 57 (A) - note especially at 65A: '... the act of one becomes the act
of the other if that act is done in pursuit of a common design ' (my emphasis); S v
Talane 1986 (3) SA 196 (A)E at 206E - 207A; and S v Mbatha en Andere 1987 (2) SA
272 (A) at 282B - 284C. Of particular interest is S v Nkwenja en 'n Ander 1985 (2) SA
560 (A) , which was a case of culpable homicide. The two appellants in that case had
decided to rob the two occupants of a parked motor car. They simultaneously opened
two of the doors of the car, one on each F side, and assaulted the occupants, one of
whom died. It could not be established which one of the two appellants inflicted the
injuries on the occupant who was killed. The trial Court found that dolus was not proved,
but culpa was, and convicted both appellants of culpable homicide. On appeal this Court
was divided on the question whether, on the facts, culpa had been proved against the
appellants. The majority of G the Court found that it had, and sustained the convictions.
Jansen JA, delivering the judgment of the majority of the Court (Joubert JA and
Grosskopf AJA concurring), said the following at 573B - D:
'Die appellante het saamgewerk met die verwesenliking van die gesamentlike
oogmerk. Op grond van die voorgaande blyk dit dat beide H gehandel het met culpa ten
opsigte van die dood wat ingetree het. Strafbare manslag is die wederregtelike, nalatige
doodslag van 'n ander en behels in die algemeen die vereiste van 'n kousale verband
tussen 'n handeling van die beskuldigde en die dood. In die onderhawige geval is dit
onseker watter appellant die dodelike geweld toegepas het en sou dit moeilik wees om
aan die een of die ander van die appellante 'n handeling toe te skryf wat conditio sine
qua non van die dood was. Maar in ons I praktyk word in gevalle soos die onderhawige,
waar daar voorafbeplanning was en dan deelneming aan verwesenliking van die
gesamentlike oogmerk, nie altyd streng aan die vereiste van kousaliteit (sine qua non )
gekleef ten einde die een deelnemer strafregtelik aanspreeklik te stel vir 'n gevolg van
die handeling van 'n ander deelnemer nie. Sonder om die juiste grondslag van hierdie
aanspreeklikheid uit te stip wil dit my J voorkom dat albei appellante wel aan strafbare
manslag skuldig is....'
1988 (1) SA p898

BOTHA JA

A In my opinion these remarks constitute once again a clear recognition of the principle
that in cases of common purpose the act of one participant in causing the death of the
deceased is imputed, as a matter of law, to the other participants. The reference to
'voorafbeplanning' is not significant, for it is well established that a common purpose
need not be derived from an antecedent agreement, but can arise on the spur of B the
moment and can be inferred from the facts surrounding the active association with the
furtherance of the common design. Nor do I consider that the words 'altyd' and 'streng'
really qualify the effective application of the general principle.

I turn now to a number of cases, decided in this Court in the early C eighties, which
have given rise to uncertainty.

In S v Williams en 'n Ander 1980 (1) SA 60 (A) , Joubert JA explained the difference
between liability as a co-perpetrator ('mededader' or principal) and liability as an
accomplice ('medepligtige' or accessory) and said, in regard to the latter, at 63E - F:
D 'Volgens algemene beginsels moet daar 'n kousale verband tussen die medepligtige
se hulpverlening en die pleging van die misdaad deur die dader of mededaders bestaan.'

This remark has given rise to the question whether, in relation to cases of common
purpose, some kind of causal connection is required to be proved between the conduct of
a particular participant in the common E purpose and the death of the deceased before a
conviction of murder can be justified in respect of such a participant. In my view the
clear answer is: No. It seems clear to me that the Court in Williams' case was not
dealing with the law relating to common purpose at all. The only reference to common
purpose in the judgment appears at 62F - G where, in F dealing with the facts, Joubert
JA said that it was not to be accepted that the accused had entered the train coach with
a common purpose to commit a crime in which the weapons would be used which were
in fact used later to assault the victim. In my view the Court in Williams' case did not
intend to supplant, qualify, or detract from the substance of the practice of the Courts in
relation to common purpose. I expressed G this view in Khoza's case supra at 1054C. It
has turned out to be correct, having regard to the manner in which cases of common
purpose have continued to be dealt with in the decisions of this Court subsequent to
Williams' case, as mentioned above. In the present case I am dealing with the position of
the six accused who have been convicted H of murder solely on the basis of common
purpose. Accordingly there is no need for me to enter upon a discussion of the purport of
the above-quoted remark in connection with the liability of an accessory, or of the view
now held by some authors that in cases of murder there is no room for basing liability on
'medepligtigheid'. For practical purposes, in applying the law relating to cases of
common purpose, the judgment in I Williams' case can safely be left out of consideration
altogether.

In S v Maxaba en Andere 1981 (1) SA 1148 (A) Viljoen JA, having referred to
Williams' case supra , said at 1155E - G:
'Ek wil met eerbied saamstem met Burchell en Hunt SA Criminal Law and Procedure
band 1 te 363 dat daar geen towerkrag opgesluit is in die sogenaamde leerstuk van
"common purpose" nie. Soos uit die passasie J hierbo uit Williams se
1988 (1) SA p899

BOTHA JA
A saak blyk, moet, waar daar deelneming aan 'n misdaad is, elkeen van die
deelnemers voldoen aan al die vereistes van die betrokke misdaadomskrywing voordat
hy as mededader skuldig bevind kan word. Moord is 'n gevolgsmisdaad. Indien die Staat
mededaderskap wil bewys, moet hy bewys, nie alleen dat elke deelnemer die nodige
opset gehad het om die slagoffer te dood nie, maar ook dat sy aandeel bygedra het,
daadwerklik of psigies, tot veroorsaking van die dood.'

B With great respect, I do no agree with the tenor and effect of these remarks. The
learned Judge's approval of the statement by Burchell and Hunt that there is no magic
about the 'doctrine' of common purpose, as a basis for his conclusion that a causal
connection between the conduct of the perpetrator and the death of the deceased must
be proved, rests, in C my respectful opinion, upon a misconception of what the learned
authors sought to convey by that statement. A reading of the passages at 363 - 5, which
constitute the context in which the statement appears, shows that the learned authors
were concerned with the theme that the liability of a party to a common purpose was not
vicarious but was founded on his own mens rea . This theme was developed apropos of
the view expressed in the D earlier cases that liability in respect of common purpose
rested on an implied mandate. But the learned authors certainly did not intend to convey
that it was necessary to prove a causal link between the conduct of a party to the
common purpose and the death of the deceased. On the contrary, they said, in
conformity with the case law referred to above, at 364: E
'Association in a common illegal purpose constitutes the participation - the actus reus .
It is not necessary to show that each party did a specific act towards the attainment of
the joint object. Association in the common design makes the act of the principal
offender the act of all.'

And in a footnote they added: F


'Moreover, it is not necessary to show that there was a causal link between the
conduct of each party to the common purpose and the unlawful consequence, see above,
p 352.'

The references to Burchell and Hunt above are to the first edition; in the second edition,
see at 430 - 5. The learned authors have retained the G 'no magic' statement referred to
above, which is perhaps unfortunate, since it tends to suggest that a question mark
should be placed against the manner in which the Courts have dealt with cases of
common purpose in recent times, which I think is unwarranted. I should add that I
myself see no 'magic' in the practice of the Courts - but I do see a lot of common sense
and expediency in it. Reverting to the remarks of H Viljoen JA quoted above, he referred
to a causal contribution to the death of the deceased, 'daadwerklik of psigies', and at
1156F - G he again mentioned a 'psigiese bydrae... tot die dood van die oorledene', thus
adopting the approach of some authors. With respect, it seems to me that the concept of
'psychological causation' is so nebulous that it is practically incapable of effective
application. In any event, I Viljoen JA's requirement of a causal connection in cases of
common purpose is clearly in conflict with the great weight of authority constituted by
the decisions of this Court, both before and after Maxaba's case, as discussed above.
Finally, the requirement of a causal connection in the quoted remarks of Viljoen JA was
clearly an obiter J dictum , as he himself pointed out at 1156F - G. In the result, the
1988 (1) SA p900

BOTHA JA

A judgment in Maxaba's case, insofar as it relates to the question of causation, can


safely be ignored in the future treatment of cases of common purpose.

In S v Khoza 1982 (3) SA 1019 (A) the judgments of Corbett JA and myself reflect a
difference of opinion as to the liability of an accused B 'joining in' in an assault upon a
person who has already been fatally wounded. As I have indicated, that problem does
not arise from the facts of the present case. Consequently no more need be said about
it. I would merely point out that in the passage in the judgment of Corbett JA at 1036F -
1037A, in which he referred to common purpose, there is nothing, in my respectful
opinion, which militates against the views I have C expressed above.

In S v Daniëls en 'n Ander 1983 (3) SA 275 (A) the problems of causation discussed
in three of the judgments (those of Jansen JA, Trengove JA and Van Winsen AJA) in
respect of accused No 1 in that case arose because of a finding by the learned Judges
that a common purpose between the two accused in that case had not been proved.
These problems D are accordingly not relevant in the present case. In the judgment of
Nicholas AJA the matter was dealt with on the footing that the conviction of accused No
1 in that case could not be sustained on a consideration of the problems relating to
causation but, significantly, he upheld the conviction on the ground that a common
purpose between the E accused to rob and kill the deceased had been proved (see at
302F, 304D - H). In my judgment I found that a common purpose between the accused
to rob the deceased had been proved. At 323E - F I said the following:
'Volgens my beskouing is die geldende regsposisie dat, waar een van die deelgenote
tot 'n gemeenskaplike oogmerk die handeling verrig wat F die dood van die oorledene
veroorsaak, en daar by die ander deelgenote die nodige mens rea aanwesig is, die
handeling van die een wat die dood veroorsaak, as 'n kwessie van regsbeleid, beskou
word as die handeling van al die deelgenote....'

I adhere to that view because it seems to me that it is borne out by the cases decided in
this Court as discussed above. I would add this observation: the approach reflected in
the passage just quoted has been G applied, in effect, in many cases of common
purpose decided in the Provincial and Local Divisions which in recent years have come,
and are currently coming, on appeal before this Court, without the validity of the
approach being questioned, but which never reach the Law Reports.

That being the existing state of the law relating to common purpose, H it would
constitute a drastic departure from a firmly established practice to hold now that a party
to a common purpose cannot be convicted of murder unless a causal connection is
proved between his conduct and the death of the deceased. I can see no good reason for
warranting such a departure. Many of the authors who are opposed to the practice of the
Courts have criticised its origins, both in relation to I its rationalisation on the basis of
implied mandate and in relation to the fact that it first came to us via the application of
English law. In passing I would say that the much maligned notion of implied mandate
seems to me not to be without merit, now that it is well recognised that the liability of an
individual accused rests on his own mens rea alone (whether dolus directus or dolus
eventualis ), and that the English origin of the practice is no reason per se for rejecting
it, if it J satisfies
1988 (1) SA p901

BOTHA JA

A the exigencies of the administration of our own criminal law. But that is by the way;
for the purposes of this judgment matters of merely historical interest can be left aside.
What is more important is that the authors who are critical of the practice of the Courts
do not appear to have problems with the actual results achieved in the vast majority of
cases. In the main the criticism is based on the argument that B causation is a
fundamental element in the definition of the crime of murder which cannot be ignored;
and it is said also that the concept of active association with the act of killing by another
is too vague to serve as a touchstone for liability. In my view, however, in many cases
where acceptable (and required) results are achieved by means of imputing the act of
killing by one person to another person by virtue of C a common purpose, the adherence
to the requirement of a causal connection between the conduct of the latter person and
the death of the deceased would necessitate stretching the concept of causation, inter
alia by resorting to the device of 'psychological causation', to such unrealistic limits as to
border on absurdity. In the process there would D be present a greater measure of
vagueness and uncertainty than in regard to the application of the test of active
association with the attainment of the common purpose. In any event, I do not think
that the application of the latter test presents unmanageable problems. It simply
involves an assessment of the facts of the particular case, and the factual issue to be
resolved is no more difficult to resolve than many other factual E issues encountered in
any criminal case. The position of accused Nos 5 and 6 in the present case can be taken
as an example. The trial Court found that it had not been proved that they had had the
intention to kill the deceased. On the facts relating to their limited participation in the
events, prior to the setting on fire of the deceased's house, it might as well have found
that the evidence fell short of proving an F active association on their part with the
purpose of the mob to kill the deceased. In regard to two cases mentioned earlier,
however, viz Mgxwiti's case supra and Dladla's case supra , some authors have criticised
or queried the result arrived at, as did counsel for the accused in the present case. I do
not consider those cases to have been wrongly decided, but for present purposes the
point to be stressed is G that if it is assumed that the correctness of the result in those
cases is debatable, that would be so, not because of doubt as to whether a causal
connection had been proved between the acts of the accused and the death of the
deceased in each case, but because it would be arguable whether, as a matter of fact,
the evidence showed an active association H by the accused with the acts of the mob
which caused the death of the deceased.

In the present case, on the facts outlined earlier, there can be no doubt, in my
judgment, that the individual acts of each of the six accused convicted of murder
manifested an active association with the acts of the mob which caused the death of the
deceased. These accused I shared a common purpose with the crowd to kill the
deceased and each of them had the requisite dolus in respect of his death. Consequently
the acts of the mob which caused the deceased's death must be imputed to each of
these accused.

I should mention that counsel for the accused argued that the final J act of setting the
deceased alight fell outside the purview of any common
1988 (1) SA p902

BOTHA JA

A purpose to which the accused were parties and that they could therefore not be held
responsible for the deceased's death. There is no substance in this argument. On the
particular facts of this case the precise manner in which and the precise means by which
the deceased was to be killed were irrelevant to the achievement of the common
purpose.

For these reasons the first ground of appeal fails.

B The third ground of appeal relates to the convictions of all the accused for
subversion. In view of the way in which the argument developed in this Court, this
ground of appeal can be disposed of briefly. The charge against the accused was based
on the following provisions of s 54(2) of the Internal Security Act 74 of 1982 ('the Act'):
C '(2) Any person who with intent to achieve any of the objects specified in paras (a) -
(d) , inclusive, of ss (1) -
(a) causes or promotes general dislocation or disorder at any place in the Republic, or
attempts to do so;

...
(e) prevents or hampers, or deters any person from assisting in, the D maintenance of
law and order at any place in the Republic, or attempts to do so;

...
shall be guilty of the offence of subversion....'

The paragraphs in s 54(1) on which the State relied in the charge read as follows:
E '(c) induce the Government of the Republic to do or abstain from doing any act or to
adopt or to abandon a particular standpoint; or
(d) put in fear or demoralise the general public, a particular population group or the
inhabitants of a particular area in the Republic....'

In terms of s 54(8) the expression 'Government of the Republic' includes F inter alia any
institution contemplated in s 84(1)(f) of Act 32 of 1961, and the last-mentioned section
refers inter alia to 'municipal institutions... and other local institutions of a similar
nature'. Section 69(5) of the Act provides:
'If in any prosecution for an offence in terms of s 54(1) or (2) it is proved that the
accused has committed any act alleged in the charge, and G if such act resulted or was
likely to have resulted in the achievement of any of the objects specified in s 54(1)(a) -
(d) , inclusive, it shall be presumed, unless the contrary is proved, that the accused has
committed that act with intent to achieve such object.'

The particular facts on which the State relied in support of the charge were set out in a
schedule annexed to the indictment. It is not H necessary to reproduce that schedule
here. It contained a statement of the acts performed by the mob at or in the vicinity of
the deceased's house, with which the accused made common cause, and which have
been summarised earlier in this judgment.

Those facts having been proved, the trial Court found that the conduct of the mob,
which included the accused, fell within the ambit of paras I (a) and (e) of s 54(2) of the
Act. This finding was rightly not challenged on behalf of the accused. On the facts of this
case there is accordingly no need to embark upon a general discussion of the precise
scope of the paragraphs in question.

With regard to para (c) of s 54(1) the trial Court found that the town council of Lekoa
was an institution as contemplated in s 84(1)(f) of Act J 32
1988 (1) SA p903

BOTHA JA

A of 1961. This finding was not challenged either. The trial Court found further that the
acts of the mob were directed at inducing the town council of Lekoa to abstain from
enforcing the payment of increased service levies, and that such was indeed the result of
the riots, since it appeared from the evidence that the town council subsequently
decided to abandon the project of levying increased charges. With regard to para B (d)
of s 54(1) the trial Court found that there was ample evidence to show that the
inhabitants of Sharpeville were put in fear by the rioting mob.

In their evidence all the accused denied that they had any intent to achieve any of the
objects specified in paras (c) and (d) of s 54(1). The trial Court found, however, that
they had failed, on a balance of probabilities, to rebut the presumption provided for in s
69(5). This C was the only finding of the trial Court, on this aspect of the case, which
was challenged on appeal. It was argued that the trial Court should have accepted the
denials of the accused. The argument was doomed to fail. Not only were the denials of
the accused contrary to the probabilities emerging from the evidence, but the trial Court
also found D that all the accused were untruthful witnesses. The record shows that the
trial Court had good and sufficient grounds for rejecting the evidence of each of the
accused. Accordingly there is no room for this Court to interfere with the finding of the
trial Court.

So the third ground of appeal fails also.

E Accused Nos 5 and 6, it will be recalled, were given leave to appeal against their
convictions for public violence. It can be assumed that the leave was based on the
ground that there was no direct evidence that either of these accused had actually
thrown any stones themselves. On the facts of this case, however, it was not necessary
for the State to prove that these accused had themselves thrown stones, for the
evidence F against them established clearly that they were in the forefront of the stone-
throwing mob, and thus that they associated themselves with, and so were parties to,
the execution of a common purpose to commit a riotous and violent disturbance of the
public peace and security and invasion of the rights of others (cf R v Wilkens and Others
1941 TPD 276 at 289, 297; R v Cele and Others 1958 (1) SA 144 (N) at 153B - C). On
the G other hand it is clear that the very same conduct of these accused, on which their
convictions for public violence were founded, constituted the essential basis for their
convictions for subversion. It is for this reason that the question was raised in argument
before this Court, as mentioned earlier, whether it was proper to convict these accused
both H for subversion and for public violence. In my view it was not. Not only were the
acts of the accused which constituted the basis of each of the convictions exactly the
same, but the nature of those acts, in the particular circumstances of this case, was in
substance very similar for the purposes of either of the convictions. The causing of
'general dislocation and disorder' and the preventing or hampering of 'the I maintenance
of law and order' for the purposes of paras (a) and (e) of s 54(2) of the Act,
simultaneously involved the forceful disturbance of the public peace and security and
invasion of the rights of others for the purposes of public violence. On the particular facts
of this case the proof of the former necessarily constituted proof of the latter. In
substance the punishable conduct was the same. The only difference J between the two
1988 (1) SA p904

BOTHA JA

A crimes, in the circumstances of this case, was the specific intent required for
subversion, as described in paras (c) and (d) of s 54(1) of the Act, which was, in terms
of s 69(5), presumed against the accused to have been present, and in one respect, viz
the putting in fear of the inhabitants of the area (para (d) ), the intent largely coincided
with B the intent involved in public violence as well. In these circumstances, applying the
considerations of common sense and fairness referred to in R v Kuzwayo 1960 (1) SA
340 (A) at 344A - C, these accused ought not to have been convicted of both crimes. I
may add that the trial Court was probably not alerted to the position discussed above
because the convictions for public violence were considered in the context of C
competent verdicts on the charge of murder. Had all the accused been charged originally
with both subversion and public violence the difficulty would have been more
immediately apparent. In the result these convictions of accused Nos 5 and 6 and the
sentences imposed on them in respect thereof cannot stand and will be set aside.

D I turn next to the question of extenuating circumstances in regard to the six accused
who were convicted of murder. None of them testified on this issue, but on behalf of
them evidence was given by Professor Tyson, a highly qualified and experienced
psychologist. I do not propose to discuss his evidence in detail. The trial Judge dealt fully
with it in his lengthy and careful judgment on extenuating circumstances. The E effect of
Professor Tyson's evidence is summarised in the following passage:
'I consider, on the basis of my assessment of the psychological literature, that it is
highly probable that an individual in a mob situation will experience de-individuation and
that this de-individuation will lead to diminished responsibility in much the same F way
as do the consumption of too much alcohol or great emotional stress.'

It was argued before this Court that the trial Court had misdirected itself in finding that
there were no extenuating circumstances, in view of the unchallenged evidence of
Professor Tyson, as summarised above. I am unable to accept this argument. The views
expressed by the witness G were of a wholly generalised nature, and unrelated to the
individual accused. The generalisation of the probability referred to by the witness
cannot be specifically related to any individual accused in the absence of any evidence at
all regarding the actual motivation and state of mind of such individual accused. No such
evidence was placed before H the trial Court. The position in the present case is
governed by the reasoning in S v Magubane en Andere 1987 (2) SA 663 (A) at 667G -
669E, which was concerned with a different, but nonetheless closely analogous, context.
Consequently there is no room for finding that the trial Court had misdirected itself in its
assessment of Professor Tyson's evidence.

It was contended further that the trial Court had misdirected itself I in placing reliance
on the remarks of Rumpff JA in S v Maarman 1976 (3) SA 510 (A) at 512F - 513A.
Again, I am unable to accept this argument. Suffice it to say that there is nothing in the
judgment of the trial Judge which could indicate that the trial Court had referred to the
interests of the community in any sense other than that sanctioned by J the remarks
referred to.
1988 (1) SA p905

BOTHA JA

A It was for the trial Court to assess the matter of extenuating circumstances. As is
well known, the room for this Court to interfere with the trial Court's assessment is very
limited. In this case, it has not been shown that the trial Court misdirected itself. It was
not suggested that a Court could not reasonably have arrived at the conclusion reached
by the trial Court. Consequently there are no grounds B upon which this Court can
interfere with the trial Court's finding that there were no extenuating circumstances.

Finally, as to the sentences imposed by the trial Judge on all the accused in respect of
their convictions for subversion, it has not been shown that the trial Judge's discretion in
the matter of sentence was not exercised properly. There is no room for this Court to
interfere C with the sentences.

The order of the Court is as follows:


(1) The appeals of appellants Nos 1, 2, 3, 4, 7 and 8 (accused Nos 1, 2, 3, 4, 7 and 8
in the Court a quo ) against their convictions for murder and the death sentences
imposed upon them are dismissed.
D (2) The appeals of all the appellants against their convictions for subversion and
the sentences imposed upon them in respect thereof are dismissed.
(3) The appeals of appellants Nos 5 and 6 (accused Nos 5 and 6 in the Court a quo )
against their convictions for public violence and the sentences imposed in respect thereof
are allowed; these E convictions and sentences are set aside.

Hefer JA, Smalberger JA, Boshoff AJA and M T Steyn AJA concurred.

Appellants' Attorneys: Ismail Ayob & Associates , Johannesburg; Israel & Sackstein ,
Bloemfontein.

Previous Page Next Page

S v MUSHIMBA EN ANDERE 1977 (2)


SA 829 (A)
1977 (2) SA p829

Citation 1977 (2) SA 829 (A)

Court Appèlafdeling

Judge Rumpff HR, Hofmeyer ARen Kotzé AR

Heard February 15, 1977

Judgment March 17, 1977

Annotations Link to Case Annotations

A
[zFNz]Flynote : Sleutelwoorde
Strafproses - Verhoor - Onreëlmatigheid in - Wanneer skuldigbevinding tersyde gestel
kan word - "Geregtigheid" in voorbehoudsbepaling tot art. 356 (1) van Ord. 34 van
1963 (S.W. A.) - Betekenis van - Of geregtigheid geskied het of nie sal afhang van die
omstandighede van elke geval en sal altyd 'n oorweging van publieke beleid vereis -
Onreëlmatigheid - Wat daarop neerkom - Skending van professionele privilegie -
Wanneer sodanige 'n growwe onreëlmatigheid sal uitmaak - Getuienis - Privilegie -
Professionele privilegie tussen prokureur en kliënt - Skending van - Oorhandiging deur
werknemer van beskuldigdes se prokureurs van afskrifte van verklarings deur
beskuldigdes, getuies en vertroulike inligting aan Veiligheidspolisie - Oorhandiging
daarvan aan Staatsadvokaat deur Veiligheidspolisie - Sodanige 'n growwe
onreëlmatigheid - Geregtigheid het nie geskied nie - Skuldigbevindings tersyde gestel -
Polisie - Veiligheidspolisie - Uitoefening van sy taak om gesag en orde te handhaaf -
Skending van professionele privilegie tussen prokureur en kliënt deur optrede van
Veiligheidspolisie - Wanneer 'n beskuldigde nie daaraan onderwerp moet word nie.
[zHNz]Headnote : Kopnota

Die voorbehoudsbepaling tot artikel 356 (1) van die Strafprosesordonnansie, 34 van
1963 (S.W.A.), vereis dat indien daar 'n onreëlmatigheid plaasgevind het, 'n
skuldigbevinding alleen dan tersyde gestel kan word indien geregtigheid inderdaad nie
geskied het nie. Die "geregtigheid" waarna hier verwys word, is nie 'n begrip wat
veronderstel dat die beskuldigde noodwendig onskuldig is nie. Geregtigheid wat
geskied het in hierdie sin is die resultaat wat 'n bepaalde eienskap van verrigtinge
aandui. Die eienskap toon aan dat aan vereistes wat grondbeginsels van reg en
regverdigheid aan die verrigtinge stel, voldoen is. Die vraag of onreëlmatige of met die
reg strydige verrigtinge in verband met 'n verhoor van 'n beskuldigde van so 'n aard is
dat dit gesê kan word dat van daardie grondbeginsels nie nagekom is nie, en
geregtigheid dus nie geskied het nie, sal afhang van die omstandighede van elke geval
en sal altyd 'n oorweging van publieke beleid vereis.

Die appellante is deur die Suidwes-Afrika Afdeling skuldigbevind aan oortredings van
die Wet op Terrorisme, 83 van 1967, en gevonnis. Na die verhoor het die appellante
met welslae aansoek gedoen om 'n spesiale aantekening kragtens artikel 351 (1) van
Ordonnansie 34 van 1963 (S.W.A.) en die volgende spesiale aantekening is op die
notule aangebring: "Whether in connection with or during the proceedings there were
irregular and/or illegal departures from and infringements of the formalities, rules and
principles which the law requires to be observed for a fair trial, and which resulted in a
failure of justice..." Uit die getuienis, wat ter stawing van die aansoek om die spesiale
aantekening aangebied is, het dit geblyk dat ene mev. E, 'n lid van die personeel van
die prokureursfirma wat die appellante by die verhoor verdedig het, afskrifte van
verklarings deur die appellante en verdedigingsgetuies en ander vertroulike of
gepriviligieerde dokumente aan die Veiligheidsafdeling van die Polisie gegee het terwyl
die ondersoekbeampte in beheer van die saak 'n lid van die Veiligheidspolisie was.
Daarna is die verklarings en dokumente aan die ondersoekbeampte gegee wie
instruksies aan die Staatsadvokaat gegee het. Die Staatsadvokaat het egter nie geweet
van die onreëlmatighede wat plaasgevind het nie. In 'n appèl na aanleiding van die
spesiale aantekening, is namens die Staat betoog dat geen onreëlmatigheid
plaasgevind het nie, dat, indien daar wel 'n onreëlmatigheid plaasgevind het, dit nie die
verrigtinge geraak het nie en dat, in elk geval, die onreëlmatigheid nie van so 'n aard
was dat geregtigheid nie geskied het nie.

Beslis , dat die privilegie wat tussen die appellante en hul prokureur bestaan het op 'n
besondere wyse geskend is: vanaf die datum waarop die opdrag tot verdediging
ontvang is tot aan die einde van die saak het die Veiligheidspolisie deur middel van
Kaptein N (aan wie die dokumente deur mev. E gegee is) en mev. E die verdediging
volledig gepenetreer en die privilegie is eenvoudig uitgeskakel.

Beslis , verder, dat die volledige uitskakeling van die privilegie nie net 'n
onreëlmatigheid was nie, maar 'n uiters growwe onreëlmatigheid wat vir sover dit
privilegie betref beswaarlik oortref kon word.

Beslis , verder, dat dit geen twyfel gely het nie dat die skending van die privilegie die
verrigtinge geraak het nie: daar was 'n kanaal geskep wat geloop het vanuit die
kantore van die verdediging tot by die aanklaer in die saak. Die aanklaer self was
onbewus van die kanaal maar dat die kanaal direk by die verrigtinge en gedurende die
hele tyd van die verrigtinge ingeskakel was, het geen twyfel gely nie.

Beslis , verder, dat vóór die verhoor tot aan die einde daarvan, deur die optrede van
die Veiligheidspolisie, daar 'n volledige uitskakeling van die beskuldigdes se privilegie
was: dat die Veiligheidspolisie sy taak moes uitoefen om te sorg dat gesag en orde
gehandhaaf moes word met al die wettige mag tot sy beskikking kon nie getwyfel word
nie, maar publieke beleid het egter geverg dat 'n beskuldigde in 'n saak nie onderwerp
behoort te word aan wat in die onderhawige saak gebeur het nie.

Beslis , derhalwe, weens die aard en omvang van die skending van die privilegie van
die appellante, dat dit bevind moes word dat hulle beskerming deur privilegie vóór en
gedurende die verhoor totaal verdwyn het deur die optrede van die Veiligheidspolisie,
dat daardeur die verhoor nie voldoen het aan wat geregtigheid in hierdie opsig vereis
het nie en dat geregtigheid dus nie geskied het nie. Appèl gehandhaaf.
[zFNz]Flynote : Sleutelwoorde
Criminal procedure - Trial - Irregularity in - When conviction can be set aside -
"Justice" in proviso to sec. 356 (1) of Ord. 34 of 1963 (S.W.A.) - Meaning of - Whether
or not there was a failure of justice will depend on the circumstances of each case and
will always require a consideration of public policy - Irregularity - What amounts to -
Breach of professional privilege - When such will constitute a gross irregularity -
Evidence - Privilege - Professional privilege between attorney and client - Breach of -
Employee of accused's attorneys giving copies of statements by accused, witnesses and
confidential information to Security Police - Such handed over to State counsel by
Security Police - Such a gross irregularity - Failure of justice occurring - Convictions set
aside - Police - Security Police - Exercise of their duty of maintaining law and order -
Breach of professional privilege between attorney and client through action of Security
Police - When an accused should not be subjected thereto.
[zHNz]Headnote : Kopnota

The proviso to section 356 (1) of the Criminal Procedure Ordinance, 34 of 1963
(S.W.A.), requires that, if an irregularity has taken place, a conviction can only be set
aside if a failure of justice occurred. The "justice" here referred to is not a concept
which assumes that the accused is necessarily innocent. Justice which has been done in
this sense is the result which a particular attribute of proceedings indicates. This
attribute indicates that the requirements which the fundamental principles of law and
justice lay down for the proceedings have been met. The question whether irregular or
illegal proceedings in connection with the trial of an accused are of
1977 (2) SA p830

such a nature that it can be said that some of those fundamental principles have not
been complied with, and a failure of justice has occurred, will depend on the
circumstances of each case and will always require a consideration of public policy.

The appellants had been convicted in the South-West Africa Division of contraventions
of the Terrorism Act, 83 of 1967, and sentenced. After the trial the appellants
successfully applied for a special entry in terms of section 351 (1) of Ordinance 34 of
1963 (S.W.A.) and the following special entry was entered on the record: "Whether in
connection with or during the proceedings there were irregular and/or illegal
departures from and infringements of the formalities, rules and principles which the law
requires to be observed for a fair trial, and which resulted in a failure of justice..." From
the evidence, which was tendered in support of the application for the special entry, it
appeared that one Mrs. E, a member of the staff of the firm of attorneys who defended
the appellants at the trial, had given copies of statements by the appellants and
defence witnesses and other confidential and privileged documents to the Security
branch of the Police whilst the investigating officer in charge of the case was a member
of the Security Police. Thereafter the statements and documents were given to the
investigating officer who gave instructions to the State counsel. The State counsel was,
however, unaware of the irregularities which had occurred. In an appeal on the special
entry it was contended on behalf of the State that no irregularity had taken place, that,
if an irregularity had taken place, it did not affect the proceedings and that, in any
event, the irregularity was not of such a nature that a failure of justice had occurred.

Held , that the privilege which had existed between the appellants and their attorney
had been breached in a particular manner: from the date upon which the instructions
to defend had been received to the end of the case the Security Police, through Captain
N (to whom the documents had been given by Mrs. E) and Mrs. E, had completely
penetrated the defence and the privilege had simply been eliminated.

Held , further, that the complete elimination of the privilege was not only an
irregularity,
1977 (2) SA p831
but was an extremely gross irregularity which, as far as it concerned privilege, could
scarcely have been surpassed.

Held , further, that it could not be doubted that the breach of the privilege affected the
proceedings: a channel had been created which proceeded from the offices of the
defence right up to the prosecutor in the case. The prosecutor himself was unaware of
the channel, but that the channel was directly linked to the proceedings, and had been
interspersed during the entire period thereof, could not be doubted.

Held , further, that, from before the trial to the end thereof, by the action of the
Security Police, there was a complete elimination of the privilege of the accused: that
the Security Police had to fulfil its task of ensuring that law and order was maintained
with every lawful means at its disposal could not be doubted, but public policy
demanded, however, that an accused in a case ought not to be subjected to what had
occurred in the present case.

Held , accordingly, by reason of the nature and extent of the breach of the privilege of
the appellants, that it had to be found that their protection by the privilege before and
during the trial had disappeared totally through the action of the Security Police, that
thereby the trial did not comply with what justice required in this respect and that a
failure of justice had occurred. Appeal upheld.
[zCIz]Case Information

Appèl op 'n spesiale aantekening kragtens arts. 351 (1) en 352 C (1) van Ord. 34 van
1963 (S.W.A.) teen skuldigbevindings in die Suidwes-Afrika Afdeling (STRYDOM, R.).
Die feite blyk uit die uitspraak van RUMPFF, H.R.

I. A. Maisels, Q.C . (bygestaan deur W. E. Cooper, S.C., en W. G. Thring ), names die


appellante: In view of the extent of the leakage of confidential and privileged
information to Dippenaar and the far-reaching and active role he played in the D
prosecution, the penetration of the defence must, unbeknown to the accused and their
legal advisers, have had a profound impact upon the whole course of the trial and the
ultimate verdict. It is a fundamental principle of justice that an accused person is
entitled to a fair trial. S . v Alexander and Others (1), 1965 (2) SA at p. 809C - D; S . v
Lwane , 1966 (2) SA at p. 444D. Incidental to this is the accused's E right to obtain
legal advice and to consult his legal advisers. Sec. 86 of the Criminal Procedure and
Evidence Ordinance, 34 of 1963 (S.W.A.) (corresponding to sec. 84 of the SA statute,
the Criminal Procedure Act, 56 of 1955); Brink and Others v Commissioner of Police ,
1960 (3) SA at p. 67C. Communications which pass between an accused and his legal
advisers are privileged; that is, the accused is entitled to F confidential access to his
legal advisers, and such communications are protected from disclosure to the State or
to anyone else without the accused's consent. S . v Alexander (1), supra at
1977 (2) SA p832

p. 810D - F; Hoffmann, S.A. Law of Evidence , 2nd ed., p. 186. The privilege covers all
instructions which the accused gives his legal advisers, including instructions given by
the accused's attorney to his counsel. This privilege extends also A to statements of
witnesses which form part of the defence brief. Hoffmann, op cit. , p. 194; Schmidt,
Bewysreg , p. 417. The privilege is recognised by statute, the disclosure in criminal
proceedings of any professional communication between an accused and his legal
advisers being expressly prohibited. Secs. 207 and 208 of the Ordinance (secs. 232
and 233 of the SA statute). In Alexander's case, supra , this Court accepted B that this
privilege is an essential element of an accused's right to a fair trial, and a breach
thereof will generally deprive an accused of a fair trial. See also R . v Maleleke , 1925
T.P.D. at p. 536. As in the case of arbitrary police interference with the rights of the
individual this Court will likewise be astute to safeguard an accused's right C to a fair
trial, and will not countenance any infringement of this right by the State. Cf. Wolpe
and Another v Officer Commanding, SA Police, Johannesburg , 1955 (2) SA at p. 95A.
On this point the approach of the Courts in the United States of America may be
considered helpful: Coplon v United States , 191F 2d (1951) at pp. 757, 759 - 760, a
case involving the interception by wire-tapping of telephone conversations between D
the accused and her counsel. In Caldwell v United States , 205F 3d (1953) at p. 881, a
case in which a prosecution agent had infiltrated the defence, Coplon's case, supra ,
was followed. Taglianetti v United States , 398F 2d (1968) at p. 570; United States v
Cooper , 397F Supp. (1975) at p. 285; United States v Coplon , 185F 2d (1950). The
purpose for which E the law requires certain principles, rules, formalities and
procedures to be observed is to ensure that an accused receives a fair trial. It follows
that the denial of a fair trial is a denial of justice and is per se a failure of justice. Cf. S
. v Moodie , 1961 (4) SA at pp. 756E - F, 758F - G; S . v Mofokeng , 1962 (3) SA at p.
557G - H. The present case is readily distinguishable on the facts from Alexander's
case, supra , in that - (a) in the present case the privileged F information was
communicated to Dippenaar, the investigating officer; (b) Dippenaar acted as the
prosecutor's "junior" throughout the trial and used the privileged information while
assisting him. The infringement of the accused's rights was thus an irregularity in
connection with the trial. As to the meaning of the words "in connection with" see
Secretary for G Inland Revenue v Wispeco Housing (Pty.) Ltd. , 1973 (1) SA at p. 793A
- D. Verder op die meriete en vonnisse.

J. C. H. Jansen , namens die Staat: Dit word erken dat kommunikasie tussen 'n
regspraktisyn en sy kliënt ten aansien van "legal advice for the protection of his (die
Kliënt) H interests, information procured in pursuance of such communications for the
same purpose, and notes and other records of such communications and information
made for the same purpose... notes and records made or procured with a view to
litigation... including therefore instructions to counsel..." geprivilegeerd is. Wills,
Evidence , 3de uitg., bl. 281 - 282; art. 207 van Ord. 34 van 1963 (S.W.A.). Die
algemene beginsel van privilegie tussen 'n regspraktisyn en sy kliënt word as volg
omskryf: "Where legal advice of any kind is sought from a professional legal adviser in
his capacity as such, the communications relating to that purpose, made in confidence
by the client, are at his instance permanently
1977 (2) SA p833

protected from disclosure by himself or by the legal adviser , except the protection by
waiver." (My Kursivering.) Wigmore, Evidence , 3de uitg., para. 2292. Die beginsel van
privilegie is gebaseer op subjektiewe oorwegings. "In order to promote freedom of
consultation of legal advisers by clients, the A apprehension of compelled disclosure by
the legal advisers must be removed; and hence the law must prohibit such disclosure
except on the clients consent. Such is the modern theory." (My kursivering.) Wigmore,
op. cit. , para. 2291. "Die doel van professionele bevoorregting is om te verseker dat
die kliënt volkome openhartig kan wees sonder vrees dat sy adviseur gedwing kan
word om sy mededelinge aan die hof oor te dra." B (My kursivering.) Hiemstra, Suid-
Afrikaanse Strafproses , bl. 280; Wills, Evidence , bl. 282. Uit die aangehaalde
passasies en uit die bewoording van die artikel, wat ressorteer onder die hoofstuk
"Getuies" in die Strafprosesordonnansie, is dit duidelik dat die beginsel van privilegie
van beroepsraadgewers daarop gemik is om getuienis deur die C regspraktisyn teen sy
kliënt , ten aansien van vertroulike mededelinge deur die kliënt, te verbied as
ontoelaatbaar (behalwe onder sekere omstandighede wat nie hier van belang of ter
sprake is nie). In kort gestel, die regsadviseur mag nie teen sy kliënt getuig nie.
International Tobacco Co . v United Tobacco Cos. Ltd. (2) , 1953 (3) SA op bl. 882H -
883B. Die feit dat die regsadviseur as getuie teen sy kliënt uitgesluit D is diskwalifiseer
nie 'n derde persoon wat die vertroulike mededeling van die kliënt aan die adviseur
hoor, om getuienis ten aansien van die betrokke mededeling (waaroor die adviseur nie
mag getuig nie) te gee nie. Wigmore, supra te para. 2326; Schmidt, Bewysreg , bl.
414; Phipson, Evidence , 11de uitg., para. 584; Taylor, Evidence , 12de uitg., para.
922; S . v. E Alexander and Others (1), 1965 (2) SA op bl. 810D - E. Indien 'n
geprivilegeerde dokument in die hande van 'n derde persoon kom, selfs deur 'n
vertrouensbreuk of nalatigheid aan die kant van die regspraktisyn of-adviseur, sal 'n
afskrif van so 'n dokument as getuienis teen die kliënt van sodanige regspraktisyn
toelaatbaar wees en sal 'n beroep op privilegie nie slaag nie. Lloyd v Mostyn , 1842
Dowling & Dowling's F Reports 476; Calcraft v Geust , (1898) 1 Q.B.D. 759; R . v
Leatham , Cox's Criminal Cases , band VIII, op bl. 505 r. 7 - 13; Taylor, op. cit. , para.
922; Phipson, op. cit. , para. 584; Wills, op. cit. , bl. 290 - 291; Cross, Evidence , 2de
uitg., bl. 270. Die bogenoemde beginsel word verder uitgebrei deurdat dit beslis is dat
die getuienis van 'n prokureur ten aansien van die identifikasie van 'n geprivilegeerde
dokument, waarvan G die inhoud reeds deur sekondêre getuienis bewys is, nie in stryd
met die beginsel van privilegie is nie. Phelps v Prew , 1854 Ellis & Blackburn's Reports,
band III, bl. 430. 'n Remedie is egter beskikbaar teen 'n party wat van 'n
geprivilegeerde dokument in getuienis wil gebruik maak. Lord Ashburton v Pape , 1913
Ch. D. op bl. 476 - 477. Alle onvrywillige bekendmakings van die inhoud van
geprivilegeerde dokumente, selfs deur die H diefstal van sodanige dokumente vanuit
die besit van die prokureur wat dit namens sy kliënt hou, word nie gedek deur die
beginsel van privilegie nie. Wigmore, op. cit. , para. 2325 (3); Williams v Shaw , (1884
- 5) 4 E.D.C. op bl. 110 - 111. Bogenoemde beginsels is deur die Suid-Afrikaanse Howe
aanvaar; slegs dwang as wyse waarop besit van die geprivilegeerde dokument verkry
kan word, word uitgesluit. Israelson v Power, N.O. and Ruskin, N.O. (1) , 1953 (2) SA
499; Andresen v Minister of Justice , 1954 (2) SA op bl. 478E - 479H. Dit word
1977 (2) SA p834

met respek betoog dat die verkryging van geprivilegeerde dokumente deur die
vervolging vanuit die besit van 'n prokureur, sonder toestemming of kennis of selfs
teen die wil van die prokureur of die kliënt, nie onreëlmatig of met dig reg A strydig is
soos bedoel in art. 351 (1) van Ord. 34 van 1963 (S.W.A.) nie. Indien die Hof van
Appèl bevind dat die feitebevinding van Regter HART, ten aansien van die aansoek om
'n spesiale aantekening, nl.: "(a) that Mrs. Ellis did in fact furnish information and
copies of documents already mentioned to Captain Nel of the Security Police; (b) that
this information did, in some way which I cannot exactly determine, B come into
possession of the investigating officer;" wel 'n onreëlmatigheid daarstel, dan in die
alternatief, hou sodanige onreëlmatighede nie verband met die verrigtinge van die
verhoor van die appellante nie.

Uit die bewoording van art. 351 (1) van die Ordonnansie is dit duidelik dat 'n spesiale
aantekening op die notule aangebring C kan word slegs indien 'n beskuldigde meen dat
enige van die verrigtinge in verband met of gedurende sy verhoor onreëlmatig of met
dig reg strydig is. Volgens die Engelse teks van die artikel word die spesiale
aantekening gemaak "if the accused thinks that any of the proceedings in connection
with or during his trial are irregular or not according to law". (My kursivering.) Die
gewysdes is duidelik dat die beweerde D onreëlmatigheid moet slaan op die verrigtinge
(proceedings). "Proceedings" word geïnterpreteer as "procedure". R . v Thielke , 1918
AD op bl. 376; R . v Matlala and Others , 1921 AD 10; R . v Holliday , 1924 AD op bl.
254; R . v Nafte , 1929 AD op bl. 338. Die beweerde onreëlmatighede moet verband
hou met "those formalities, rules and principles or procedure E in accordance with
which the law requires a criminal trial to be initiated or conducted". S . v Mofokeng ,
1962 (3) SA op bl. 556E - 557H; S . v Alexander and Others (1) , 1965 (2) SA op bl.
808G - 809E. "Procedure" word volgens die Tweetalige Woordeboek van Bosman, Van
der Merwe en Hiemstra, 6de verbeterde uitg., vertaal as "handelwyse", "werkwyse",
"metode" of "prosedure". "Prosedure" word in die Handwoordeboek van die F
Afrikaanse Taal van Schoonees, Swanepoel, Du Toit en Booysen omskryf as "wyse
waarop iets gedoen word of warrop 'n (hof) saak gevoer word". Sien ook S . v
Alexander and Others (1), supra op bl. 809E - H. Indien die Hof van Appèl wel bevind
dat die genoemde feitebevinding van Regter HART wel neerkom op 'n onreëlmatigheid
van die verrigtinge in verband met of gedurende G die verhoor van die appellante, dan
in die alternatief is so 'n onreëlmatigheid nie sodanig as synde "of such a gross
departure from established rules of procedure that the accused has not been properly
tried" en derhalwe "per se a failure of justice" daarstel sodat dit "unnecessary to apply
the test of enquiring whether a reasonable trial Court would inevitably H have
convicted if there had been no irregularity" sal wees nie. S . v Moodie , 1961 (4) SA op.
bl. 758G. Selfs die openbaarmaking van moontlike geprivilegeerde inligting aan 'n lid
van die Hof is volgens gewysdes nie per se onreëlmatig soos bedoel in S . v Moodie,
ibid. , nie. R . v Matsego and Others , 1956 (3) SA 411; S . v Molefe , 1962 (4) SA 533.
Indien die Hof van Appèl bevind dat in die onderhawige geval wel 'n onreëlmatigheid
plaasgevind het, sal die algemene reël geld, nl. dat die skuldigbevinding slegs ter syde
gestel sal word indien die Hof van Appèl tevrede is dat die appellante wel deur
sodanige onreëlmatigheid benadeel is en dat geregtigheid inderdaad nie
1977 (2) SA p835

RUMPFF HR

geskied het nie. Art. 356 (1) van Ord. 34 van 1963; R . v Rose , 1937 AD op bl. 477; S
. v Moodie, supra op bl. 758F. Daar bestaan geen aanduiding hoegenaamd uit al die
stukke voor die Hof dat geregtigheid weens die beweerde onreëlmatigheid nie geskied
het nie. S . v Alexander A and Others (1), supra op bl. 810G.

Maisels, Q.C. , in repliek.

Cur. adv. vult .

Postea (Maart 17). B


[zJDz]Judgment

RUMPFF, H.R.: Hierdie saak is gelukkig uniek in die geskiedenis van die Suid-Afrikaanse
reg. Dit het ontstaan en is verhoor in Suidwes-Afrika waar die gesag en orde te kampe
het met 'n politieke organisasie, die South-West Africa Peoples C Organisation, kortweg
Swapo genoem, wat in wese 'n twee-slagtige bestaan voer. Binnelands is dit 'n
organisasie wat oënskynlik vreedsame politieke veranderings beoog en nie verbode is
nie, terwyl daar 'n buitelandse vleuel van die party is wat 'n militante beleid voer, wat
ook binnelands ondersteuning geniet en wat terroriste die land laat binne sypel. Hierdie
terroriste vermoor nie slegs politieke teenstanders nie, maar ook onskuldige mans,
vroue en kinders. D In so 'n klimaat is dit nie snaaks nie dat sommige mense fel anti-
Swapo is en bereid is om gesag en orde bo enige ander oorweging te stel. Die vraag
wat ontstaan in hierdie saak is of die skending van die privilegie tussen kliënt en
regsadviseur deur so 'n houding die gevolg kan hê dat 'n skuldigbevinding aan 'n
misdaad tersyde gestel kan word. Hierdie saak het begin E toe ses persone in 1976 in
Swakopmund aangekla is van oortredings van die Wet op Terrorisme, 83 van 1967. Net
een van hierdie persone, beskuldigde nr. 3, is daarvan beskuldig dat hy die Wet oortree
het deur 'n handeling te pleeg wat die moordenaars van Kaptein Elifas sou gehelp het.
Hierdie Kaptein Elifas was Hoofminister van Owambo en is op 16 Augustus 1975 deur
onbekende persone met pistole doodgeskiet. Beskuldigde nr. F 3 is nie daarvan
aangekla dat hy Kaptein Elifas vermoor het of dat by medepligtige tot die moord was
nie. Die vyf ander beskuldigdes is aangekla van handelinge wat geen verband
hoegenaamd met die moord op Kaptein Elifas gehad het nie. Die werklike moordenaars
van Kaptein Elifas verskyn dus nie in hierdie saak nie. Nieteenstaande hierdie feite is
deur sekere G onakkurate beriggewing in 'n deel van die pers die indruk geskep,
tydens die verhoor van die saak en tydens die aanhoor van die appêl van die huidige
appellante, dat die saak wesenlik gaan oor die moord op Kaptein Elifas, 'n totaal
verkeerde indruk, wat al die beskuldigdes, behalwe nr. 3 beskuldigde, in 'n ongunstige
lig moes gestel het en 'n verkeerde kleur aan die saak gegee het. Na 'n verhoor van
etlike weke is vier van die H beskuldigdes skuldig bevind. Beskuldigde nr. 1 (eerste
appellant) is skuldig bevind deurdat hy 'n vierwiel-aangedrewe Landrover-voertuig
aangekoop het en aan Victor Nkandle oorhandig het vir lewering aan persone wie se
oogmerk dit was om die bestuur en administrasie van die gebied van Suidwes-Afrika
met geweld omver te werp. Hy is ter dood veroordeel. Beskuldigde nr. 3 (tweede
appellant) is daaraan skuldig bevind dat by drie mans vervoer het na "Onamagongwa
Store" terwyl hy geweet het dat daardie mans Kaptein Elifas wou ontvoer of
liggaamlike
1977 (2) SA p836

RUMPFF HR

leed aandoen, waarna hierdie mans Kaptein Elifas vermoor het. Hy is ook ter dood
veroordeel. Beskuldigde nr. 4 (derde appellante) is daaraan skuldig bevind dat sy R10
aan 'n persoon geskenk het vir lewering aan persone wie se oogmerk dit was om A die
bestuur en administrasie van die gebied Suidwes-Afrika met geweld omver te werp en
ook dat sy van twee persone R10 elk gekollekteer het vir oorhandiging aan persone
met dieselfde oogmerk waarvoor die skenking plaasgevind het. Sy is veroordeel tot
sewe jaar gevangenisstraf. Beskuldigde nr. 6 (vierde appellante) is daaraan skuldig
bevind dat sy R10 geskenk het B vir lewering aan persone wie se oogmerk dieselfde
was as beskryf in die geval van beskuldigde nr. 4 Sy in veroordeel tot vyf jaar
gevangenisstraf. Verlof tot appèl is aangevra teen die skuldigbevinding van
beskuldigdes nrs. 1, 2, 4 en 6 en teen die vonnisse wat op beskuldigdes nrs. 1, 3 en 4
opgeleê is. Ook is 'n aansoek gedoen om 'n spesiale aantekening ingevolge art. 351 C
van die Strafprosesordonnansie, 34 van 1963 (S.W.A.). Die gronde van hierdie aansoek
was dat die Verhoorhof verkeerdelik 'n aansoek om 'n inspeksie ter plaatse te hou,
afgewys het en verkeerdelik geweier het om sekere Staatsgetuies te laat herroep vir
verdere kruisverhoor. Beside aansoeke is afgewys. Verlof tot appèl is later deur hierdie
Hof verleen, maar intussen het daar ook verdere verwikkelings plaasgevind. In D Junie
1976 is in die Hooggeregshof te Windhoek skriftelik aansoek gedoen namens die
appellante om 'n spesiale aantekening ingevolge art, 351 van die
Strafprosesordonnansie. As gronde is aangevoer dat vóór en gedurende die verhoor (1)
verklarings van die beskuldigdes en van getuies en ander konfidensiële en
geprivilegieerde dokumente in verband met die verdediging van E die appellante op
onregmatige wyse uit die lêers van die prokureursfirma geneem is deur 'n lid van die
personeel van die firma en dat afskrifte van die dokumente gemaak is en aan die
Veiliheidsafdeling van die Polisie gegee is terwyl die ondersoekbeampte in beheer van
die saak 'n lid van die Veiligheidspolisie was, en ook dat (2) belangrike informasie
aangaande die verdediging van die beskuldigdes op onregmatige F wyse verstrek is aan
die Veiligheidspolisie deur 'n sekere Smit, 'n vennoot in die firma Lorentz en Bone wat
namens die beskuldigdes opgetree het, terwyl die ondersoekbeampte in die saak 'n lid
van die Veiligheidsafdeling was. Namens appellante is beëdigde verklarings van
verskillende persone voor die Hof gelê wat beantwoord is deur soortgelyke verklarings
namens die G Staat. Weens die teenstrydige inhoud van die verklarings is mondelinge
getuienis aangehoor te Windhoek deur 'n ander Regter as dié wat in die strafsaak gesit
het en hy het na oorweging van die getuienis tot sekere bevindings geraak en die
volgende spesiale aantekening aangebring:
"Whether in connection with or during the proceedings there H were irregular and/or
illegal departures from and infringements of the formalities, rules and principles which
the law requires to be observed for a fair trial, and which resulted in a failure of justice
by reason of the fact that prior to and during the proceedings:

statements of accused and/or witnesses for the defence and certain other confidential
and/or privileged documents relating to the defence of the accused, the identity of the
said documents being to the accused unknown, were wrongfully and unlawfully
extracted from the files of the attorneys for the defence by a member of the staff of
such attorneys; that
1977 (2) SA p837

RUMPFF HR
such documents were copied and such copies furnished to the Security Branch of the
South African Police, the investigating officer in these proceedings being a member of
the Security Branch."

In hierdie stadium is dit wenslik om na die regsposisie in verband met 'n spesiale
aantekening te verwys. Art. 351 (1) van A Ord. 34 van 1963 (S.W.A.), soos gewysig,
lui soos volg:
"351. (1) Indien 'n beskuldigde meen dat enige van die verrigtinge in verband met of
gedurende sy verhoor voor 'n hoër hof, onreëlmatig of met die reg strydig is, kan by òf
gedurende sy verhoor òf binne 'n tydperk van veertien dae na sy skuldigbevinding òf
binne die langer tydperk wat op aansoek (in hierdie artikel 'n aansoek om kondonasie
genoem) om gegronde redes toegelaat word, aansoek doen dat op die notule 'n B
spesiale aantekening aangebring word (in hierdie artikel 'n aansoek om 'n spesiale
aantekening genoem) wat vermeld in watter opsig die verrigtinge na bewering
onreëlmatig of met die reg strydig is, en op so 'n aansoek om 'n spesiale aantekening
gemaak tensy die hof waarvan òf die regter aan wie die aansoek om 'n spesiale
aantekening gerig word, van oordeel is dat die aansoek nie te goeder trou gedoen word
nie, òf dat dit beuselagtig of onsinnig is, òf dat die toestaan van die aansoek C op 'n
misbruik van geregtelike proses sal neerkom."

Art. 352 (1) lui:


"352. (1) As 'n spesiale aantekening op die notule gedoen word, kan die person wat
skuldig bevind is op ground van die onreëlmatigheid of strydigheid met die reg wat in
die spesiale aantekening aangegee word, teen sy skuldigbevinding na die appèlhof
appelleer, as kennis van appèl binne 'n tydperk van een-en-twintig dae nadat die
aantekening aldus gedoen is of binne so 'n langer tydperk soos om gegronde redes
toegelaat D word, gegee is aan die griffier van die appèlhof en aan die griffier van die
hooggeregshof."

Art. 356 (1) bepaal die volgende:


"356. (1) Ingeval van 'n appèl teen 'n skuldigbevinding, of ingeval 'n vraag
voorbehou word, soos voormeld, kan die appèlhof -
(a) die appèl handhaaf as hy meen dat die uitspraak van die verhoorhof op grond
van 'n verkeerde beslissing oor 'n E regsvraag tersyde gestel behoort te word of dat om
enige rede geregtigheid nie geskied het nie; of
(b) die uitspraak gee wat by die verhoor behoort gegee te gewees het, of die vonnis
oplê wat by die verhoor opgelê behoort te gewees het; of
(c) so 'n ander bevel soos geregtigheid vereis, uitreik:
Met dien verstande dat al meen die appèlhof dat 'n vraag wat geopper word ten
gunste van die beskuldigde beslis sou kan word, geen skuldigbevinding of vonnis op
grond van 'n onreëlmatigheid of gebrek ten opsigte van die notule of F verrigtinge
tersyde gestel of gewysig word nie, tensy dit na die mening van die appèlhof blyk dat
ten gevolge van so 'n onreëlmatigheid of gebrek, geregtigheid inderdaad nie geskied
het nie."

Ten slotte is daar art. 357 wat soos volg lui:


"357. Wanneer 'n skuldigbevinding en vonnis deur die appèlhof tersyde gestel word
op grond daarvan dat -
(a) die hof wat die beskuldigde skuldig bevind het, nie bevoeg was om dit te doen
nie; of
(b) die akte van beskuldiging ten opsigte waarvan die G beskuldigde skuldig bevind
is, ongeldig of in enige opsig gebreklik was; of
(c) daar 'n ander tegniese onreëlmatigheid of gebrek by die prosedure was,
kan 'n vervolging ten opsigte van dieselfde misdryf waarop die skuldigbevinding en
vonnis betrekking gehad het, hetsy op die oorspronklike aanklag, met gepaste
wysigings waar nodig, of op 'n ander aanklag, weer ingestel word asof die beskuldigde
nie vantevore voorgebring, verhoor en skuldig bevind was nie: Met H dien verstande
dat geen regter of regterlike beampte voor wie die oorspronklike verhoor gedien het,
aan sodanige verrigtinge mag deelneem nie."

Geen spesiale aantekening in verband met Smit is gedoen nie en die aantekening gaan
dus wesenlik alleen oor wat die personeel van Lorentz en Bone sou gedoen het.

Twee vrae ontstaan in hierdie saak: eerstens, of die verrigtinge onreëlmatig of met die
reg strydig was en tweedens, indien wel, of geregtigheid inderdaad nie geskied het nie.
Voordat die Regter die spesiale aantekening
1977 (2) SA p838

RUMPFF HR

gedoen het, het hy tot 'n bevinding van sekere feite gekom. In hierdie Hof is die
korrektheid van die bevindings nie names die Staat betwis nie en dit is alleen die
afleidings wat daarvan gemaak moet word, wat in geskil is. Die feite waaroor daar geen
A dispuut bestaan nie word kortliks opgesom. Mnr. Jansen , wat die vervolger in die
strafsaak teen die appellante was, was daagliks in aanraking met Lt. Dippenaar, die
ondersoekbeampte in die saak, wat ook lik van die Veiligheidspolisie was en wat
gereëld instruksies en informasie aan mnr. Jansen gegee het. Hy het gedurende die
verhoor feitlik as 'n junior van mnr. Jansen B opgetree en hom selfs met die opstel van
mnr. Jansen se betooghoofde gehelp. Mnr. Jansen self het geen kennis gedra van die
onreëlmatighede wat plaasgevind het nie. Ek kan hier byvoeg dat mnr. Jansen in die
strafverhoor formeel alleen namens die Staat verskyn het, terwyl die beskuldigdes deur
twee advokate verdedig is. Mnr. Jansen het 'n moeilike taak gehad en geen C kritiek
kan gelewer word teen die wyse waarop hy die saak gehanteer het nie. Ook in hierdie
Hof het by weer alleen namens die Staat verskyn terwyl die appellante deur drie
advokate verteenwoordig is en terwyl die vraagstukke wat voor die Hof gelê is, van so
'n omvang en aard was, dat hy billikerwyse op hulp geregtig sou gewees het.

Teen die einde van 1975 is die verdediging van die beskuldigdes D opgedra aan die
prokureursfirma Lorentz en Bone van Windhoek. 'n Vennoot in die firma, mnr. Du
Preez, het namens die firma ageer. Du Preez was te alle tye totaal onbewus van die feit
dat 'n sekere mev. Ellis wat in diens van die firma was sedert 1974, vanaf 1972 'n
polisie-informante was en gedurig informasie verskaf het aan 'n Kaptein Nel, wat lid
van die E Veiligheidspolisie was. Ellis was ontvangsdame, telefoniste, klerk en
teleksoperatrise by die firma Lorentz en Bone. Sy het daagliks die pos oopgemaak, was
soms in besit van die sleutels van die kluis, het gedurende kantoorure toegang tot die
lêers gehad en het op 'n keer aangebied om na ure die verklarings van vier van die
beskuldigdes te tik, wat sy ook gedoen het. Du Preez het 'n tikster gehad wat sy
konfidensiële tikwerk gedoen F het, 'n mev. De Beer. Ellis het De Beer genader en haar
gevra om konfidensiële inligting aangaande die verhoor van appellante aan haar te
verskaf en het haar ook gevra om dokumente of verklarings beskikbaar te stel òf direk
òf op so 'n wyse dat die Veiligheidspolisie, verteenwoordig deur Kaptein Nel, afdrukke
daarvan kon maak of dit kon fotografeer. Terwyl die G strafverhoor plaasgevind het,
het Ellis aan De Beer erken dat sy 'n geheime beriggewer van die Veiligheidspolisie
was, dat sy afdrukke gemaak het van 'n aantal verklarings in verband met die verhoor
wat sy aan die Veiligheidspolisie oorhandig het, insluitende 'n verklaring van
beskuldigde nr. 3, 'n aantal ander verklarings wat sy nie, sekere teleksboodskappe en
'n H boodskap in kode van 'n sekere Dawid Meroro, 'n leier van Swapo in Londen. 'n
Vennoot in die firma Lorentz en Bone was 'n sekere Smit wat 'n klerk met die naam
van Mautschke gehad het. Smit was 'n vriend van Nel en het ook opgetree as
beriggewer vir die Veiligheidspolisie. Smit het in die algemeen inligting aan Nel
oorgedra en hy het gedurende 1975 Mautschke probeer oorhaal om as informant van
Nel op te tree in 'n siviele saak rakende sekere verkiesings in Owambo. Behalwe vir
sekere spesifieke onbelangrike informasie wat by omtrent die verdediging in die
onderhawige saak direk aan Nel gegee het is die omvang van sy informasie
1977 (2) SA p839

RUMPFF HR

aan Nel onbekend. Op 20 Mei 1976 is 'n vergadering gehou van die vennote van
Lorentz en Bone nadat die lekkasie ontdek is. Smit het aanvanklik ontken dat hy in
verbinding met die Veiligheidspolisie was maar, gekonfronteer met 'n verklaring van
Mautschke, het hy erken dat hy erken dat hy van tyd tot tyd A inligting uit die kantoor
aan die Veiligheidspolisie gegee het. Ellis en Smit het kort daarna die firma verlaat. Die
verdediging kon nie aantoon presies wat Nel aan Dippenaar oorgedra het nie. Volgens
die getuienis het hulle mekaar baie goed geken en was op verskillende geleenthede
vóór die verhoor en gedurende die verhoor met mekaar in aanraking. Net het in sy B
beëdigde verklaring gesê dat Dippenaar hom versoek het om Dawid Meroro te
arresteer en hy het in sy getuienis ook uitdruklik vermeld dat Dippenaar in Februarie
1976 met hom kom praat het oor 'n sekere Rubin Hauwanga wat volgens Dippenaar
met Staatsgetuies sou gepeuter het. Hierdie man was aangehou maar is deur
Dippenaar in Februariemaand vrygelaat. Nel het in C sy getuienis erken dat indien hy
enige inligting oor die saak teen die appellante sou verkry het, dit sy plig was om dit
aan Dippenaar mee te deel. 'n Paar dae na die aanvang van die verhoor van die
strafsaak het Du Preez en Dippenaar op 'n sekere namiddag 'n informele gesprek
gehad, terwyl Du Preez op uitnodiging van Dippenaar met hom 'n drankie geniet het.
Dit is gemene saak dat Du Preez aan Dippenaar gestel het dat die D beskuldigdes
beweer het dat Dippenaar op ontoelaatbare wyse verklarings van getuies sou verkry
het. Dit is gemene saak dat Dippenaar dit ontken het en aan Du Preez gesê het dat die
beskuldigdes lieg as hulle dit sê. In sy beëdigde verklaring en in sy getuienis het Du
Preez gesê dat Dippenaar hom vererg het, dat Dippenaar gesê het dat hy weet dat die
beskuldigdes lieg E omdat hy alles weet wat in Du Preez se lêers was en dat hy geweet
het wat die advokate se gelde was en wat sy gelde was. In sy beëdigde verklaring het
Dippenaar gesê dat hy hom vererg het oor die beskuldigings en geglo het dat Du Preez
self die skepper van die bewerings was en dat hy (Dippenaar) in sy drif Du Preez
beskuldig het dat hy met Staatsgetuies peuter en dat hy (Dippenaar) weet
waarvandaan die fondse vir die verdediging F kom. Dippenaar het ook die volgende
woorde in sy beëdigde verklaring gebesig:
"Ek het verwys na die verklaring van Elizabeth Namundjembo wat in die besit van die
verdediging was... toe ek gesê het dat hulle met Staatsgetuies peuter".

Afgesien van die bevinding oor feite wat nie betwis word nie, moet ek verwys na ander
getuienis. In sy mondelinge getuienis het Dippenaar ontken dat hy gedurende die
gesprek met Du Preez G die naam Elizabeth Namundjembo genoem het. Volgens hom
het hy haar slegs in gedagte gehad. Dippenaar het ook ontken dat hy na die lêers en
gelde van die verdediging verwys het. In verband met die vraag of daar 'n misverstand
in verband hiermee tussen hom en Du Preez kon gewees het, H het hy in kruisverhoor
o.a. gesê:
"Ek kan nie spesifiek die woorde herhaal nie, maar die moontlikheid bestaan tog dat
ek sou vir hom gesê het 'ag man' ons weet tog alles wat julle aanvang of hoe julle die
saak stuur of wat ook alles".

Hierdie erkenning maak dit heel waarskynlik dat Du Preez se getuienis korrek is, nl. dat
Dippenaar aan hom gesê het dat hy weet wat in die verdediging se lêers is. Du Preez
het onmiddellik na die gesprek aan die advokate meegedeel wat Dippenaar gesê het,
maar omdat geen konkrete getuienis omtrent lekkasie bestaan het nie, is geen verdere
stappe gedoen
1977 (2) SA p840

RUMPFF HR

nie.
Die bewering in Dippenaar se beëdigde verklaring, nl. dat hy verwys het na die
verklaring van Elizabeth Namundjembo wat in besit van die verklaring van Elizabeth
Namundjembo wat in besit van die verdediging was, is 'n sinistere bewering, omdat A
Dippenaar, volgens die getuienis, in daardie stadium slegs kon geweet het dat so 'n
verklaring in die besit van die verdediging was indien dit uitgelek is uit die kantoor van
Du Preez. Dit moet hier ook gemeld word dat volgens die getuienis dit geblyk het dat
daar nie met Staatsgetuies gepeuter is nie.

Na aanhoor van die getuienis het die Hof bevind


B (a) dat mev. Ellis informasie en afskrifte van die dokumente wat hierbo genoem
is, aan Kaptein Nel van die Veiligheidspolisie gelewer het.
(b) dat hierdie informasie op 'n wyse wat nie presies vasgestel kan word nie, in die
besit van Dippenaar C gekom het en dat dit 'n ernstige skending was van die privilegie
wat bestaan tussen prokureur en kliënt.

Klaarblyklik het mens nie hier te doen nie met 'n enkele geprivilegieerde dokument of
verklaring wat tot die kennis van verteenwoordigers van die Staat gekom het nie.
Indien dit so 'n geval was, skyn dit duidelik te wees dat die inhoud van so 'n D
dokument of verklaring toelaatbaar sou wees en dat daar dus nie noodwendig van
benadeling van die beskuldigde sprake kan wees nie. Hoe so 'n dokument of verklaring
verkry is, sou egter wel 'n faktor kon wees by die oorweging of dit toelaatbaar is of nie.
In hierdie verband kan verwys word na wat deur die Privy Council gesê is in Kuruma
Son of Kaniu v Reginam , (1955) 1 All E.R. 236 op bl. 239:
E "No doubt in a criminal case the Judge always has a discretion to disallow evidence
if the strict rules of admissibility would operate unfairly against an accused. This was
emphasised in the case before this Board of Noor Mohamed v Regem , (1949) 1 All E.R.
at p. 370, and in the recent case in the House of Lords of Harris v Public Prosecutions
Director , (1952) 1 All E.R. at p. 1048, per Viscount SIMON. If, for instance, some
admission of some piece of evidence, e.g., a document, had been obtained from a
defendant by a trick, no doubt the Judge might properly rule it out."

F Dit is egter onnodig om in hierdie saak in te gaan op die vraag wanneer so 'n
dokument of verklaring toelaatbaar sou wees. Daar is verskillende uitsprake in ons eie
reg en in die Engelse reg wat nie op 'n vasomskrewe beginsel wys nie, en die
moontlikheid van 'n diskresionêre bevoegdheid van die Hof is waarskynlik nie uitgesluit
nie.

G Soos in die Republiek se Strafproseswet, erken die Strafprosesordonnansie van


Suidwes-Afrika die privilegie wat bestaan tussen regsadviseur en kliënt. Art. 207 van
die Strafprosesordonnansie (soos gewysig) bevat die volgende bepalings:
"Geen advokaat of prokureur of ander regspraktisyn wat behoorlik bevoeg is om in 'n
hof, hetsy binne die Gebied of H elders, te praktiseer, is bevoeg om teen iemand aan
wie hy beroepsdienste gelewer het of deur wie hy uit hoofde van sy beroep
geraadpleeg is, sonder so iemand se toestemming getuienis af te lê nie aangaande 'n
feit, aangeleentheid of saak waaroor so 'n regspraktisyn uit hoofde van sodanige
dienste of raadpleging en sonder sodanige toestemming nie op die 30ste dag van Mei
1961 bevoeg sou gewees het om getuienis af te lê nie: Met dien verstande dat geen
sodanige regspraktisyn, vanweë sodanige dienste of raadpleging, in 'n saak onbevoeg
is of regtens van verpligting vry is nie om getuienis af te lê aangaande 'n feit,
aangeleentheid of saak betreffende, of in verband staande met, die pleeg van 'n
misdryf waarvoor die persoon, aan wie daardie regspraktisyn sodanige dienste gelewer
het of deur wie hy aldus geraadpleeg is, in daardie saak vervolg word, wanneer daardie
regspraktisyn sodanige feit, aangeleentheid
1977 (2) SA p841

RUMPFF HR
of saak te wete gekom het voordat hy beroepsdienste gelewer het of uit hoofde van
sy beroep geraadpleeg is in verband met die verdediging van daardie persoon teen
sodanige vervolging."

Die reg, wat in hierdie verband op 30 Mei 1961 gegeld het, was A die Engelse reg, soos
hier toegepas.

Hierdie artikel is maar net deel van die beroepsprivilegie. So verklaar Schmidt in sy
Bewysreg op b. 413 na aanleiding van die ooreenkomstige art. 232 van die
Strafproseswet, 56 van 1955, van die Republiek:
"Die bepaling dek nie die hele veld van sogenaamde beroeps- of professionele
privilegie nie, want dit gaan slegs oor moontlike getuienis teen die kliënt (d.w.s. waar
hy 'n beskuldigde is) en B oor getuienis deur die raadsman , terwyl die privilegie
volgens gemene reg ook geld waar die kliënt nie 'n gedingsparty is nie en ook, soos
pas aangetoon sal word, betrekking het op getuienis deur die kliënt self of deur
verteenwoordigers van die kliënt of raadsman. Daar kan egter aanvaar word dat die
bepaling nie die gemene reg uitskakel nie."

Die omvang van die privilegie word deur Cross, Evidence , 4de C uitg., bl. 249, soos
volg aangehaal:
"It is pointed out in para. 17 of the 16th Report of the Law Reform Committee that
the privilege covers three kinds of communication:
(a) 'communications between the client or his agents and the client's professional
legal advisers;'
(b) 'communications between the client's professional legal advisers and third
parties, if made for the purpose of pending or contemplated litigation;'
(c) 'communications between the client or his agent and third D parties, if made for
the purpose of obtaining information to be submitted to the client's professional legal
advisers for the purpose of obtaining advice upon pending or contemplated litigation.'"

Namens die Staat is aangevoer dat in hierdie saak daar geen onreëlmatigheid
plaasgevind het nie, dat indien daar wel 'n onreëlmatigheid was, dit nie die verrigtinge
geraak het nie en E dat in elk geval die onreëlmatigheid nie van so 'n aard was dat
geregtigheid nie geskied het nie.

In die onderhawige saak is die privilegie wat tussen die beskuldigdes en hul prokureur
bestaan het op 'n besondere wyse geskend. Vanaf die datum waarop die opdrag tot
verdediging ontvang is tot aan die einde van die saak het die Veiligheidspolisie deur
middel van Kaptein Nel en mev. Ellis die verdediging volledig gepenetreer en die
privilegie is F eenvoudig uitgeskakel. Hoewel daar nie bewys is wat die vennoot Smit se
omvang van sy bydrae tot die skending van die privilegie in die onderhawige saak was
nie en sy bydrae gevolglik nie tot 'n spesiale aantekening gelei het nie, was sy
aanwesigheid as beriggewer van die Veiligheidspolisie ontstellend. Daar is getuienis dat
hy daarteen beswaar gehad G het dat sy firma die beskuldigdes sou verdedig. Dit was
sy persoonlike reg om so 'n gevoel te hê, hoewel by 'n prokureur, as professionele
mens, volgens tradisie, so 'n gevoel nie 'n gevoel nie 'n rol behoort te gespeel het nie.
In elk geval sou mens verwag het, indien hy nog van plan was om as geheime
beriggewer van die Veiligheidspolisie op te tree, dat hy H onmiddellik uit die firma sou
bedank het.

Die volledige uitskakeling van die privilegie is na my mening nie net 'n onreëlmatigheid
nie, maar 'n uiters growwe onreëlmatigheid wat vir sover dit privilegie betref
beswaarlik oortref kan word. Dit ly ook geen twyfel dat die skending van die privilegie
in die onderhawige saak die verrigtinge geraak het nie. Vandat die verdediging begin
het on namens die beskuldigdes op te tree, is die privilegie geskend deurdat Ellis as
geheime beriggewer van Nel opgetree het. Nel, van die Veiligheidspolisie, was op sy
beurt in
1977 (2) SA p842

RUMPFF HR

aanraking met Dippenaar, ook van die Veiligheidspolisie, wat ten nouste saamgewerk
het met mnr. Jansen . Daar is dus 'n kanaal geskep wat geloop het vanuit die kantore
van die verdediging tot by die aanklaer in die saak. Die aanklaer self A was onbewus
van die kanaal maar dat die kanaal direk by die verrigtinge en gedurende die hele tyd
van die verrigtinge ingeskakel was, ly myns insiens geen twyfel nie. Met verwysing na
die Suid-Afrikaanse Strafproseswet het hierdie Hof in S . v Alexander and Others (1) ,
1965 (2) SA 796 op bl. 809, o.a. gesê:
"The basic concept is that the accused must be fairly tried. B Before an irregularity
within the meaning of sec. 364 of the Code can be said to have occurred, that which is
complained of must be associated with the trial in a degree imperilling that basic
concept."

Hoewel die Alexander -saak die vereiste omtrent 'n billike verhoor en geregtigheid
bevestig, het die appellante in daardie saak in hoër beroep nie geslaag nie en dit is
nodig om die C wesenlike verskil tussen die feite van daardie saak en van die
onderhawige saak aan te dui. In daardie saak is elf manlike en vroulike beskuldigdes in
Kaapstad luidens Wet 76 van 1962 van sabotasie aangekla. Dit was 'n lang verhoor en
daar was 'n onderbreking. Al die beskuldigdes is deur advokate verdedig. Gedurende
die onderbreking is die beskuldigdes gehuisves in die gevangenis op Robbeneiland
maar is gerieflikheidshalwe by D geleenthede na Kaapstad geneem om onderhoude
met hul advokate te voer. Op 'n sekere oggend, toe hulle op die punt gestaan het om
na Kaapstad vervoer te word, het 'n bewaarder hulle ondersoek. Die eerste beskuldigde
was in besit van 'n verklaring van 60 bladsye met instruksies aan die verdediging,
namens al die beskuldigdes, wat op versoek van die verdediging E opgestel is. Hy was
ook in besit van drie koeverte bevattende sekere dokumente waarvan die inhoud nie
gemeld hoef te word nie, en 'n afskrif van die oorkonde van die saak tot in daardie
stadium. Die bewaarder het aan die eerste appellant gesê dat hy alles kon saamneem
behalwe die drie koeverte. Die eerste appellant wou alles saamneem of niks nie. Alles
het toe agtergebly en die verdediging in Kaapstad is onmiddellik F daarvan in kennis
gestel. Die bewaarder het intussen vlugtig na die verklaring gekyk en daarna het die
hoofbewaarder (Visser) die verklaring behoorlik gelees. Die verklaring is aan die
beskuldigdes teruggegee op die middag van die volgende dag en daar is toe gemerk
dat daar 'n los stuk papier in was met G die handskrif van ene speurdersersant Van
Wyk, 'n lid van die Veiligheidspolisie, wat 'n kantoor gehad het in Kaapstad, en wat nou
betrokke was met die voorbereiding van die saak teen die beskuldigdes. Die inhoud van
hierdie papier het oënskynlik niks met die saak te doen gehad nie. Later, 'n paar dae
nadat die verhoor hervat is, is indirek na hierdie gebeurtenis verwys H in die
kruisondervraging van Van Wyk. Nog later het sommige van die beskuldigdes, in
mondelinge verklarings wat nie onder eed afgelê is nie, beweer dat een van die redes
waarom hulle nie getuienis onder eed wou aflê nie, die feit was dat "State authorities"
of "officers of the State" die verklaring gelees het. Nadat die appellante skuldig bevind
is, is sekere regsvrae voorbehou en spesiale aantekenings gedoen en daar is o.a. 'n
spesiale aantekening gedoen aangaande hierdie verklaring en daar is betoog dat die
verrigtinge onreëlmatig was en dat geregtigheid nie geskied het nie.

Mondelinge getuienis is aangehoor en Visser het verklaar dat hy die


1977 (2) SA p843

RUMPFF HR

inhoud van die verklaring nòg aan Van Wyk nòg aan iemand anders meegedeel het en
hy het ook verduidelik hoe die stuk papier met die handskrif van Van Wyk (deur
aanwesigheid van sekere lêrs op sy skryftafel) in die verklaring kon gekom het. Na
aanhoor van al die getuienis het die Hof uitdruklik bevind dat die A verklaring destyds
nooit Robbeneiland verlaat het nie en dat dit nòg deur Van Wyk nòg deur iemand wat
verbonde is aan die Veiligheidspolisie gesien is. 'n Spesiale aantekening is gemaak in
verband met die lees van die verklaring soos volg:
"Whether the reading and censoring of the written instructions of accused Nos. 1, 2,
3, 5, 6, 7 and 11 by members of the B Prisons Department at Robben Island prior to
the opening of the defence case constituted an irregularity or illegality in any of the
proceedings in connection with the said accused's trial."

Hoewel Visser hom beroep het op die reg om die verklaring te lees ingevolge die
bepalings van die Wet op Gevangenisse van 1959, is in die uitspraak van hierdie Hof
geen beslissing gegee oor so 'n reg nie maar is aanvaar, vir doeleindes van die C
uitspraak, dat hy nie geregtig was om die verklaring te lees nie. Op die vraag of daar 'n
onreëlmatigheid plaasgevind het, is in die uitspraak van hierdie Hof die volgende
antwoord gegee op bl. 809:
"In truth no connection whatever exists between Visser's reading of the 60 - page
statement and appellant's trial save for the tenuous link provided by appellant's alleged
contemporaneous apprehension - refuted by the fact as D subsequently found by the
learned trial Judge - that Visser might have divulged the contents of the 60 - page
statement to the police or prosecution. In my opinion that link - if it can be so called -
is insufficient to justify the conclusion that Visser's reading of the 60 - page statement
was an irregularity in 'the proceedings in connection with or during' appellant's trial,
and I so hold. I accordingly find that no irregularity, within the meaning of sec. 364 of
the Code, has E been established."

Daarna, in antwoord op 'n betoog in hierdie Hof dat die verrigtinge per se van so 'n
aard was dat geregtigheid nie geskied het nie, is op bl. 810 die volgende gesê:
"Upon analysis, the true nature of appellants' complaint is that the privilege attaching
to the 60 - page statement was breached, not by a person in any way associated with
the trial, but by a member of the Prisons Department. Important though it F is that
communications between client and legal adviser should be privileged (see Wigmore on
Evidence , 3rd ed., vol. 8, para. 2291), the law does not under all circumstances regard
that principle as absolutely fundamental. Thus, apart from the fact that the privilege
may be waived, one who overhears a privileged communication, or perhaps even one
who surreptitiously reads a privileged document, will not always be precluded from
testifying in relation thereto (Wigmore, ibid. , sec. 2326; Phipson on Evidence , 10th
ed., para. 584; Taylor on Evidence , 12th ed., para. 922). I must not be understood as
in G any way derogating from the importance of the privilege attaching to
communications between an incarcerated accused and his legal adviser; on the
contrary, I reaffirm that principle. This notwithstanding, however, I am, in a case such
as the present, where a breach of that principle has not been shown to have had any
sufficient actual connection with the trial of the accused, unable to regard such a
breach as being
'so gross a departure from the established rules of procedure that it H can be said
that the appellant was not properly tried'
(S . v Moodie, supra at p. 759C). In the result, therefore, I conclude that even if,
contrary to the view I have expressed, Visser's reading of the 60 - page statement be
regarded as an irregularity in 'the prodeedings in connection with or during' appellant's
trial, no failure of justice within the meaning of the proviso to sec. 369 (1) of the code
can be said to have in fact resulted therefrom."

In S . v Moodie , 1961 (4) SA 752 (AA) , waarna verwys word, het 'n jurie die
beskuldigde aan moord sonder versagtende omstandighede skuldig bevind. daarna het
dit geblyk dat die adjunk-balju teenwoordig
1977 (2) SA p844

RUMPFF HR
was toe die jurie gedelibereer het maar hy het nie aan die besprekings deelgeneem nie.
Hierdie Hof het bevind dat weens die aard van die onreëlmatigheid die skuld van die
appellant nie van deurslaggewende belang was nie en dat in die omstandighede daar
geen behoorlike verhoor was nie.

A Dit is duidelik dat die aard en omvang van die skending van die privilegie in die
onderhawige saak totaal anders is as dié in die Alexander -saak. Die twee sake kan nie
vergelyk word nie. Dit moet ook opgemerk word dat heel in die begin van die uitspraak
in die Alexander -saak daar verwys is na die feit dat B die ondersoekbeampte in die
saak en die aanklaer nie die verklaring gesien het nie en dat die Hof uitdruklik
onderskei het tussen daardie saak en 'n saak en 'n saak soos die onderhawige deur
met verwysing na die verklaring die volgende te beklemtoon op bl. 807:
"... as reflected in the special entry, the alleged irregularity complained of is
restricted to that circumstance and does not also comprehend a situation whereunder
the reading complained of has in fact resulted in a disclosure of C information thus
obtained to either the investigating police or to prosecuting counsel."

Namens appellante is dit duidelik gestel dat in die onderhawige saak daar nie 'n beroep
gedoen word op werklike benadeling wat bewys is nie. Wel word 'n beroep gedoen op
potensiële benadeling en daar is verwys na enkele feite in die getuienis wat so 'n
benadeling sou kon bewys. Dit is onnodig om op die enkele feite in te gaan want dit
gaan want dit gaan D hier wesenlik oor 'n beleidsvraag.

In S . v Lwane , 1966 (2) SA 433 (AA) ,is die appellant tesame met ander persone
van moord aangekla. Hy en een ander is skuldig bevind en ter dood veroordeel. Dit het
geblyk dat by sy verhoor getuienis teen hom gelei is van 'n vrywillige E
skuldbekentenis wat hy gedoen het terwyl hy by 'n voorlopige ondersoek in 'n ander
saak getuienis afgelê het. In daardie saak is hy nie gewaarsku dat hy nie gewaarsku
dat hy nie vrae hoef te beantwoord wat hom sou inkrimineer nie. Hierdie Hof het
bevind dat weens die besondere omstandighede die appellant by die voorlopige verhoor
aldus gewaarsku moes gewees het en dat F hy by sy eie verhoor die getuienis van sy
bekentenis nie toegelaat moes gewees het nie. Sy bekentenis was van groot belang by
sy eie verhoor en namens die Staat is erken dat indien dit bevind sou word dat hy by
die voorlopige verhoor gewaarsku moes gewees het, sy skuldigbevinding en vonnis
tersyde gestel moes word. Hierdie Hof het dit dan ook gedoen.

Wesenlik het dit in die Lwane -saak gegaan oor die beleid wat G verg dat 'n getuie
behoort te weet dat hy as getuie nie antwoorde op vrae hoef te gee wat hom sou
inkrimineer nie.

Die Strafprosesordonnansie vereis dat indien daar 'n onreëlmatigheid plaasgevind het,
'n skuldigbevinding alleen dan tersyde gestel kan word indien geregtigheid inderdaad
nie H geskied het nie. Die "geregtigheid" waarna hier verwys word, is nie 'n begrip wat
veronderstel dat die beskuldigde noodwendig onskuldig is nie. Geregtigheid wat
geskied het in hierdie sin is die resultaat wat 'n bepaalde eienskap van verrigtinge
aandui. Die eienskap toon aan dat aan vereistes wat grondbeginsels van reg en
regverdigheid aan die verrigtinge stel, voldoen is. Die vraag of onreëlmatige of met die
reg strydige verrigtinge in verband met 'n verhoor van 'n beskuldigde van so 'n aard is
dat dit gesê kan word dat van daardie grondbeginsels nie nagekom is nie, en
geregtigheid dus nie geskied het nie, sal afhang van die omstandighede van elke geval
en sal altyd 'n oorweging
1977 (2) SA p845

RUMPFF HR

van publieke beleid vereis.


In die onderhawige saak was daar vóór die verhoor tot aan die einde daarvan, deur die
optrede van die Veiligheidspolisie, 'n volledige uitskakeling van die privilegie van die
beskuldigdes, in 'n lang saak wat weke van voorbereiding moes vereis het en A
waarvan die verhoor weke lank geduur het en waarin omstandigheidsgetuienis 'n groot
rol gespeel het. Die vraag is wat die publieke beleid verg vir sover dit die taak en plig
van die Veiligheidspolisie betref teenoor die reg van 'n beskuldigde om hom op
privilegie te beroep in 'n saak soos die onderhawige. Dat die Veiligheidspolisie sy taak
moet uitoefen B om te sorg dat gesag en orde gehandhaaf moet word met al die
wettige mag tot sy beskikking ly geen twyfel nie. Publieke beleid verg myns insiens
egter ook dat 'n beskuldigde in 'n saak nie onderwerp behoort te word aan wat in die
onderhawige saak gebeur het nie. In hierdie verband is die problem, myns insiens,
analoog aan dié wat soos volg saamgevat word in die C Skotse saak Lawrie v Muir ,
1950 S.C. (J.) 19 op bl. 26. (Kyk Cross on Evidence , 4de uitg., bl. 277):
"The law must strive to reconcile two highly important interests which are liable to
come into conflict - (a) the interest of the citizen to be protected from illegal or
irregular invasions of his liberties by the authorities, and (b) the interest of the state to
secure that evidence bearing upon the commission of a crime and necessary to enable
justice to be done shall not be withheld from courts of law on any mere D formal or
technical ground. Neither of these objects can be insisted upon to the uttermost. The
protection for the citizen is primarily protection for the innocent citizen against
unwarranted, wrongful and perhaps high-handed interference, and the common
sanction is an action for damages. The protection is not intended as a protection for the
guilty citizen against the efforts of the public prosecutor to vindicate the law. On the
other hand the interest of the state cannot be magnified to the E point of causing all
the safeguards for the protection of the citizen to vanish, and of offering a positive
inducement to the authorities to proceed by irregular methods."

Ek meen dat in die onderhawige saak weens die aard en omvang van die skending van
die privilegie van die appellante dit bevind moet word dat die appellante se beskerming
deur privilegie vóór en gedurende die verhoor totaal verdwyn het F deur die optrede
van die Veiligheidspolisie, dat daardeur die verhoor nie voldoen het aan wat
geregtigheid in hierdie opsig vereis nie en dat geregtigheid dus nie geskied het nie.
Weens hierdie bevinding is dit onnodig om die aansoek tot die ander spesiale
aantekeninge of die appèl self te oorweeg.

Die skuldigbevinding en vonnis van elk van die appellante word G tersyde gestel.

HOFMEYR, A.R., en KOTZÉ, A.R., het saamgestem.

Appellante se Prokureurs: Lorentz & Bone , Windhoek; Webber & H Newdigate ,


Bloemfontein.

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S v EVANS 1981 (4) SA 52 (C)


1981 (4) SA p52

Citation 1981 (4) SA 52 (C)

Court Kaapse Provinsiale Afdeling

Judge van Den Heever R, Vos Ren Vivier R


Heard February 16, 1981

Judgment June 4, 1981

Annotations Link to Case Annotations

[zFNz]Flynote : Sleutelwoorde
*Strafproses - Verhoor - Pleit - Pleit van onskuldig - Beskuldigde nie verplig om op vrae
te antwoord nie - Wet 51 van 1977 art 115 ontneem nie hierdie reg nie - Beskuldigde
geregtig om geen verklaring te maak of geen vrae te beantwoord nie - Verpligting op
hof om hom daaromtrent in te lig - Versuim daaraan 'n onreëlmatigheid - Sodanige
verduideliking moet by stadium van pleitverduideliking gegee word - Moet uit die
oorkonde blyk - Gepaste vorm van verduideliking aan die hand gedoen.
Regspreuke - Nemo tenetur se ipsum prodere - Beskuldigde nie verplig om op vrae te
beantwoord nie - Wet 51 van 1977 art 115 ontneem nie hier die reg nie.
[zHNz]Headnote : Kopnota

Dit is 'n welbekende beginsel in ons reg, soos uitgedruk in die spreuk nemo tenetur se
ipsum prodere , dat 'n beskuldigde nie verplig kan word om op vrae te antwoord nie. 'n
Beskuldigde is nie hierdie reg om te swyg deur die Wetgewer in Wet 51 van 1977
ontneem nie. Ingevolge art 115 behou hy die keuse om te antwoord op vrae van die
hof of om te swyg. 'n Beskuldigde is geregtig om geen verklaring ingevolge art 115 (1)
te maak nie, en om geen vrae ingevolge art 115 (2) te beantwoord nie.

Die hof is verplig om 'n beskuldigde by die stadium van pleitverduideliking in te lig dat
hy nie verplig is om op vrae te antwoord nie. Versuim om hieraan te voldoen is 'n
onreëlmatigheid in die verrigtinge. Die presiese wyse waarop hierdie verduideliking aan
die beskuldigde gemaak word is nie van belang nie. Dat sy regte wel aan hom
verduidelik is moet uit die oorkonde blyk; op so 'n wyse en met voldoende
besonderhede dat beoordeel kan word of dit wel voldoende was. Die aantekening
"regte verduidelik" sou nie voldoende wees nie.

'n Verduideliking wat in die meeste omstandighede voldoende sou wees, sou lees: "Wil
jy 'n verklaring doen wat die grondslag van jou verdediging aandui? Jy hoef nie 'n
verklaring te maak nie. Die hof is geregtig om in elk geval vrae te stel om te bepaal
wat die geskilpunte is, maar jy is nie verplig om daarop te antwoord nie."
[zFNz]Flynote : Sleutelwoorde
*Criminal procedure - Trial - Plea - Plea of not guilty - Accused not obliged to answer
questions - Act 51 of 1977 s 115 does not remove this right - Accused entitled to make
no declaration and to answer no questions - Duty of court to inform accused thereanent
- Failure to do so an irregularity - Such explanation
1981 (4) SA p53
to be given at stage of explanation of plea - Must so appear from record - Suitable form
of explanation suggested.
Maxims - Nemo tenetur se ipsum prodere - Accused not obliged to answer questions -
Act 51 of 1977 s 115 does not remove this right.
[zHNz]Headnote : Kopnota

It is a well established principle in our law, as expressed in the maxim nemo tenetur se
ipsum prodere , that an accused cannot be obliged to answer questions. An accused's
right to remain silent was not removed by the Legislature in Act 51 of 1977. In terms
of s 115 he retains the choice whether to reply to the court's questions or to remain
silent. An accused is entitled to make no statement in terms of s 115 (1), and to
answer no questions in terms of s 115 (2).
The court has a duty to inform the accused at the stage when he indicates the basis of
his defence that he is not obliged to answer questions. Failure to comply therewith is
an irregularity in the proceedings. The exact manner in which this explanation is made
to the accused is not important. However, it must appear from the record that his
rights were explained to him; in such a manner and with sufficient particularity that it
can be judged whether the explanation was sufficient. The annotation "rights
explained" would not be sufficient.

An explanation which would suffice in most circumstances would be: "Do you wish to
make a statement which indicates the basis of your defence? You do not have to make
a declaration. The court is in any event entitled to question you to establish what the
points of dispute are, but you do not have to reply thereto."
[zCIz]Case Information

Appèl teen skuldigbevinding en vonnis van landdroshof. Die feite blyk uit die uitspraak.

E D A J Uys namens die appellant.

J T Schoombee namens die Staat.


1981 (4) SA p54

VIVIER R

Cur adv vult .

A Postea (Junie 4).


[zJDz]Judgment

VIVIER R: Die appellant het in die landdroshof tereggestaan op 'n aanklag van diefstal
van vier lakens van die OK Bazaars in Parow. Sy het onskuldig gepleit. Die landdros het
haar toe ingevolge die bepalings van art 115 (1) van die Strafproseswet 51 van 1977
gevra of sy 'n verklaring wil doen wat die grondslag van haar verdediging aandui,
waarop sy "Nee" B geantwoord het. Daarop het die landdros sonder meer voortgegaan
om vir haar die volgende vraag te stel: "Het jy op 1 Desember 1979 by OK Bazaars,
Parow, vier lakens geneem?" Haar antwoord hierop was "Nee, ek weet niks daarvan
nie".

C Getuienis is namens die Staat gelei dat appellant op die betrokke geleentheid vier
lakens binne die winkel van 'n rak geneem, dit in 'n plastieksak ingesteek en die winkel
daarmee verlaat het sonder om daarvoor te betaal. Die appellant het daarna self getuig
en haar verdediging was dat 'n vriendin wat saam met haar in die winkel was die sak
met die lakens D daarin aan haar gegee het met die versoek om dit vir haar te dra en
dat sy dit toe uit die winkel geneem het onder die indruk dat haar vriendin reeds
daarvoor betaal het.

Appellant is skuldig bevind soos aangekla en tot ses maande gevangenisstraf gevonnis.

Sy appelleer nou na hierdie Hof teen haar skuldigbevinding en E vonnis.

Dit blyk duidelik uit die vrae wat die landdros aan die appellant gestel het gedurende
haar getuienis, sowel as uit sy uitspraak en sy redes vir uitspraak, dat die antwoord
wat die appellant gedurende haar pleitverduideliking verstrek het 'n deurslaggewende
rol gespeel het by die F geloofwaardigheidsbevinding wat die landdros teen die
appellant gemaak het toe hy haar getuienis verwerp het. Die landdros was naamlike
botsing was tussen haar pleitverduideliking en haar getuienis.
Teen hierdie agtergrond was die eerste vraag wat op appèl ontstaan het: of G daar 'n
onreëlmatigheid was gedurende die ondervraging kragtens art 115. Gerieflikheidshalwe
gee ek art 115 (1) en (2) volledig hier weer:
"115 (1) Waar 'n beskuldigde in 'n summiere verhoor aan die ten laste gelegde
misdryf onskuldig pleit, kan die voorsittende regter, streeklanddros of landdros, na
gelang van die geval, hom vra of hy 'n H verklaring wil doen wat die grondslag van sy
verdediging aandui.
(2) (a) Waar die beskuldigde nie ingevolge sub-art (1) 'n verklaring doen nie of dit
doen en dit nie uit die verklaring duidelik is in watter mate hy die geskilpunte ontken of
erken wat uit die pleit ontstaan nie, kan die hof die beskuldigde ondervra ten einde vas
te stel watter bewerings in die aanklag in geskil is.
(b) Die hof kan na goeddunke enige vraag aan die beskuldigde stel ten einde 'n
aangeleentheid op te helder wat ingevolge sub-art (1) of hierdie subartikel geopper is,
en moet by die beskuldigde vasstel of 'n bewering wat nie deur die pleit van onskuldig
in geskil geplaas word nie, aangeteken kan word as 'n erkenning deur die beskuldigde
van daardie bewering, en indien die beskuldigde
1981 (4) SA p55

VIVIER R
aldus instem, word so 'n erkenning aangeteken en geag 'n erkenning ingevolge art
220 te wees."

Eerstens dien daarop gewys te word dat art 115 'n onderskeid tref tussen A die
stadium waar 'n beskuldigde gevra word of hy 'n verklaring wil doen wat die grondslag
van sy verdediging aandui (art 115 (1)) en die daaropvolgende stadium waar die hof
die beskuldigde ondervra ten einde vas te stel watter bewerings in die aanklag in geskil
is (art 115 (2) (a) ). Volgens die uitdruklike bewoording van laasgemelde subartikel
kan die hof B die beskuldigde aldus ondervra ongeag of die beskuldigde 'n verklaring
gemaak het of nie. S v Thela 1979 (3) SA 1018 (T) te 1020.

In die huidige saak was die landdros dus geregtig om die appellant te ondervra ten
spyte van haar antwoord van "nee" op die vraag of sy 'n verklaring wou maak. In
hierdie opsig is die huidige saak te onderskei C van 'n geval soos S v Rakanang 1978
(1) SA 591 (NK) waar die beskuldigde, in antwoord op die vraag of hy 'n verklaring
wou maak, verder gegaan en gesê het "Ek het niks te sê nie". Dit kan beskou word as
'n uitdruklike uitoefening van die beskuldigde se reg om niks te sê, sodat enige D
ondervraging daarna onreëlmatig sou wees. Sien die kommentaar op Rakanang se saak
in S v M en Andere 1979 (4) SA 1044 (B) te 1049A - C. 'n Beskuldigde is heeltemal
geregtig om geen verklaring ingevolge art 115 (1) te maak nie, en om geen vrae
ingevolge art 115 (2) te beantwoord nie.

Voordat ek met die eintlike probleem wat in die huidige saak ten opsige van die
pleitverduideliking ontstaan, handel, wys ek ook net daarop dat wat die landdros se
vraag ingevolge art 115

E (2) (a) self betref, naamlik "Het jy vier lakens geneem by OK Bazaars op 1 Desember
1979?", dit binne die bestek van die sub-artikel val en op sigself heeltemal in orde was.
Die doel van die artikel is om die aard en omvang van die geskilpunte tussen die Staat
en die beskuldigde te bepaal. F Sien S v Moloyi 1978 (1) SA 516 (O) te 519; S v
Rakanang (supra te 593); S v Mayedwa 1978 (1) SA 509 (OK) te 511; S v Mkhize
1978 (2) SA 249 (N) te 251; S v Thomas 1978 (2) SA 408 (B) te 409F - H; S v
Thela (supra te 1020) en S v Seleke en 'n Ander 1980 (3) SA 745 (A) te 753G.

In die huidige saak het die landdros, voordat hy sy vraag ingevolge art G 115 (2)
gestel het, nie aan die appellant, wat onverdedig was, enige aanduiding gegee dat hy
voornemens was om te handel ingevolge art 115 (2) of dat hy aan haar vrae sou stel
en wat die doel daarvan is nie. Dit behoort hy te gedoen het. Sien S v Mayedwa (supra
te 511E) en S v Mkhize 1978 (3) SA 1065 (T) te 1066H - 1067A. Indien hy op hierdie
stadium H behoorlik aan haar verduidelik het wat die doel van sy vrae is, moes hy haar
ook meegedeel het dat sy nie verplig is om op sy ondervraging te antwoord nie.
Daardeur sou sy die bewyslas ten opsigte van elke element van die misdryf steeds op
die Staat laat rus het, soos sy geregtig was om te doen.

Die belangrikste versuim van die landdros was dus dat hy nie vooraf aan die appellant
gesê het dat sy nie verplig was om enige vrae van die hof te beantwoord gedurende die
pleitverduideliking nie.

Dit is 'n welbekende beginsel van ons reg, soos uitgedruk in die
1981 (4) SA p56

VIVIER R

spreuk nemo tenetur se ipsum prodere (of accusare ) dat 'n beskuldigde nie verplig kan
word om op vrae te antwoord nie. Sien R v Camane and Others 1925 AD 570 te 575;
Ex parte Minister of Justice: In re R v Matemba 1941 A AD 75 te 80 ev; en S v
Robinson 1975 (4) SA 438 (RA) te 441. Dit word, meen ek, algemeen aanvaar dat 'n
beskuldigde nie hierdie reg om te swyg deur die Wetgewer in Wet 51 van 1977
ontneem is nie. Ingevolge art 115 behou hy die keuse om te antwoord op vrae van die
hof of om te swyg. Sien, bv, S v Rakanang (supra te 593G); S v M en Andere (supra te
1049A - B B) en S v Muzikayifani and Others 1979 (2) SA 516 (D) te 520B.

Die vraag is of 'n beskuldigde van hierdie reg verwittig moet word deur die hof, en,
indien wel, of die versuim om dit te doen 'n onreëlmatigheid in die verrigtinge daarstel.
Oor hierdie vraag is die beslissings van ons Howe nie eenstemmig nie. In S v Rakanang
(supra ) het VAN DEN HEEVER R C obiter gesê dat 'n beskuldigde wat ongeletterd en
sonder regshulp is, ingelig behoort te word dat hy nie verplig is om op die vrae tydens
pleitverduideliking te antwoord nie.

In S v Thomas (supra ) het HIEMSTRA HR 'n ander standpunt ingeneem, wat


ooreenkom met die standpunt wat hy in die werk, Suid-Afrikaanse D Strafproses 2de
uitg te 225 ingeneem het. Te 410B - C van Thomas se saak verklaar die geleerde
HOOFREGTER onomwonde:
"Magistrates sometimes 'warn' an accused that he need not say anything at the state
of explanation of plea. That is also wrong. There is no warning. On the contrary, there
is an invitation to speak".

Daarna, in S v Muzikayifani and Others (supra) , het LAW WN R tot die gevolgtrekking
gekom dat, hoewel dit wenslik is om die beskuldigde van sy E swygreg te verwittig, die
versuim om dit te doen nie 'n onreëlmatigheid is nie, aangesien die doel van art 115 is
om die hof te help om die grondslag van 'n beskuldigde se verweer te bepaal (te
520C). Hierdie uitspraak word deur S E van der Merwe Handleiding tot arts 112 en 115
van die F Strafproseswet in die volgende woorde te 95 gekritiseer:
"Uitoefening van sy swygreg is 'n prosessuele weg wat vir die beskuldigde oop is. Dit
is, met respek, vreemd dat die Hof in Muzikayifani (supra ) wel erken dat die swygreg
bestaan, maar terselfdertyd byvoeg dat die voorsittende beampte nie die beskuldigde
daaroor hoef in te lig nie. Die rede wat in Muzikayifani (supra te 520C) verskaf word, is
onvoldoende. As dit die oogmerk van die Wetgewer is dat die Hof te alle tye die
beskuldigde se verweer moet kan vasstel met behulp van die G
pleitverduidelikingsprosedure, dan sal daar 'n uitdruklike bepaling moet wees dat die
beskuldigde onder 'n verpligting staan om te antwoord. Die Wetgewer het nie so 'n
buitengewone bepaling in die pleitverduidelikingsprosedure ingevoeg nie. Tans geld die
swygreg nog en die hof behoort nie te poog om deur verswyging van die swygreg die
beskuldigde se verweer te bepaal nie."
H In S v M en Andere (supra ) wat die jongste beslissing is wat ek op hierdie aspek kon
vind, het HIEMSTRA HR weereens die hele kwessie van die beskuldigde se reg om
ingelig te word, bespreek. Soos ek die geleerde HOOFREGTER se uitspraak lees neem
hy nou 'n ander standpunt in as dié wat hy in Strafproses en in S v Thomas ingeneem
het, en kom hy tot die gevolgtrekking dat dit wel nodig is om die beskuldigde van sy
reg om stil te bly, te verwittig. Sien ook die 3de uitgawe van sy werk, Suid-Afrikaanse
Strafproses te 272.

In sy behandeling van die vraag wys HIEMSTRA HR ter aanvang (te


1981 (4) SA p57

VIVIER R

1048H) daarop dat 'n waarskuwing aan die beskuldigde dat hy niks hoef te sê nie, hom
kan intimideer met die gevolg dat hy stilbly. Die geleerde HOOFREGTER gaan dan voort
om die volgende te sê:
"Daarteenoor moet iedereen weet wat sy regte is, en daar word lank reeds A deur die
Howe voorgeskryf dat 'n beskuldigde, bv, moet weet watter vermoedens teen hom kan
ontstaan. Bekker sê te 208:
"Die stelling dat die pleitverduideliking slegs bedoel is om die geskilpunte te bepaal,
gaan nie op nie aangesien die beskuldigde homself sekerlik daartydens kan
inkrimineer. Ek stem gevolglik saam met die beslissing dat die beskuldigde by
pleitverduideliking gewaarsku moet word dat hy niks hoef te sê nie. Volgens 'n senior
streeklanddros word hierdie B waarskuwing ook in die praktyk in laer howe aan
beskuldigdes gegee.'"

Die geleerde HOOFREGTER verwys vervolgens na Rakanang en Muzikayifani se sake en


sê dan te 1049F - G dat die geskil wesenlik gaan oor die vorm van die waarskuwing. Hy
wys daarop dat die karakter van die geleentheid by die pleitverduideliking heel anders
is as dié waar 'n polisieman aan 'n C verdagte 'n waarskuwing gee ingevolge die
Regtersreëls, of waar 'n landdros op die punt staan om 'n bekentenis af te neem. 'n
Waarskuwing by die pleitverduideliking wat byvoorbeeld by dié uit die Regtersreëls
aangepas is, sou tot aftakeling van die proses kon lei omdat die beskuldigde dink dat
dit gevaarlik is om te praat, terwyl in werklikheid D 'n pleitverduideliking wat met
bekwaamheid geneem is, al menige beskuldigde gehelp het wat nie in staat is om sy
verweer na behore voor die hof te plaas by wyse van kruisondervraging en betoog nie.
HIEMSTRA HR sluit dan sy bespreking van hierdie kwessie in die volgende woorde af:
"Ten einde die juiste atmosfeer te handhaaf en nie die waarde van die
pleitverduideliking verlore te laat geen nie, word aan die hand gegee dat die
pleitverduideliking ongeveer soos volg ingelei word:
'Wil jy 'n verklaring doen wat die grondslag van jou verdediging aandui? Die hof is
geregtig om in elk geval vrae te stel om te bepaal wat jou verweer is, maar jy is nie
verplig om daarop te antwoord nie.'
Hetsy hy 'n verklaring doen of nie, kan die hof dan vrae stel en sy F reaksie kan 'n
onderwerp van kruisondervraging wees, indien hy in die getuiebank gaan. Dié
prosedure sal ten volle inpas by erkende gebruike sowel as by die doelstellinge van art
115. Na gelang van die beskuldigde se getuienis, of sy besluit om nie getuienis af te lê
nie, kan van 'n keuse om nie 'n pleitverduideliking te gee nie, dan 'n afleiding gemaak
word."

Uit hierdie passaat, gelees met veral die geleerde HOOFREGTER se G voorafgaande
verwysing na die vereiste van ons Howe dat 'n beskuldigde moet weet welke
vermoedens teen hom kan ontstaan, is dit duidelik, meen ek, dat die uitspraak dit as 'n
vereiste stel dat 'n beskuldigde wel gesê moet word dat hy die keuse het om op die
vrae te antwoord of nie. Sien in hierdie verband die artikel van P M Bekker in die April
1980 uitgawe van SASK te 81, waarin die skrywer die houding wat in S v M en Andere
(supra ) H ingeneem word, verwelkom.
Die houding dat die beskuldigde gesê moet word van sy keuse om nie op die vrae te
antwoord nie, word ook ondersteun deur J R du Plessis in 'n artikel in die Maart 1979
uitgawe van SALJ wat natuurlik verskyn het voor die beslissing S v M en Andere . Met
verwysing na die beskouing van Hiemstra in Strafproses te 225 dat die beskuldigde nie
gewaarsku hoef te word nie, sê die skrywer onder andere die volgende te 11 van die
artikel:
1981 (4) SA p58

VIVIER R
"Is it a fair trial in which a man is casually invited to 'hang himself' without any
intimation that he need not?"

Ook ander van ons skrywers is sterk die mening toegedaan dat dit 'n A vereiste is om
die beskuldigde te sê dat hy nie op vrae hoef te antwoord nie. So, bv, sê R G Nairn in
'n artikel in 1978 SASK 89 te 90, met verwysing na die dictum in S v Mayedwa (supra)
, dat dit wenslik is om vooraf aan die beskuldigde aan te dui dat vrae ingevolge art 115
(2) gestel gaan word, die volgende:
"This direction will to some extent assist the undefended accused to B understand his
position, but it is unfortunate, with respect, that the learned Judge did not take the
next step and direct that the magistrate shall warn the accused that he is not obliged
to make an admission. This move would have brought our inquisitorial system to some
extent into line with, for example, the German system, where the need to offer the
accused C some protection has been recognized. (Cf Van Rooyen supra , and the
contribution by Herrmann in this issue.)"

S E van der Merwe Handleiding tot arts 112 en 115 van die Strafproseswet te 94 ev
vind steun vir sy standpunt dat die hof verplig is om die beskuldigde van sy swygreg te
verwittig in die beslissing van die Appèlhof in S v Lwane 1966 (2) SA 433 (A) waar
beslis is dat die hof verplig is om D 'n getuie in 'n strafsaak te verwittig van sy reg om
te weier om 'n inkriminerende vraag te beantwoord.

Van der Merwe sê omtrent hierdie beslissing die volgende te 94:


"As 'n getuie dus ingelig moet word ten aansien van sy reg om te swyg op
inkriminerende vrae, behoort die beskuldigde a fortiori ook ingelig te word dat hy
homself nie tydens pleitverduideliking hoef te inkrimineer nie en dat hy mag swyg.
Artikel 197 hef wel 'n beskuldigde se voorreg teen selfbeskuldiging op deurdat hy
aangesê kan word om te antwoord op 'n vraag E wat hom op die ten laste gelegde
misdryf kan inkrimineer. Dié artikel slaan egter slegs op die geval waar die beskuldigde
'by strafregtelike verrigtinge getuienis aflê'. In die pleitverduidelikingstadium lê die
beskuldigde nie getuienis af nie. Uit art 197 kan afgelei word dat die voorreg teen
selfbeskuldiging eers verval wanneer die beskuldigde die getuiebank betree. Daarom
behoort die beskuldigde in die F pleitverduidelikingstadium dieselfde behandeling te
ontvang as byvoorbeeld die getuie in Lwane (supra) , naamlik dat hy ingelig moet word
betreffende sy reg dat hy homself nie hoef te inkrimineer nie. Daar moet in gedagte
gehou word dat die Appèlhof in Lwane (supra ) inderdaad 'n vroeëre losse praktyksreël
tot 'n dwingende regsreël verhef het."

Ek wil my vereenselwig met die standpunt dat die hof verplig is om 'n beskuldigde by
die stadium van pleitverduideliking in te lig dat hy nie G verplig is om op vrae te
antwoord nie. Hierdie standpunt is na my mening in ooreenstemming met beginsel en
met die oorwig van die gesag waarna ek hierbo verwys het. Versuim om hieraan te
voldoen is 'n onreëlmatigheid in die verrigtinge, die effek waarvan sal afhang van die
feite en omstandighede van elke besondere saak.

H Wat betref die formulering van die waarskuwing wat aan 'n beskuldigde gegee moet
word moet, na my mening, gewaak word teen 'n te formalistiese benadering tav art
115. Solank daar by die verduideliking aan die aangeklaagde in gedagte gehou word
die opmerking van HIEMSTRA HR in S v M en Andere (supra ) ten opsigte van die
karakter van die pleitverduideliking waarna ek hierbo verwys het, en mits 'n
aangeklaagde duidelikheid het aangaande sy regte, is die presiese wyse waarop dit aan
hom duidelik gemaak word, nie van belang nie. Dat sy regte wel aan hom verduidelik
is, moet natuurlik uit die oorkonde
1981 (4) SA p59

VIVIER R

blyk; op so 'n wyse en met voldoende besonderhede, dat beoordeel kan word of dit wel
voldoende was. Die aantekening "regte verduidelik" sou nie voldoende wees nie, net so
min as wat "Na ondervraging is hof oortuig dat A die beskuldigde skuldig is
ooreenkomstig sy pleit" 'n behoorlike aantekening van art 112 (1) (b) verrigtinge sou
wees.

Ek stem met eerbied saam met die waarskuwing wat HIEMSTRA HR in S v M en Andere
(supra te 1050B) aan die hand gedoen het, hoewel ek die woorde "jou verweer" sou
vervang met die woorde "die geskilpunte" en dit miskien meer B uitdruklik sou stel dat
die aangeklaagde nie verplig is om 'n verklaring te maak nie. Die waarskuwing sal dan
ongeveer as volg lees:
"Wil jy 'n verklaring doen wat die grondslag van jou verdediging aandui? Jy hoef nie
'n verklaring te maak nie. Die hof is geregtig om in elk geval vrae te stel om te bepaal
wat die geskilpunte is, maar jy is nie C verplig om daarop te antwoord nie."

'n Waarskuwing soos voorgestel sal meesal voldoende wees. Ek kan my egter voorstel
dat dit in sommige gevalle ontoereikend kan wees. Daar kan, bv, 'n beskuldigde wees
wat nie die woorde "'n verklaring wat die grondslag van jou verdediging aandui" sal
verstaan nie en vir wie die waarskuwing in eenvoudiger taal gegee sal moet word.

D Dit is ook wenslik om hier te verwys na die derde stadium waarvoor art 115
voorsiening maak, naamlik wanneer die hof by die beskuldigde moet vasstel of die
bewerings wat nie in geskil is nie, as erkennings aangeteken kan word, en indien die
beskuldigde aldus instem, die erkennings aanteken, wat E dan geag word erkennings
ingevolge art 220 te wees (art 115 (2) (b) ).

Die hof moet op hierdie stadium duidelik maak aan die beskuldigde dat hy geen
erkennings hoegenaamd hoef te maak nie, maar dat erkennings van feite wat hy as
korrek aanvaar, die verrigtinge kan verkort. Daar moet gewaak word teen 'n erkenning
probeer skep uit 'n feit waaromtrent die F beskuldigde onkunde beweer. Waar 'n
beskuldigde se houding aangaande enige bestanddeel van die oortreding een is van "Ek
weet nie", moet die bewyslas ten aansien daarvan normaalweg op die Staat bly rus.

Indien die beskuldigde wel 'n verklaring gemaak het by die aanvang van die verrigting
en/of vrae op meerdere geskilpunte beantwoord het, moet daar G nie ' n vae
uitnodiging aan hom gerig word nie: "Kan ek wat jy gesê het in jou verklaring as 'n
erkenning aanteken?" Dit het ek ook al in hersieningsoorkondes raakgeloop.
Erdennings kragtens art 115 (2) (b) is bedoel om geskilpunte uit te skakel, nie om die
beskuldigde te pootjie H nie; en ek beklemtoon weer dat net soos hy moet weet dat hy
'n swygreg het, so moet hy weet dat hy nie verplig is om enige erkennings te maak nie
maar die bewyslas ten volle op die Staat se skouers kan laat bly, indien hy meen dat
dit in sy belang is.

Om terug te keer tot die huidige saak. Dit is, na my mening, duidelik dat die appellant
benadeel is deur haar antwoord tydens die pleitverduideliking. Die landdros het haar
antwoord interpreteer as sou sy gesê het dat sy niks van die lakens af weet nie. Hierdie
siening van appellant se pleitverduideliking, wat die grondslag vorm vir die landdros se
verwerping van die appellant se getuienis as ongeloofwaardig, is 'n
1981 (4) SA p60

VIVIER R

wesenlike waninligting deur die landdros. Die appellant is gevra of sy die lakens by die
OK Bazaars geneem het, en haar antwoord is na my mening heeltemal versoenbaar
met haar getuienis dat sy nie die lakens by die OK A Bazaars geneem het nie maar dat
'n vriendin die lakens geneem het, en dat sy dit toe vir die vriendin gedra het onder die
indruk dat dit klaar betaal was.

Om op te som: In die huidige saak was die landdros verplig om die appellant by die
aanvang van die pleitverduideliking te verwittig dat sy B 'n keuse het om op sy vrae te
antwoord of nie. Sy versuim om die appellant aldus in te lig is 'n onreëlmatigheid wat
tot 'n benadeling van so 'n aard gelei het dat die skuldigbevinding nie kan bly staan
nie. Gevolglik slaag die appèl en die skuldigbevinding en vonnis word tersyde gestel.

C VAN DEN HEEVER R en VOS R het saamgestem.

Appellant se Prokureurs: T H Snitcher, Cohen & Snitcher .

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S v BOESMAN AND OTHERS 1990 (2)


SACR 389 (E)
1990 (2) SACR p389

Citation 1990 (2) SACR 389 (E)

Court Eastern Cape Division

Judge Zietsman J

Heard July 11, 1988; July 13, 1988

Judgment July 26, 1988

Counsel J Bezuidenhout (with him L Jordaan) for the State


D Chetty for the first to fifth and seventh accused
F H Buntting for the eighth accused

Annotations Link to Case Annotations

B
[zFNz]Flynote : Sleutelwoorde
Evidence - Privilege - Legal professional privilege - Waiver of - Accused electing to give
evidence concerning instructions given by them to their counsel and seeking to withdraw
admissions made by their counsel on the ground that counsel acted contrary to
instructions in making admissions - In so doing, accused waiving privilege attaching to
communications made by them to their counsel - Court has, however, an C overall
discretion, based on public policy, to exclude evidence which would otherwise be
admissible - Court, in exercising such discretion, holding that it was in general
undesirable that an attorney or counsel should be compelled to give evidence against his
client and that public policy dictated that accuseds' former pro Deo counsel (who had
been replaced by counsel briefed on behalf of accuseds' families) should not be
compelled to testify even though Court of the view that privilege D attaching to
communications by accused to counsel had been impliedly waived by the accused.
[zHNz]Headnote : Kopnota

It is in general undesirable that an attorney or advocate should be forced to give


evidence against a person for whom he has acted in his professional capacity. However,
where, as happened in casu , the accused E have elected to give evidence concerning
the instructions given by them to their counsel, and where they seek to withdraw
admissions made by their counsel on their behalf on the ground that their counsel acted
contrary to their instructions in making the admissions, they have waived the privilege
attaching to the communications made by them to their counsel in that regard, and
fairness requires that the State should be allowed to call the counsel concerned to give
evidence F concerning such communications.

The Court does, however, have an overall discretion, based on public policy, to exclude
evidence which would otherwise be admissible.

S v Forbes and Another 1970 (2) SA 594 (C) approved and applied.

The Court, in the instant matter, having concluded that it had a discretion in the matter,
held that it was in general undesirable that an attorney or counsel should be compelled
to give evidence against his G client, and that public policy dictated that the Court
should not make an order compelling the accuseds' former pro Deo counsel (who had
subsequently been replaced by counsel briefed on behalf of the accused's families) to
testify as to the communications between them and the accused relating to the
admissions now being sought to be withdrawn, H despite the fact that the Court
remained of the view that the privilege attaching to the relevant communications made
by the accused to the counsel concerned had been impliedly waived by the accused.
[zCIz]Case Information

Argument and rulings on the admissiblity of certain evidence in a criminal trial. The facts
and the nature of the evidence sought to be I adduced appear from the reasons for
judgment.

J Bezuidenhout (with him L Jordaan ) for the State.

D Chetty for the first to fifth and seventh accused.

F H Buntting for the eighth accused.


[zJDz]Judgment

Zietsman J: This case commenced in the Circuit Court at Dordrecht on 17 November


1986. There were, at the start of the trial, eight accused J charged with
1990 (2) SACR p390

ZIETSMAN

A murder, arson and the illegal possession of explosives. Three counsel were appointed
to act pro Deo for the eight accused. Mr Fourie appeared for accused Nos 1, 2, 3, 4, 5
and 7, Mr Hitchings appeared for accused No 6 and Mr Ford appeared for accused No 8.
The case was set down for one week but was not completed in that time. The evidence
of four State witnesses was led and the case was then postponed for further hearing in B
Queenstown as from 9 March 1987.
On 9 March 1987, just before the trial was due to resume in Queenstown, two counsel
arrived from Durban and stated that they had been briefed to take over the defence of
the eight accused.

They were unprepared. They had not read the transcript of the evidence which had been
led and they had not consulted with the accused. After C enquiring into the matter, and
ascertaining the wishes of the accused, it was decided that the counsel appointed to act
pro Deo for the accused should be relieved of any further obligations towards them and
that time should be given to the new counsel to consult with their clients and to prepare
properly for the trial. A third counsel was required and he subsequently also arrived from
Durban.

D The new counsel were the following: Mr Reddy who appeared for accused Nos 1, 2, 3,
4, 5 and 7. Mr Ponnan who appeared for accused No 6 and Mr Sony who appeared for
accused No 8.

When the trial was due to resume application was made for the recall of the four State
witnesses who had already given evidence for purposes E of further cross-examination.
This application was granted. However, there then followed an application by Mr Reddy
for accused No 5 to be referred to the Valkenberg Mental Hospital for a period of 30 days
for observation and determination of his mental condition. This application was also
granted and the case had once again to be postponed.

The trial was resumed in Grahamstown on 1 June 1988 with a new team of F counsel
appearing for the accused. Mr Chetty now appeared for accused Nos 1, 2, 3, 4, 5 and 7,
Mr Moosa appeared for accused No 6 and Mr Buntting appeared for accused No 8. A
report indicating no serious mental abnormality on the part of accused No 5 was handed
in by consent and accepted as being correct, and three of the four State witnesses who
had given evidence in Dordrecht were recalled for further cross-examination. The
whereabouts of the fourth witness could not be G ascertained and it was agreed that the
case would proceed without any further evidence from this witness.

The State called certain other witnesses and then closed its case, and an application by
Mr Moosa for the discharge of accused No 6 was granted.

Of the remaining accused all except accused No 5 gave evidence, and one further
defence witness was called before the case for the accused was closed.

H Mr Bezuidenhout , on behalf of the State, has now submitted that certain witnesses
should be called by the Court. He has, in the alternative, made application for a re-
opening of the State case to enable the State to call the said witnesses. The application
is opposed by both of the counsel appearing for the accused on the ground that the
evidence sought to be led by the State will not be evidence admissible against the
accused. It is this application by the State which now has I to be determined.

The witnesses the State wishes to be called are Advocates Fourie and Ford, the
advocates who initially appeared pro Deo for accused Nos 1, 2, 3, 4, 5, 7 and 8, and the
evidence the State wishes them to give concerns instructions given to them by the
accused at the consultations held prior to the commencement of the trial. The contention
by the defence is that all communications that took place between the accused J and
their pro Deo counsel, after the said counsel had been
1990 (2) SACR p391

ZIETSMAN

A appointed to act for them in their defence, are privileged communications and that
evidence thereof cannot be led since the accused refuse to waive the privilege attaching
thereto.

The problem arises from the fact that the accused, when giving evidence, contradicted
statements put by Advocates Fourie and Ford on their behalf to the State witnesses, and
alleged that such statements were not in accordance with instructions they gave to their
counsel. It B becomes necessary to set out briefly the statements and contradictions
referred to.

The case sought to be proved by the State against the accused is that on 19 October
1985 they were part of a mob of people who threw petrol bombs at, and set fire to, the
house of Mellina Fass (the deceased) and who thereafter attacked the deceased, placed
a tyre around her neck, poured petrol over her and over the tyre, and burnt her to
death. When C the State witnesses gave evidence the following statements were put to
them by the aforementioned counsel: In the case of accused No 1 Advocate Fourie put to
one of the State witnesses that accused No 1 was present when the deceased was
attacked, that he remonstrated with the attackers and tried to stop them, but that he
became afraid and moved away when the attackers swore at him.

D In the case of accused No 2 Advocate Fourie put to one of the State witnesses that
accused No 2 would say that he saw the witness Thandeka Malgazi (also known as
Kwanki) walking along the road pushing a tyre and that he took the tyre from her and
pushed it out of the road. It was also put that accused No 2 would say he chased small
children away from the scene when the deceased was being attacked. E

In the case of accused No 3 Advocate Fourie put to one of the State witnesses that
accused No 3 would admit that he was handed a bottle of petrol by accused No 8 and
that he took part in the attack on the deceased's house. It was put to the State witness
that he would also say he chased young children away from the scene where the
deceased was being attacked.

F In the case of accused No 4 Advocate Fourie put to a State witness that accused No
4 would say he was an onlooker at the scene when the deceased was attacked.

In the case of accused No 7 Advocate Fourie put to a State witness that she, accused
No 8, and two other persons approached accused No 7 and asked her to obtain petrol for
them from her uncle.

G In the case of accused No 8 Advocate Ford put it to a State witness that accused No
8 would admit that she was in possession of a blue bag which had been brought to her
house by accused Nos 2 and 3 and that she handed the bag to accused No 7. The State
case is that the bag contained petrol bombs. It was also put to the witness Yoliswa
Samuel that accused No 8 would say she (accused No 8) struck the deceased once with
an open H hand and that she also saw Yoliswa Samuel throw petrol at the deceased.

When giving evidence the abovementioned accused all denied that the statements to
which I have referred accorded with the instructions given by them to Advocates Fourie
and Ford. Accused No 1 denied that he remonstrated with the attackers who attacked
the deceased. He stated that these allegations were contained in a statement Fourie had
in his possession but that he (accused No 1) had not given the statement to I Fourie. He
alleged that he told Fourie the statement was not correct but that despite this fact Fourie
put such statements to the State witness.

Accused No 2 denied that he had chased children away, and he denied that he saw a
tyre at all on the day in question. He alleged that the statements put by Fourie to the
State witnesses were in complete J conflict with the instructions given by him to Fourie.
1990 (2) SACR p392
ZIETSMAN

A Similar allegations were made by accused Nos 3, 4 and 7 when they gave evidence.
They all denied the allegations made and stated that Fourie had acted contrary to, and in
conflict with, their instructions to him. They stated that when this fact was brought to
Fourie's notice he simply stated that what he had put to the State witnesses was not
important or not dangerous.

Accused No 8 denied that she saw a blue bag, or that she saw accused B Nos 2, 3 and
7, on the day in question. She denied also that she had struck the deceased or that she
had seen Yoliswa Samuel throw petrol at her. She stated that Advocate Ford had acted
contrary to her instructions in putting such statements to the State witnesses.

The statements put by counsel to the State witnesses, and referred to above, are
statements of substance which have a direct bearing on the C question whether the
accused were or were not involved in the attack on the deceased and/or in the attack on
her house. The State wants Advocates Fourie and Ford called as witnesses in order to
ascertain whether in fact the statements put by them to the State witnesses were
statements made to them, or instructions given to them, by the accused. If such
evidence is given it will have the effect of contradicting and possibly discrediting the
accused, but the evidence is sought not merely D for this purpose. Assertions put
specifically and deliberately to State witnesses in cross-examination can amount to
admissions for which no additional formal proof will be necessary (see, for example, S v
W 1963 (3) SA 516 (A) at 523D-E) and in the present case the assertions do place the
accused at the scene of the alleged offences and do, in some instances, point to an
involvement by the accused. As I see it the E evidence given by the accused, to which I
have referred above, amounts to an attempt by them to cancel or withdraw admissions
made on their behalf by their counsel.

The evidence Advocates Fourie and Ford will be able to give will be material evidence.
The question is whether it will be evidence admissible against the accused.

Section 201 of the Criminal Procedure Act 51 of 1977 provides as follows:


F 'No legal practitioner qualified to practise in any court, whether within the Republic
or elsewhere, shall be competent, without the consent of the person concerned, to give
evidence at criminal proceedings against any person by whom he is professionally
employed or consulted as to any fact, matter or thing with regard to which such
practitioner would not on the 30th day of May 1961 by reason of such employment or
consultation, have been competent to give evidence G without such consent: Provided
that such legal practitioner shall be competent and compellable to give evidence as to
any fact, matter or thing which relates to or is connected with the commission of any
offence with which the person by whom such legal practitioner is professionally
employed or consulted, is charged, if such fact, matter or thing came to the knowledge
of such legal practitioner before he H was professionally employed or consulted with
reference to the defence of the person concerned.'

Professional communications by client to attorney are privileged if they are of a


confidential character and for the purpose of obtaining legal advice. See, for example, S
v Kearney 1964 (2) SA 495 (A) at 499E.

During argument the question was posed whether a statement by an accused person
to his counsel concerning his defence to charges brought I against him can ever be a
privileged communication since it is not the accused person's intention that such
communication should remain a secret. His counsel is obliged to put his defence to the
State witnesses, and the accused will himself repeat the allegations if he is called to give
evidence.
Authority for the fact that no privilege attaches to communications which are intended
to be disclosed is to be found in the case of Giovagnoli v Di Meo 1960 (3) SA 393 (D)
where Caney J held that an J instruction to an attorney to
1990 (2) SACR p393

ZIETSMAN J

A negotiate and effect a settlement is not privileged as it is intended to be


communicated to the other party and is not confidential. A similar statement was made
by Kriek J in an unreported case decided by him in the Natal Provincial Division of the
Supreme Court in 1977. The case is S v Zimu and Others and the reference thereto is
case No CC 106/1977. In that case the accused had pleaded guilty and had, through
their counsel, appointed to represent them pro Deo , made certain admissions
confirming B their guilt. They had then been found guilty. Thereafter, when represented
by different counsel, they applied to have their pleas altered to pleas of not guilty in
terms of s 113 of Act 51 of 1977. Oral evidence was led, including the evidence of the
pro Deo counsel who had initially represented the accused, and they testified to what the
accused had told them during consultations held prior to the commencement of the trial.
During the course of argument by counsel, C Kriek J remarked that information given by
a client to his legal representative, which is intended to be conveyed to the Court, is not
privileged. In his judgment, however, he remarked that the accused had waived their
right to claim privilege in respect of consultations held with their counsel.

D It is a cornerstone of our judicial system that there should be the utmost freedom of
disclosure to their legal advisors by persons seeking legal advice, as only then will the
legal advisors be in a position to advise them properly. If a counsel, briefed to defend an
accused person on a criminal charge, can be forced to disclose everything that his client
has told him during consultations held prior to the trial, this could very well inhibit a full
and frank disclosure by the accused to E his counsel.

Section 201 of Act 51 of 1977 refers to the position as it existed on 30 May 1961. The
English law was applicable at that time, and in the case of R v Fouche 1953 (1) SA 440
(W) at 445-6, Ramsbottom J referred to various English authorities from which it is clear
that communications made by a client to his attorney or counsel in connection F with
pending litigation are privileged communications. In my opinion the proviso to s 201,
which refers to knowledge acquired by a legal practitioner 'before he was professionally
employed or consulted with reference to the defence of the person concerned', also
makes it clear, by implication, that communications made by an accused person to a
legal practitioner professionally employed to appear for him at his trial are G included
among the communications to which the privilege applies.

When an accused person consults his legal adviser in connection with a legal defence
to charges brought against him, it is probable that some of the information given by him
to his legal adviser is intended to be disclosed to the Court. This, however, does not, in
my opinion, mean that no privilege attaches to the communications made by the
accused to H his legal adviser during such consultations. What is eventually disclosed to
the Court is, of course, no longer privileged, but the mere fact that some of the
information given during such consultations is disclosed to the Court does not, in my
opinion, render all statements made by the accused to his legal representative no longer
privileged.

The privilege is that of the accused, and not that of the attorney or counsel, and such
privilege can be waived expressly or impliedly. The I question now to be determined is
whether in the present case the accused impliedly waived the privilege attaching to the
communications made by them to their pro Deo counsel when they stated that such
counsel, in putting statements to the State witnesses, had acted contrary to their
instructions.

In the case of Ex parte Minister van Justisie: In re S v Wagner 1965 J (4) SA 507 (A)
Rumpff JA stated at 514D:
1990 (2) SACR p394

ZIETSMAN J
A 'By stilswyende afstand van privilege moet daar altyd 'n element van publikasie
van die dokument of 'n deel daarvan wees wat as grond kan dien vir die afleiding dat die
litigant of aanklaer nie meer die inhoud van die stuk geheim wil hou nie.'

On the same page Rumpff JA quotes with approval the following passage from Wigmore
3rd ed vol 8 para 2327:
B 'There is always also the objective consideration that when his conduct touches a
certain point of disclosure, fairness requires that his immunity shall cease, whether he
intended the result or not. He cannot be allowed, after disclosing as much as he pleases,
to withhold the remainder. He may elect to withhold or disclose, but, after a certain
point, his election must remain final.'

In Halsbury 4th ed vol 17 at 164 para 235 the following is stated:


C 'Privilege may be waived, by the person entitled to claim it, either expressly or by
allowing evidence to be given of matters in respect of which privilege might have been
claimed.'

A similar statement is made by Phipson on Evidence 13th ed at 305 (chap 15 para 20)
namely:
'The privilege may, however, as we have seen, be waived by the D client (though
not by the solicitor), either expressly or impliedly - eg by the client being examined by
his counsel as to the privileged matter.'

Cases where the principles set out above have been applied in our Courts are, inter
alia , the following: S v Fourie en 'n Ander 1972 (1) SA 341 (T), Msimang v Durban City
Council and Others 1972 (4) SA 333 E (D), Euroshipping Corporation of Monrovia v
Minister of Agricultural Economics and Marketing and Others 1979 (1) SA 637 (C) and
Bank of Lisbon and South Africa Ltd v Tandrien Beleggings (Pty) Ltd and Others (2) 1983
(2) SA 626 (W).

In the present case accused Nos 1, 2, 3, 4, 7 and 8, when giving evidence, all referred
specifically to the instructions given by them to their pro Deo counsel, and they alleged
that their instructions were F incorrectly put by counsel to the State witnesses. They
stated that the admissions contained in the statements put by their counsel on their
behalf to the State witnesses were wrongly made.

If the principles set out above are applied it seems clear that the privilege attaching to
the relevant communications made by the accused to their pro Deo counsel was waived
by each of the accused when giving evidence, and these communications are thus no
longer privileged. In G point is the statement in Wigmore (McNaughton Revision) vol 8 at
638 para 2327, namely that
'. . . when the client alleges a breach of duty to him by the attorney, the privilege is
waived as to all communications relevant to that issue . . .'.

My conclusion, then, is that evidence as to whether the accused instructed their pro
Deo counsel to make the admissions which they did make when cross-examining the
State witnesses is evidence rendered H admissible by the accused when they referred to
such admissions and alleged that they were not made in accordance with instructions
given by them to their said counsel.
It is in general undesirable that an attorney or advocate should be forced to give
evidence against a person for whom he has acted in his professional capacity. However,
where, as has happened in this case, the I accused have elected to give evidence
concerning the instructions given by them to their counsel, and where they seek to
withdraw admissions made by their counsel on their behalf on the ground that their
counsel acted contrary to their instructions in making the admissions, they have waived
the privilege attaching to the communications made by them to their counsel in that
regard, and the element of fairness referred to in the passage in Wigmore , quoted by
Rumpff JA in Wagner's case, requires that the State should be allowed to call the counsel
concerned to give J evidence concerning such communications.
1990 (2) SACR p395

ZIETSMAN J

A The evidence to be obtained from counsel will be restricted to the statements put by
counsel to the State witnesses, and to whether counsel were authorised by the accused
to put such statements to them.

I do not consider it appropriate for the Court to call the witnesses in question.
However, leave is given to the State to re-open its case and to call, as witnesses,
Advocates Fourie and Ford for the purposes I have mentioned.

B Postea (13 July 1988).

After giving judgment on the application by the State to re-open its case for the
purpose of calling as witnesses Advocates Fourie and Ford, I was advised that they
would be available to give evidence today, and that they may wish to be represented by
counsel. I do not know what they C intend to do when called upon to give evidence. I
understand that the Bar, in general, is concerned about the judgment given by me. In
the circumstances I consider it advisable to add a clarifying note to my judgment to
indicate my views of what the position will be where the counsel who is alleged to have
put incorrect statements to the State witnesses continues to represent the accused and
is in Court when the accused alleges that his instructions were not followed. I do not
wish D to alter my judgment in any way. I merely wish to make it clear that my decision
that counsel can be called to give evidence applies only to a case such as the present
one where the counsel who are alleged to have put incorrect statements to the State
witnesses were not present in Court when such allegations were made by the accused.

Where an accused person, when giving evidence at his trial, makes statements of fact
which should have been, but were not, put to the E State witnesses he is often asked the
question, 'Did you tell that to your counsel?' This question, it seems, can be asked,
whereas the wider and more general question, 'What did you tell your counsel?' is not
permissible. In this connection see the notes to s 201 of the Criminal Procedure Act 51 of
1977 in Hiemstra Suid-Afrikaanse Strafproses 4th ed at 427 and the cases there referred
to, namely R v Davies and Another F 1956 (3) SA 52 (A) at 57-9, and S v Green 1962
(3) SA 899 (D) at 902A.

If the accused, when asked, 'Did you tell that to your counsel?' answers in the
negative he can be asked why he did not do so. If he answers in the affirmative his
counsel may explain from the Bar that it was his fault that the statement was not put to
the State witnesses, or he may remain silent. If he remains silent the Court may, or may
not, be G entitled to draw inferences therefrom. The same will apply where an accused
person alleges that statements put by his counsel to State witnesses were incorrect
statements and were not in accordance with his instructions. If his counsel, sitting in
Court, remains silent or asks to be given leave to withdraw from the case, the Court,
depending upon the circumstances, may well be entitled to draw the inference that the H
accused has changed his story.

In such cases, where the same counsel still represents the accused, the question of
counsel giving evidence is not likely to arise.

In the present case the State was faced with the difficulty that, at the time when the
accused alleged in evidence that their counsel had, contrary to their instructions, put
incorrect statements to the State witnesses, the counsel in question were no longer
representing the I accused, and were not in Court. There was no reaction or lack of
reaction by the counsel concerned from which inferences could possibly be drawn. It is
for this reason that the State considered it necessary that the counsel concerned be
called to give evidence, and for the reasons set out in my judgment I ordered that the
State be given leave to re-open its case and to call, as witnesses, Advocates Fourie and
Ford J for the purposes mentioned in the judgment.
1990 (2) SACR p396

ZIETSMAN J

A Postea (26 July 1988).

I G Farlam SC , later L S Melunsky SC , (with him J C Froneman ) for Advocates Fourie


and Ford and the Eastern Cape Society of Advocates.

J A van S D'Oliveira , Attorney-General, Eastern Cape, for the State.

After I had delivered judgment in this matter on 11 July 1988, and the B rider thereto
on 13 July 1988, Mr Farlam and Mr Froneman , representing Advocates Fourie and Ford
and also the Eastern Cape Society of Advocates, sought leave to intervene as amici
curiae and to submit further argument on the question whether leave should be given to
the State to reopen its case in order to call as witnesses Advocates Fourie and Ford. Mr
Farlam submitted that the decision given in favour of the C State was an interlocutory
one and that such decision could be reconsidered and reversed if incorrect, and he
referred in this connection to the case of S v Leepile and Others (2) 1986 (2) SA 346
(W).

Mr Farlam submitted further that the said decision was unprecedented and could have
far-reaching effects, and that it was of grave concern to the Society of Advocates.

D The application for leave to intervene was opposed by the State (now represented
by the Attorney-General, Dr D'Oliveira ).

Dr D'Oliveira submitted that the Eastern Cape Society of Advocates had no locus
standi to intervene, and he argued further that their attempt to intervene at this stage
was in any case premature in view of the fact that neither Advocate Fourie nor Advocate
Ford was called to testify and E the question of privilege was not specifically raised by
them or by the accused.

Dr D'Oliveira may be technically correct in submitting that one of the advocates should
first have been called to testify and the question of privilege then raised. However, it is
clear to everyone what the issues are. When the State applied to reopen its case the
point was taken that the evidence sought to be led would be privileged and therefore F
inadmissible, and Mr Farlam stated from the Bar that this was the attitude taken up by
the counsel concerned.

There is a further reason why it was decided not to go through the formality of first
calling one of the advocates in question to the witness stand. One of the two learned
assessors has taken ill and doubt exists whether he will be able to continue to act as
such. I deemed it advisable to deal with the present legal issue, which does not involve
G the said learned assessor, without delay and before any further witness is called to the
stand, and thereafter to ascertain the state of the said assessor's health and decide
whether the case will have to proceed without his further assistance.

A further argument by Dr D'Oliveira , namely that, because the circumstances of the


case have not changed since I delivered my judgment on 11 July, no grounds exist for a
reconsideration of that judgment, I consider not to be sound in view of the nature of the
intervention H sought. What the Society of Advocates seeks to do is to submit further
argument in an interlocutory matter in an attempt to persuade me to change a decision
which they feel is wrong and could have serious consequences for the Society.

I decided to allow Mr Farlam to appear and he submitted further argument in the


matter. Argument was then submitted by Dr D'Oliveira . Mr I Melunsky, who has taken
over from Mr Farlam , delivered the reply to Dr D'Oliveira's submissions.

The attitude of Advocates Fourie and Ford, as stated to me by Mr Farlam , is that they
will decline to give the evidence sought from them unless ordered to do so by the Court.

Mr Farlam's submissions are two-fold. He submits first of all that it was correctly
decided in the judgment of 11 July that the evidence J sought to be led
1990 (2) SACR p397

ZIETSMAN J

A by the State was evidence of privileged communications that took place between the
accused and their pro Deo counsel, and would in the normal course be evidence
inadmissible against the accused, but he submits that it was thereafter incorrectly
decided that the privilege attaching thereto had been waived by the accused. In the
alternative, Mr Farlam submits that, if the accused have in fact waived the privilege
attaching to the communications in question, the Court still has a discretion to B refuse
to compel Advocates Fourie and Ford to testify and that I should, in the exercise of that
discretion, refuse the application by the State.

I shall deal firstly with the question whether it was correctly or incorrectly decided in
the judgment delivered on 11 July that the accused had impliedly waived the privilege in
question.

C Mr Farlam submits that an implied waiver can be held to have occurred only where it
is proved that the persons in question (in this case the accused) had full knowledge of
their rights and decided to abandon those rights. He submits that in the present case, in
respect of accused Nos 1, 2, 3, 4 and 7 (but not accused No 8) it was only under cross-
examination that they were questioned about their instructions to their counsel. Mr
Farlam submits that, when they were asked those D questions, they should have been
apprised of their rights and asked whether they intended to abandon those rights. If they
had then answered in the affirmative a waiver would have occurred.

Mr Farlam concedes that if, when giving their evidence-in-chief, the accused had, in
answer to questions put to them by their own counsel, referred to the propositions put to
the State witnesses and had stated E that such propositions had been wrongly put by
their pro Deo counsel, and had then stated what instructions they had given to those
counsel, the privilege attaching to the communication of those instructions would have
been waived by the accused. He submits, however, that the same does not apply where
the evidence concerning the instructions to their counsel is elicited only when the
accused are being cross-examined.
F The facts of the matter concerning accused Nos 1, 2, 3, 4 and 7 can be stated briefly
as follows. Propositions containing admissions were put to the State witnesses by the pro
Deo counsel who was then acting

for the said accused. The said pro Deo counsel then dropped out of the case and a new
counsel (Mr Chetty ) was briefed to represent accused Nos 1, 2, 3, 4, and 7. Mr Chetty ,
one must assume, consulted with his clients and presumably he was told by them that
the propositions put by G their pro Deo counsel were incorrect and that their defences to
the charges were of a different nature. The question could be asked whether Mr Chetty
should have advised the Court of this fact, and should have dealt with it when his clients
were giving their evidence-in-chief. If he had done so then, according to Mr Farlam's
submissions, the privilege attaching to the relevant instructions given by the accused to
their pro H Deo counsel would have been waived. Mr Chetty decided not to do so,
although he did put to State witnesses, who were recalled, propositions which did not
accord with the propositions put by their pro Deo counsel. He did not state specifically
that his clients denied the correctness of the propositions put by their pro Deo counsel,
and he did not deal with the matter when his clients gave their evidence-in-chief. Can
the fact that Mr Chetty omitted to deal with the matter when leading the evidence I of
his clients, and left it to be dealt with when they were cross-examined by counsel for the
State, affect the issue and be the determining factor as to whether or not the privilege
had been waived?

As I see it the position is as follows. The communications made by the accused to their
pro Deo counsel were privileged communications. However, when the said pro Deo
counsel put to the State witnesses what the accused would say, those parts of the
instructions given by the J accused to their counsel were no
1990 (2) SACR p398

ZIETSMAN J

A longer privileged. The Court would be entitled to assume that the propositions put by
counsel accorded with his instructions and in the normal course of events no further
problem would arise. However, when the accused gave evidence and disputed the
correctness of the propositions put by their counsel, they could not then allege that they
were giving evidence concerning privileged communications and that such
communications remained privileged. They could not, in other words, give B their version
and prevent the calling of other evidence to rebut such version.

It may be that the privilege was waived the moment the propositions were put by pro
Deo counsel to the State witnesses. If not, such waiver did, in my opinion, take place
when evidence