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Last Updated: 4 September 2004
THE SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Case number 593/02
Reportable up to para [14]
In the matter between:
SHANE JAIPAL
APPELLANT
and
THE STATE
RESPONDENT
CORAM: FARLAM, MTHIYANE JJA et PONNAN
AJA
HEARD: 17 MAY 2004
DELIVERED: 27 MAY
2004
SUMMARY: Criminal Procedure : Irregularity in connection with
or during trial – assessors seen by public to be present in same
office as prosecutor and investigating officer during first eight days of trial
– whether fatal irregularity – in fact
no discussion between
assessors and prosecutor and investigating officer – full explanation
given in open court when special
entry applied
for.
________________________________________________________
JUDGMENT
________________________________________________________
FARLAM JA
INTRODUCTION
[1] The appellant in this matter was
convicted by Squires J and two assessors in the Durban and Coast Local Division
of the High Court
on a charge of murder and sentenced to twenty years
imprisonment.
[2] He now appeals to this Court against his conviction
both on the merits and on the ground of an alleged irregularity stated in a
special
entry made on the record of the case by the presiding judge in terms of
section 317 of the Criminal Procedure Act 51 of 1977, as
amended.
THE
SPECIAL ENTRY
[3] The special entry made on the record is in the
following terms:
‘That the proceedings in the trial of the accused are
irregular and not according to law, in that the State Advocate, on a daily
basis, the investigating officer with him from time to time and one of the State
witnesses with both of them on isolated occasions,
had been present in the same
office accommodation being used by the assessors, both before the commencement
of court proceedings
and/or during court recesses or adjournments, and were so
seen by members of the public attending the trial.’
[4] The
application for the special entry, which was eventually granted by the trial
Court after the appellant had been convicted and
sentenced, was originally made
during the course of the trial, on the eighth day thereof. Counsel for the
appellant stated to the
court when the application was brought that he had
himself seen that the assessors were, as he put it, sitting in the same office
on a daily basis as the prosecutor, the investigating officer and the
deceased’s son, who was a State witness. He said that
this did not bother
him because he knew how things work, as he put it, now and then on circuit.
Later in his address he said that
he did not suggest that the assessors
discussed the case with the others in the office. He said that after he had been
approached
by members of the public who were concerned about the matter he was
instructed by the appellant to apply for the special entry.
[5] The
State Advocate who was conducting the prosecution then told the court that he
did not have an office of his own in the building
where the court was sitting
and that he and the investigating officer had been obliged from time to time to
make telephone calls,
from the office where the assessors were, to witnesses to
tell them that they were needed at court and to make arrangements in relation
thereto. (It should be explained at this stage that the trial court was sitting
in the Pinetown Magistrate’s Court as there
was no court room available at
the Durban High Court.) He said that in the telephone calls that he made he did
not discuss the case
with any of the witnesses. He explained that the
investigating officer had been present when the telephone calls in question were
made because he had the witnesses’ telephone numbers in his possession. As
appears from the special entry the deceased’s
son was present with the
investigating officer and the State Advocate on isolated occasions when these
telephone calls were made.
[6] After the State Advocate had given his
explanation as to how it came about that he and the investigating officer and
the deceased’s
son were in the same office as the assessors, the trial
judge asked the appellant’s counsel whether he was applying for the
recusal of the assessors. Counsel for the appellant replied as
follows:
‘No, I’m not applying for recusal of assessors and I
just want to put the record straight, not for a moment do I say that
the case
was discussed by them with the prosecutor, or with the State witnesses present
in the office, like this morning again the
State witness was there. It
doesn’t matter before or after his evidence, or whether or not they
discussed it, the fact is that
they were present just about every day in the
same office. No, I’m not asking for the recusal. All I’m asking is
the
Court to grant me the leave, namely to make the special entry so this matter
can be argued in the AD’.
[7] In arguing the appeal on the
special entry in this Court, counsel for the appellant contended that as a
result of the facts set out
in the special entry an irregularity had occurred in
connection with or during the trial which involved so gross a departure from
the
established rules of procedure that it could be said that the appellant had not
been properly tried and that there had per se
been a failure of justice, with
the result that it was unnecessary to enquire whether the guilt of the appellant
was in any event
proved beyond reasonable doubt.
[8] Counsel relied
strongly on the decision of this Court in S v Moodie 1961 (4) SA 752
(AD), and in particular the passage at 758 G-H where Holmes JA said that whether
an irregularity amounted per se
to a failure of justice depended upon the nature
and degree of the irregularity. In developing his submissions in this regard
counsel
for the appellant referred to the well known dictum of Lord Hewart CJ in
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 which reads
as follows:
‘A long line of cases shows that it is not merely of some
importance but is of fundamental importance that justice should not
only be
done, but should manifestly and undoubtedly be seen to be done’.
In
this case the acting clerk to justices who convicted McCarthy of dangerous
driving was a member of the firm of solicitors who acted
for the proposed
plaintiff in proceedings for injuries sustained in the same collision between
motor vehicles which was the subject
matter of the prosecution before the
justices. When the justices retired to consider their verdict the acting clerk
went with them
taking his notes of the evidence in case the justices might
desire to consult him. In fact the justices came to their conclusion
without
consulting him and, as Lord Hewart CJ put it, ‘he scrupulously abstained
from referring to the case in any way’.
Lord Hewart CJ regarded the
acting clerk’s silence as irrelevant and said:
The question . . . is
not whether in this case the deputy clerk made any observation or offered any
criticism which he might not properly
have made or offered; the question is
whether he was so related to the case in its civil aspect as to be unfit to act
as clerk to
the justices in the criminal matter. The answer to that question
depends not upon what actually was done but upon what might appear
to be done.
Nothing is to be done which creates even a suspicion that there has been an
improper interference with the course of
justice.’
He said that he was
satisfied that the conviction had to be quashed
‘unless it can be shown
that the applicant or his solicitor was aware of the point that might be taken,
refrained from taking
it, and took his chance of an acquittal on the facts, and
then, on a conviction being recorded, decided to take the point. On the
facts I
am satisfied that there has been no waiver of the irregularity’.
The
conviction was quashed.
[9] Counsel for the appellant submitted that
the facts of this case are in all material respects on all fours with those in
the Moodie case. In that case the irregularity complained of, which was
held (at 759 ) to be ‘of such a nature as to amount per se to a
failure of justice’, was the fact that the deputy sheriff was closeted
with the jury during their deliberations. Counsel
for the appellant drew
attention to the fact that the deputy sheriff took no part in the discussion in
the jury room and submitted
that it was thus clear that the question to be
considered was not whether the administration of justice was interfered with but
whether
it appeared to be.
[10] Counsel also relied on the decision of
this Court in S v Roberts 1999 (4) SA 915 (SCA). In that case the trial
magistrate adjourned the court after the accused had been convicted and summoned
the
prosecutor to see him. He then proceeded to discuss the case with the
prosecutor in the absence of the accused’s counsel. An
application for his
recusal was refused by the magistrate. This Court held that the discussion
between the magistrate and prosecutor
was irregular and that in the particular
circumstances of the case the proceedings even before conviction were tainted
and the conviction
had to be set aside. In the course of his judgment Howie JA
said (at 922 F) that if the discussion between the magistrate and the
prosecutor
occurred before conviction ‘there can be no question but that the
conviction would have been fatally irregular’.
Earlier in the judgment
(at 922) D-F), in the passage relied on by the appellant’s counsel, he
referred to what he called ‘hallowed
authority’ that ‘justice
be done and be seen to be done.’ He continued:
‘In what is seen
to be done, appearances play a varied role in the fulfilment of the need for
fairness. The appearance of justice
is not enough. Justice must not simply seem
to be done. On the other hand the appearance of bias may be enough to vitiate
the trial
in whole or in part.
That justice publicly be seen to be done
necessitates, as an elementary requirement to avoid the appearance that justice
is being
administered in secret, that the presiding judicial officer should have
no communication whatever with either party except in the
presence of the other
: R v Maharaj 1960 (4) SA 256 (N) at 258B-C. That is so fundamentally
important that the discussion between the magistrate and the prosecutor in
the
instant case warranted on its own, without anything more, the setting aside of
the sentence.’
Counsel for the appellant stressed that these dicta
apply also to discussions involving the assessors, who make up, as he
pointed out, the majority of the court.
[11] Relying also on paras
[32] to [34] of the judgment of the Constitutional Court in Van Rooyen and
Others v The State and Others 2002 (5) SA 246 (CC) at 272B-273E, he
emphasised the importance, in a case such as this, that it appear to the public
that justice is being done,
the test being ‘how things appear to the
well-informed, thoughtful and objective observer’.
Counsel also relied
on Hlophe J’s dictum in S v Mayekiso and Others 1996 (1)
SACR 510 (C) at 513 h:
‘confidence in the legal system is destroyed
when right-thinking people go away thinking that the Judge or his assessor was
biased.’
In this case, he submitted, it was clear from the reactions of
the members of the public who had approached him and expressed their
concern
about the fact that the assessors and the State Advocate and the investigating
officer were seen in the same office on a
daily basis that right thinking people
were going away having lost confidence in the legal system in so far as the
present case was
concerned.
[12] In my view it is important to note
that the Constitutional Court in para [34] of its judgment in the Van Rooyen
case, pointed out that ‘the perception that is relevant is ‘a
perception based on a balanced view of all the material
information’. In
the instant case the material information on which public perceptions would be
based would include the statements
made by counsel for the appellant and the
State Advocate when the application for the special entry was originally applied
for. A
thoughtful and objective observer, informed that no discussion about the
case in fact took place between the assessors and the State
Advocate, the
investigating officer and the deceased’s son and that their presence in
the office used by the assessors was
due simply to the need for certain
telephone calls to be made to State witnesses, without anything being said about
the case itself,
would, I am satisfied, not lose confidence in the legal system
and in particular its functioning in the case in which the appellant
was being
prosecuted.
[13] This approach to the matter renders it unnecessary
for me to decide whether, if the statements to which I have referred had not
been
made in open court when the special entry was originally applied for, it
was open to the appellant to persist in his application
for the special entry
after he had been convicted when he had through his representative specifically
declined to ask for the recusal
of the assessors after he became aware of the
facts giving rise thereto. In this respect the facts of this case differ from
all the
cases where irregularities which formed the subject of special entries
were complained of on appeal and where the irregularities
in question were only
discovered after conviction. It is also unnecessary to consider whether on the
facts of this case the special
entry was correctly made or what the position
would be if, although the public were not informed of the true facts underlying
the
alleged irregularity, the appellant is to be regarded as having waived his
right to rely thereon.
[14] In all the circumstances I am satisfied
that the appeal based on the alleged irregularity set forth in the special entry
must fail.
APPEAL ON MERITS
[15] I turn now to deal
with the question as to whether the trial court correctly convicted the
appellant on the evidence before it.
[16] The murder which the
appellant was alleged to have committed was committed at about 1 pm on 21
October 1997 at a spot in Island View
Road in the suburb of Bluff, Durban.
Someone, the State says it was the appellant, threw petrol over the deceased,
Mrs Argentina
Pento Loutsaris, a 39 year old widow, and set her alight, causing
her severe burn injuries from which she died shortly afterwards
in St
Augustine’s Hospital.
[17] The State sought to prove its
allegation that it was the appellant who caused the deceased’s death by
placing a number of items
of circumstantial evidence before the trial court.
These may be summarised as follows:
(1) the person who threw the petrol over the deceased and set her
alight was a stockily built, medium height Asian man (a description which covers the appellant), who had arrived at the scene of the attack in a white delivery vehicle of 1200 or 1400 cc engine size;
(2) the appellant had been involved in a romantic relationship with the
deceased which had either ended or become troubled to such an extent that its continuance was in question;
(3) the appellant had been keeping the block of flats where the
deceased lived under observation since July 1997;
(4) he had used a white Nissan 1400cc delivery vehicle since that
vigilance began;
(5) the appellant had access to a white Nissan 1400 cc delivery vehicle
until 26 October 1997, five days after the murder, when the police took possession of the vehicle after obtaining its keys from the person who was in possession of the vehicle, one Nishal Ramesh, who lived in a different part of the same building as the appellant at the relevant time;
(6) a fingerprint made by the appellant’s left little finger and a part of a
palm print made by his left palm were found on the right rear passenger window of the vehicle, a red Opel Monza motorcar, which was being driven by the deceased in Island View Road shortly before she was attacked;
(7) the vehicle on which the fingerprint and palm print were found
belonged to a
friend of the deceased, one Shamugan Govender, who had lent it to her at 4 am on
the morning of 21 October 1997.
[18] The appellant’s defence was
an alibi. He testified that he was in Umtata at the University of Transkei on
the whole of 21 and
part of 22 October 1997, trying to arrange for his daughter
to be admitted as a medical student at the University from the beginning
of
1998.
[19] The first item of circumstantial evidence relied on by the
State was based on the evidence of a security guard, Trevor Steyn, who
said that
about ten minutes before the deceased was first seen on fire at the spot from
where she was taken to the hospital he was
at the gate of the fuel storage farm
which borders on Island View road. He looked down the road in a southerly
direction and saw
two vehicles, as he put it, parking next to each other, namely
a red car and a white 1200 to 1400 litre delivery vehicle. A stocky
Asian male
was standing on the passenger side of the red vehicle and seemed to be talking
to someone seated in the red car. As he
was talking he was making
gestures.
[20] Counsel for the appellant submitted that his evidence
was unreliable because he had said in his evidence that the red car he saw was
a
Monza and that a quarter of an hour later the State witness Dick came to him and
wanted to use his radio in order to call an ambulance
because a woman was
burning in the car, while in his police statement made shortly after the
incident he had merely spoken of a red
car and had said that he did not know why
Dick wanted to use his radio. Counsel also criticised his evidence because he
was unable
to say whether the white delivery van he saw had a canopy. He said
that this was because the delivery vehicle was facing him. While
there is
substance in the criticisms in respect of Steyn’s identification of the
red car as a Monza and his statement as to
why Dick wanted to use his radio, I
do not think that they afford a basis for finding that Steyn’s evidence on
the other issues
is unreliable.
[21] I turn now to deal with the
second item of circumstantial evidence on which the State relied, namely that
the appellant was engaged
in a romantic relationship with the deceased which had
either ended or had become troubled to such an extent that its continuance
was
in question.
It was common cause that there had been a romantic relationship
between the appellant and the deceased. What was in dispute was whether
it had
ended or was in danger of ending. The appellant said that the relationship
persisted up to the deceased’s death and
that there was no prospect of its
coming to an end. Indeed, he said, she telephoned him the night before she died
and he went to
her flat, which belonged to him and which he was providing free
of charge to her, and endeavoured to fix the driver’s window
on the red
Monza, which she had at the flat. They also spoke on the telephone on the
morning she died. He also stated that up to
the time of her death he bought
groceries for her every week. On the other hand the State witness Mrs Korkie
testified about an incident
which took place at the flat in 1997 when the
appellant swore at the deceased and accused her of not wanting to pay his
accounts,
whereupon he hit her a few times in the face. A fight thereafter
developed in the kitchen between the appellant, who grabbed a knife
which was on
the kitchen sink, and the deceased’s brother, who had a screw driver. The
witness said that she then telephoned
the police. In the course of his evidence
the appellant admitted an incident that took place on 3 September 1997 when the
deceased
hit him in the back with her bag and his shirt got torn. He had made a
statement to the police about this in response to a charge
she had laid against
him. It was also established that in September 1997 the senior public
prosecutor, Durban, wrote to the appellant
and told him that the deceased had
lodged a complaint on oath against him in which she had alleged that he had
conducted himself
violently against her, had threatened injury to her and had
behaved in a manner likely to provoke a breach of the peace. He was warned
that
if there was a further complaint by her against him proceedings would be
instituted against him for an order binding him over
to keep the peace. The
appellant denied receiving this letter but the fact that it was sent was not
denied. As far as the appellant’s
assertion that he bought groceries for
the deceased up to the time of her death is concerned, he said that the
witnesses who said
that groceries were found in the Monza motor car after the
incident were fabricating this evidence because he paid for her groceries
and at
the time of her death there was no need for her to buy groceries as she had
sufficient groceries and besides she had no money
to pay for
them.
[22] The third item of circumstantial evidence related to the
appellant’s keeping surveillance over the flat occupied by the deceased
in
1997. The appellant did not deny that he had been keeping the block of flats
where the deceased lived under observation but he
alleged that this happened in
1996 and that he was observing the deceased’s brother, who was staying in
the flat in 1996 but
not in 1997, and not the deceased herself. His reason for
doing so was the fact that the deceased’s brother was taking articles
from
the flat, which he, the appellant, had to replace and he wanted to catch him.
The witness Kroutz, on whose premises the appellant
parked his vehicle while
doing the surveillance, was adamant that one of the occasions when the appellant
parked his vehicle at his
premises took place in June 1997. He stated that he
remembered this because the appellant came to his home on his wife’s
birthday
in June 1997. He remembered the year because that year he and his wife
had gone out to supper to celebrate her birthday. He also
stated that the
practice was a frequent occurrence between June and September that year. Counsel
for the appellant criticised the
evidence of Mr Kroutz on the ground, so it was
submitted, that he was not very sure about the year in which the surveillance
took
place. I do not think that this criticism is well founded. It is clear, in
my view, that the incidents about which he testified took
place in
1997.
[23] The fourth item of circumstantial evidence related to the
use by the appellant of a white Nissan 1400cc delivery vehicle since the
surveillance began. The appellant denied this. He said that he used a white
Passat motor car and never used a 1400cc delivery vehicle.
Both Mrs Korkie and
Mr Kroutz said that they saw him in a white 1400cc Nissan delivery vehicle.
Counsel for the appellant criticised
Mrs Korkie’s testimony in this regard
pointing to her evidence that she only said that the appellant was driving a
Nissan vehicle
because her husband told her that the vehicle concerned was a
Nissan. This submission, however, overlooks the fact that she also
said that the
vehicle she saw being used by the appellant was a white 1400cc delivery vehicle
with the word Champ written on it.
According to the evidence of the appellant
the deceased’s brother had a white 1400cc Nissan delivery vehicle which
was a ‘Champ’.
Counsel for the appellant was unable to suggest any
reason for Mr Kroutz to have been mistaken as to the type of vehicle used by
the
appellant, who was, it will be recalled, frequently at his premises from June to
September 1997 using the vehicle in question.
[24] Another witness who
linked the appellant with a white 1400cc Nissan delivery vehicle, similar to the
vehicle of which the police took
possession on 26 October 1997, was Victor
Loutsaris, the deceased’s son. His evidence was strongly criticised by
counsel for
the appellant on the grounds, inter alia, that he had told
the court that he did not know of a romantic relationship between his mother and
the appellant (a statement which
he must have known was false) and he told the
court that he did not like the appellant. Counsel for the State conceded that
his evidence
was unsatisfactory in certain respects but submitted that it should
be accepted in so far as it was corroborated. As I have reached
the conclusion
that it would be more appropriate on the facts of this case only to have regard
to his evidence where it corroborates
that of other witnesses and as the
evidence of the other witnesses on the points on which he corroborates them does
really not stand
in need of corroboration. I do not propose referring to his
evidence on the points in question. In my view, it does not take the
case any
further.
[24] The State’s contention that it proved that the
appellant had access to a white Nissan 1400cc delivery vehicle of which the
police
took possession on 26 October 1997 was based essentially on two pieces of
evidence: (a) the fact that a court order in relation to
the appellant’s
sequestration was found under the seat of the vehicle, and (b) the facts that
before the police took possession
of the vehicle, at Verulam, it was under the
control of Nishal Ramesh who lived in a different part of the house in which the
appellant
stayed in Clare Estate and they recovered the keys of the vehicle from
Ramesh at his house before proceeding to Verulam. The court
found that the
vehicle ‘would still have been accessible to someone like the accused
living in that house prior to its removal
[to Verulam] and if the keys were
still kept in that house even after its removal, whenever that was.’
Counsel for the appellant
contended that the State had not proved that the
appellant had access to that particular vehicle. He pointed out that Mr Ramesh,
who was a State witness, said that the appellant did not use the vehicle. As far
as the court order was concerned, Mr Ramesh’s
partner, Vishnu Purmasher,
said that he had used the vehicle to move some of his papers from premises from
which he had been evicted
and the order had been among his papers, he having
been the original petitioning creditor for the sequestration. It is true that
he
had been displaced in the sequestration application by an intervening creditor
and it is, as the trial court put is, ‘a
strange coincidence that of all
his personal papers only this one should have fallen loose from the rest and
still be found in the
vehicle’, nevertheless, as the trial court also
pointed out, this is not impossible. Counsel for the appellant submitted,
correctly,
that the trial court had erred in saying that the keys to the vehicle
were still kept in the house of which the appellant occupied
a part, after the
vehicle was removed to Verulam. The evidence indicated that the keys were sent
for from the house after the police
arrived: they were not kept in the house. In
my view, counsel for the appellant was correct in submitting that the State did
not
prove that the appellant had access to the vehicle of which the police took
possession on 26 October.
[25] The next two items of circumstantial
evidence must be taken together. It was common cause that the appellant’s
fingerprint and
palm print were found on the rear right passenger window of the
red Monza. What was challenged was whether those prints were put
on the window
after 4 am on 21 October 1997. For all practical purposes it can be accepted
that if they were put on the window after
4 am on 21 October they must have come
there at the time of the fatal assault on the deceased. The appellant said that
the deceased
telephoned him twice on the evening of 20 October 1997 and that he
went to her flat that evening. While he was there she requested
him to fix the
driver’s window of Mr Govender’s vehicle, which was already in her
possession. He was unable to fix the
window, which was malfunctioning, but he
must have touched the rear right window and left his prints on it. He said that
at 11 pm
that evening he left for the University of Transkei at Umtata where he
was for the whole of 21 and part of 22 October. He went there
to endeavour to
obtain admission for his daughter into the medical faculty for the next academic
year. While he was there, on both
days, he spoke to Miss Mametsi Sethuntsa, the
receptionist at the Science Faculty of the university and he also telephoned the
deceased
from a public telephone and gave her the number of the Science Faculty
receptionist where she rang him back. In support of this alibi
he called Miss
Sethuntsa, who testified that he had spoken to her at the Science Faculty on 20
and 21 October, that he had gone to
make a telephone call from a public
telephone and that a telephone call had thereafter come for him on her telephone
and that the
person at the other end was a female. She stated that she was able
to fix the date of the first day on which she saw the appellant
as 20 October
because it was that day on which she resumed work after being away on holiday.
The appellant also called a witness,
Mr Vicky Panday, who works in the customer
services department of Telkom. He produced a document, exhibit S4, which
purported to
be a printout of all calls made by the deceased from the telephone
in her flat on 20 and 21 October 1997. According to this printout
two telephone
calls were made from the deceased’s telephone to the number used by the
appellant on the evening of 20 October
1997 and another call was made at 10.59
am on 21 October to the Science Faculty at the University of
Transkei.
[26] As the State was taken by surprise by this evidence it
was given leave to call evidence in rebuttal. Mrs Patience Kahla, the custodian
of records of leave taken by employees of the University of Transkei, testified
that Miss Sethuntsa applied for two days leave on
25 and 26 September 1997 and
one day’s leave on 10 October. Witnesses were also called from Telkom who
produced a further printout
of the deceased’s telephone calls for the
period in question, exhibit T, which was described as Telkom’s official
account
statement. This printout did not contain the two telephone calls to the
appellant’s telephone number which exhibit S4 showed
as having been made
on the evening of 20 October nor the telephone call to the University of
Transkei reflected as having been made
on 21 October. Mr Panday was then asked
to reproduce exhibit S4 on his computer but was unable to do so. Subsequently
the court itself
called a further witness from Telkom, VA Munnik, the senior
manager for billing operations. The judgment of the trial court contains
a full
summary of the evidence given by the witnesses who testified regarding exhibits
S4 and T. It is unnecessary for me to repeat
it. It suffices for me to say that
I am satisfied that the trial court’s conclusion that exhibit S4 was not a
true extract
of the itemised billing records of the deceased’s telephone
number for 20 and 21 October 1997 and that it is overwhelmingly
clear that Mr
Panday had falsified it by adding information from other sources is
correct.
[27] My reasons for so holding are the following:
(1) the tariff on exhibit S4 is incorrect : it shows a tariff charge of .44
of rand per unit, the present rate of charge at the time of the trial, not the charge in 1997, which was .271 of a rand per unit, with charges being made in units with a minimum charge of three minutes per unit;
(2) calls to cellular telephones are billed on exhibit S4 at the same cost
as Telkom cells, which cannot be done on a Telkom account recording system;
(3) the alleged call to the Transkei should have been reflected as a
national call instead of being linked to the same code as a local call;
(4) exhibit S4 does not differentiate between local, national and
international calls, (as does exhibit T), which is what should happen on a genuine Telkom account printout;
(5) Mr Panday was unable to reproduce exhibit S4 when asked to do
so after the other Telkom officials had testified; and
(6) exhibit S4 purports to obtain 1997 data calls from Telkom’s
flexibill
billing system, which only came into operation in September 1999 and was
backloaded with data from the old customer billing
system from the end of
February 1999.
[28] Miss Sethuntsa tried, when she was recalled, to
explain away Mrs Kahle’s evidence by saying that leave she had taken for
25
and 26 September 1997 and 10 October 1997 had been augmented by two periods
of five days and one period of one day non-accumulative
leave which she had been
granted in January and February 1997 but which she had not taken at the time and
that she had taken an additional
two or three days of previously worked
overtime, which her superior had allowed her, which accounted for all the days
between 29
September and 17 October 1997 when she was on leave, and which
explained why she went back on 20 October.
[29] The trial court
correctly in my view rejected this explanation. It said:
‘First, if
Miss Sethuntsa had taken the eleven days leave from 29th of
September, there would have been no need to apply for the 10th of
October to be a day’s leave, since that would have fallen comfortably
within the eleven days, excluding weekends of course,
from the 29th
of September; and, secondly, on that basis, she would have had three and a half
weeks leave and not the two weeks she originally
stated she had taken, and in
her evidence-in-chief she said she had returned from the Kruger National Park
visit on the second Tuesday
of her leave and then taken another three days off,
which would have included the 10th of October, to see her family in
the Transkei before returning to work. On that basis she would have returned to
work on the 13th of October and not a week later on the
20th.’
[30] The State sought to refute the
appellant’s explanation that his prints must have come onto the right rear
window of the Mazda
when he was allegedly trying to fix the driver’s
window on the evening of 20 October by calling Mr Govender, who said that
the
deceased accompanied him to a restaurant known as Trains Pub and Grill at 5.30pm
on 20 October and stayed with him at the restaurant
till it closed at 1 am on 21
October. According to Mr Govender the deceased remained in his company until
about 4 am when they returned
to his home in Westville, after which he allowed
her to take the red Monza to drive herself home. He only gave her the keys to
the
Monza at 4 am and he had them in his possession until then. Counsel for the
appellant suggested that Mr Govender had fallen asleep
during the evening (he
had been drinking alcohol) and was accordingly not aware that the deceased had
taken his motor car and gone
home for about two hours from 9 to 11 pm. This he
denied. The most important aspect of his evidence in my opinion is his statement
that he only gave the deceased the keys of the Monza at 4 am. If that is so, she
could not have driven it before that. Morgan Chetty,
the owner of the
restaurant, testified that he remembered the event of the evening in question,
that he and the deceased had spoken
the whole evening about her joining his
business and that she had not absented herself for two hours during the evening.
Counsel
for the appellant submitted that his evidence was unreliable. He had
only been asked about the events of the evening in question
in June 2000, on the
day he testified. He contended that nothing extraordinary happened that evening
to give Mr Chetty a reason to
recall the detail he testified about. This
submission, in my opinion, overlooks the important fact that the deceased was
murdered
the very next day, a factor which would have helped him to remember the
events of the previous evening.
[31] In my opinion the State clearly
established beyond reasonable doubt the factors listed above (except that the
appellant had access
to the vehicle seized by the police on 26 October). I am
also satisfied that the trial court correctly found that Miss Sethuntsa
returned
to work on 13 October and not 20 October as she said, and that exhibit S4 was
not a genuine document and that there was
no trace in Telkom’s records of
the alleged telephone calls made by the deceased to the appellant on 20 October
1997 and to
Miss Sethuntsa’s number at the University of Transkei on 21
October 1997.
[32] I am satisfied further that the facts proved lead
to only one reasonable inference, viz that it was the appellant who threw
petrol over the deceased on 21 October 1997, set her alight and thus caused her
death. It follows
that his appeal must fail.
[33] The following order
is made:
The appeal is dismissed.
.................
IG FARLAM
JUDGE OF APPEAL
CONCURRING
MTHIYANE JA
PONNAN AJA
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