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S v Duda and Another (CA&R 79/2006)  ZAECHC 86 (6 June 2008)
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In the High Court of South Africa
(Eastern Cape Division) Case No CA&R 79/2006
In the matter between
SIZWE DUDA 1st Appellant
MANDIHLUME SEKU 2nd Appellant
THE STATE Respondent
Summary Appeal – conviction on 3 counts of assault – single witness evidence – material misdirections by trial court relating to the evaluation of the evidence and the findings of the court – convictions set aside.
 The appellants are policemen. They and a third policeman were charged in the district court in Queenstown with three counts of assault, the allegations being that they assaulted the complainant, a suspected car thief, at the Queenstown police station on Friday, 15 July 2005, Saturday 16 July 2005, and Sunday 17 July, 2005. The third policeman, accused No 2 at the trial, was acquitted. But the two appellants were convicted and given a sentence of R1500 or 3 months’ imprisonment. They now appeal against their convictions and sentence with the leave of this court.
 I shall for convenience refer to the two appellants as accused Nos 1 and 3, because that is what they are called in the record.
 The background is that the complainant was detained in the police cells in Queenstown on an unrelated charge. He is alleged to have told a fellow cell mate that he had previously stolen a police vehicle from outside the police station after he had been released from the police cells. The cell mate told accused No 3 who decided to question the complainant about the incident. He took the complainant from the cells to his office at the police station in order to do so. The assaults allegedly took place in his office during the course of the interrogation.
 particulars of the three assault charges are set out in the charge sheet. In general terms, all three policemen are alleged to have hit the complainant with open hands and fists, kicked him, and struck him with a knob stick. To prove these allegations the State called three witnesses. They were the complainant, who was the only witness who could testify about the assaults, and two of his brothers, who allegedly came to visit him in the cells while one of the assaults was in progress and gave supporting evidence of what they saw and heard when they went to the office in which the complainant was being interrogated.
 The complainant’s evidence was that on Friday, 15 July 2005 he was taken by accused No 3 from the police cells to accused No 3’s office at the police station where he was interrogated about a stolen vehicle. Accused Nos 1 and 2 were present. In the course of the interrogation he was assaulted, apparently by accused Nos 1 and 3, or one or other of them, with a knob stick. They also hit him with fists and kicked him. His description makes it plain that this was a serious assault. During the assault accused No3 told accused No 1 not to hit him in the face because this would leave visible marks. Accused No 2 did not take part in the assault. Towards the end of the incident two of the complainant’s brothers came into the office. They did not enter at a time when he was being assaulted, but they had heard screams or cries from the direction of the office before they got there. When they saw what they regarded as something untoward being done to the complainant, they left to call another of his brothers who was waiting in their car. They and the third brother returned. When they entered there was no assault taking place, but there was a scuffle between the complainant and accused No 2 near the door, when accused No 2 caught the complainant by the scruff of his neck in what was described as a choking manner. One of the brothers noticed swelling to the complainant’s arm, and saw that he was limping when being taken back to the cells. The complainant said that he was taken back to accused No 3’s office the following day, Saturday, 16 July 2005, where he was again hit with fists and kicked by accused Nos 1 and 3. Accused No 2 was not present. On Sunday, 17 July 2005 he was taken to the same office where accused No 3 again assaulted him by punching him. The other two accused were not present on this third occasion. Two of the complainant’s brothers gave supporting evidence of what happened on the occasion of the first assault on Friday, 15 July 2005.
 Accused No 3 was the only witness for the defence. He admitted taking the complainant to his office in order to interrogate him on Friday, 15 July 2005. But he denied the allegations of assault. He further denied interviewing or assaulting the complainant on the ensuing Saturday or Sunday.
 The magistrate recorded a verdict of guilty in respect of both appellants, and imposed sentence on both of them. But the reasons for the verdict are not satisfactory. They show that the conviction and sentence are irregular, and that the magistrate committed material misdirections.
 In the first place, the conviction is ambiguous. It is not clear what the conviction was intended to embrace or to which of the three counts it was intended to relate. The judgment referred only to the evidence on count 1. No evaluation was given of the evidence on the other two counts, and no findings were made in respect of that evidence. The judgment rejected the denial of accused No 3 as not being reasonably possible in the light of the evidence given by the three State witnesses on count 1. If this was also a rejection of his evidence on counts 2 and 3, it was not supported by reasons. The judgment does not say whether the magistrate accepted the evidence of the complainant, whether in all or in part only, and if in part, what part. She simply found accused Nos 1 and 3 guilty ‘as charged’. She did not specifically say that she found the appellants guilty as charged on all three counts. She also did not say that she treated the three counts as one for the purposes of sentence. She passed sentence as if there was a conviction on only one count. In the absence of specific findings on the merits and sentence, the only way to make sense of the proceedings is to assume that the appellants were convicted on all three counts, and that the court took the three counts as one for the purpose of sentence. Even in that event it is necessary to comment that the magistrate could not have applied her mind to the evidence in a proper judicial manner. If she convicted accused No 1 on all three counts, she overlooked the evidence of the complainant that accused No 1 and accused No 2 were not present on the occasion of the alleged assault on Sunday, 17 June 2005 (count 3). She should have returned a verdict of not guilty in respect of accused No 1 on that count. She failed to do so. The State has had no option but to concede that the conviction of accused No 1 on count 3 cannot stand.
 The misdirections in the magistrate’s reasons go to the heart of the matter. The magistrate said at the commencement of her ex tempore judgment that the complainant ‘can be treated as an independent witness’. He most certainly cannot. I suppose it is possible that this was a slip of the tongue during the course of an ex tempore judgment in a language which is not the magistrate’s mother tongue, and that the magistrate intended to say not that he was independent but that he was a single witness on the central issue. If that is so, the misdirection need not be fatal.
 But no such charitable interpretation can be placed on the other misdirections. The magistrate’s judgment went on to say that ‘[b]efore this Court it is common cause that the complainant on the day in question was assaulted’. This is repeated a number of times in the pages that follow. The magistrate also said on a number of occasions that the issue before her was the identity of the person who committed the assault, and proceeded to deal with the clarity and reliability of the complainant’s identification of the persons responsible for the assault, and the supporting evidence of his brothers who place the three policemen in the office with the complainant when they entered it on the Friday just after the assault was committed. The judgment then contained the following passage:
‘. . . it is common cause the assault did take place on the body of the complainant and the complainant alleges before this court that it was accused No 1 and accused No 3 that assaulted him. The question as to what was used which day amongst the three days might not be so material what is important an assault did took place or complainant was assaulted on the day in question. And complainant could identify that the people who assaulted him was accused No 1 and accused No 3’.
 It is clear from these and other passages in the judgment that the magistrate considered that the real issue before her was the identity of the person or persons who assaulted the complainant, the assault itself being common cause. That was never the issue. What was common cause was that the appellants and accused No 2 were the three policemen involved. It was never common cause that the complainant was assaulted. Whether he was assaulted or not was the central issue, the major dispute between the prosecution and the defence. As the trial developed the manner in which the complainant alleged that he was assaulted on each of the three days became of vital importance, and the magistrate was quite wrong in stating that ‘it might not be so material’. It turned out to be vitally material because of contradictions between complainant’s evidence and the allegations of assault alleged in the indictment. The appellants were charged on count 1 (the Friday) with assaulting the complainant with open hands and fists; on count 2 (the Saturday), with hitting him with a knob stick and kicking him; and on count 3 (the Sunday), with hitting him with fists and kicking him. But the complainant testified in vivid detail about a prolonged assault with a knob stick which broke and had to be replaced as part of the first assault, on the Friday, and denied that a stick was used on any other occasion. This was inconsistent not only with the allegation in the charge sheet. It was also contradicted by his statement to the police, in which all the detail of the knob stick assault, including its interruption by his relatives bursting into the room, was unequivocally said to be part of the second assault, which took place on the Saturday. An unexplained discrepancy of this nature cannot simply be dismissed as ‘not so material’ when the issue is the reliability and acceptability of the evidence of a single witness on whether an assault took place, and whether corroboration of it was to be found in the evidence of his brothers. By regarding the issue of an assault on the complainant by someone as common cause, the magistrate in effect precluded herself from evaluating the evidence on the crucial issue with the critical scrutiny required by an application of the cautionary rule to single witness implication. This misdirection goes to the root of the acceptability of the State evidence on counts 1 and 2. It not only vitiates the magistrate’s reasons for rejecting the evidence of accused No 3; it also excludes a conclusion that the police assaulted the complainant in the manner alleged on each of those two occasions.
 This is not a case where it is possible to conclude that the misdirection makes no difference because, in any event, the evidence cured the defect and established the guilt of the appellants beyond reasonable doubt. There were a number of other valid criticisms of the complainant’s evidence which preclude a conclusion that the State discharged its onus. For example, it is not clear from a reading of the complainant’s evidence whether it was his case that accused No 1 used the knob stick or whether it was accused No 3; there were other discrepancies about how he was assaulted; and his evidence about his medical examination was highly improbable to the point of being fanciful. He said that he was taken to the doctor’s rooms but not to her surgery, that he was not examined at all, merely given tablets by someone other than the doctor and told that the doctor would put his arm in ‘cement’ and to bandage his ankle the following day, which was not done. That is why, he explained, the medical report put to him in cross-examination (but not put in as an exhibit), indicated that he had no injuries other than a slight swelling to the forearm. It cannot be said, therefore, that the complainant was a single witness whose evidence was clear and satisfactory in all material respects.
 I must, however, comment that this conclusion leaves me with a feeling of unease. The complainants’ evidence had, in part, a ring of truth about it, and his version received a measure of seemingly sound support from the evidence of two of his brothers who heard cries from the direction of the room in which he was being interrogated, and who testified to signs of injury to the complainant when he was taken back to the cells. Although they saw no assault upon him, they saw him involved in a scuffle with accused No 2, and they reacted afterwards in a way which was completely consistent with a genuine belief that there was reason to believe that he had been assaulted by his interrogators. It is difficult to conclude that this was a fabricated reaction, or that it was entirely unfounded and that nothing questionable had happened to the complainant to give rise to it. This feeling of unease is obviously not enough to remedy the shortcomings in the State case, which has to be proved beyond reasonable. But I am left with an impression that the truth has not come out. This could have been the underlying cause of the magistrate misdirecting herself. Furthermore, there are uncertainties about the facts which could and should have been cleared up with reference to medical evidence or official police records or by proper consultation with witnesses and amendments to the charge. These points raise questions about the way in which the matter was investigated and prosecuted. Furthermore, the prosecution did not object to and the court did not prevent an improperly conducted cross-examination. Many of the criticisms of the complainant’s evidence were based on alleged contradictions and discrepancies which were more apparent than real, and which were extracted by a brow-beating cross-examination which should not have been allowed. Cross-examination must, of course, be forceful and penetrative. But this cross-examination was at times thoroughly discourteous. The cross-examiner was allowed to put questions loaded with disrespectful comment about the witness and with the cross-examiner’s views of the witness’s poor demeanour. The result was that in some respects the witness was not treated fairly. The combined effect of all of this leads me to suspect that justice may not have been done in this case.
 Be that as it may, the result of it all is that on the evidence placed before the trial court I have no alternative but to conclude that the convictions and sentence cannot be sustained. The appeal is allowed. The convictions and sentence of both appellants are set aside.
Judge of the High Court
6 June 2008
LIEBENBERG J: I agree.
Judge of the High Court