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IN THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE

EASTERN CAPE, GRAHAMSTOWN

C.A. & R: 149/09

Date Heard: 23 June 2010

Date Delivered: 1 July 2010

MZIKAYUSE NDEMA Appellant

and

THE STATE Respondent

JUDGMENT

EKSTEEN, J:

[1] The appellant was charged and convicted of negligent driving. He approaches this Court in an appeal against his conviction.

[2] The charge arose from a motor vehicle collision which occurred in a robot controlled intersection in Uitenhage Road in Port Elizabeth. The appellant, a member of the South African Police Service, was the driver of a police vehicle travelling in a northerly direction in Uitenhage Road. The complainant, one Houtman, was travelling in a westerly direction up the off-ramp leading from the N2 National Road to the junction with Uitenhage Road. Houtman proceeded into the intersection and executed a right hand turn into Uitenhage Road. The appellant collided with the left hand side of the complainant’s vehicle whilst it was in the intersection.

[3] The State alleged that the appellant proceeded into the intersection in contravention of the red traffic light. The appellant, on the other hand, contends that it was Houtman who disobeyed the red traffic light and that the light was green for the traffic travelling in the northerly direction in Uitenhage Road.

[4] At the trial the magistrate held that the appellant had entered the intersection in contravention of the red traffic light, hence the conviction.

[5] Both Houtman and the appellant testified in support of their conflicting versions. One Els, who was the driver of a third vehicle travelling in the same direction as Houtman testified for the State. He corroborates the version of Houtman. On behalf of the appellant one Mabangula, who was a passenger in the vehicle of the appellant, testified. She corroborates the version of the appellant. Mabangula is also a member of the South African Police Services and was assigned to duty on the day in question in the same vehicle as the appellant.

[6] When the matter was called before this Court our attention was drawn to the fact that the record is incomplete in that portion of the evidence of Mabangula is omitted. The record sets out the evidence in chief of the witness Mabangula. It then concludes: “COURT Mrs Vermaak cross-examination.” Nothing of the prosecutor’s cross-examination of Mabangula was recorded.

[7] We are advised, and it appears to be common cause, that the magistrate has passed away since the trial and he has left no notes which could assist in the reconstruction of the record. Neither the prosecutor nor the defence attorney are able to assist and this Court is asked to accept that no reconstruction is possible.

[8] The question therefore arises how this Court should deal with this difficultly. In S v Collier 1976 (2) SA 378 (C) Burger J held as follows at 379C-D:

“It would however create an impossible situation if an appeal by an accused were to be upheld in all cases where the record is not perfect or complete, because a possibility exists that evidence favourable to the accused does not appear on the record. In my opinion the Court of appeal should deal with the case on the best available record unless it appears that evidence placed before the lower court does not appear on the record, that such evidence is material to the adjudication of the appeal and that the issue as to the missing evidence cannot be settled by way of admissions or in some other manner. Where material evidence is not on record and the defect cannot be cured, the appeal should succeed.”

(See also S v Phukungwana 1981 (4) SA 209 (BSC).)

[9] The correct approach to evidence in a criminal trial where the onus rests upon the State to establish the guilt of the accused person beyond reasonable doubt was considered by the Supreme Court of Appeal in S v Chabalala 2003 (1) SACR 134 at 139i-140a where Heher JA stated:

“The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused's guilt.”

[10] In the present case the trial Court was faced with two mutually destructive versions. If the version of the appellant is found to be reasonably possibly true then the balance of evidence cannot be said to weigh so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. On the contrary, if in this matter it is held that the version of the appellant is reasonably possibly true then he is clearly entitled to succeed in his appeal. It is against this background that consideration must be given to the question whether the evidence which does not appear on record is material.

[11] I have stated above that Mabangula’s evidence corroborates the evidence of the appellant that the appellant entered the intersection at a time when the traffic light favoured him. If she were thoroughly tested under cross-examination and if her replies remain consistent and reconcilable with the evidence of the appellant then, in my view, that would be very material to determining whether the appellant’s version is reasonably possibly true.

[12] In a matter such as the present where the Court is faced with two mutually destructive versions and where there is no objective evidential material which points firmly in favour of one or other version I do not consider that the Court can properly assess whether the appellant’s version is reasonably possibly true without the benefit of the transcript of the cross-examination of an important eye witness whose evidence clearly favours the appellant.

[13] If the evidence of Mabangula is accepted without challenge then I consider that the version of the appellant is reasonably possibly true.

[14] Ms Hendricks, on behalf of the State, submits that we should consider that the magistrate found the appellant and Mabangula to be poor witnesses. I do not think that the record bears this out. In respect of the appellant the magistrate found:

“The accused as a witness sometimes is said to have been horrible and hopeless witness (indistinct) not the impression here.”

[15] Again, in considering this finding, the Court is handicapped by the unrecorded portion of the sentence. It appears to me, however, to the extent that I am able to make sense of this recordal, that the magistrate was not of the view that the appellant had made the impression of a “horrible and hopeless witness”.

[16] In respect of Mabangula the magistrate commented as follows:

“The witness called by the defence, the police female colleague of the accused, I wish to steal Mr Nkanunu’s words about Mr Houtman and say I got the impression that she was edge, shifty. Maybe let me spare the (indistinct) terms and not (indistinct). She didn’t make that impression as such but she can also not be said to have been a hopeless witness.”

[17] It is by no means clear from the record what impression the magistrate had of the witness, save that he thought that she was “edge, shifty”. No reasons for this view are set out in the judgment.

[18] Whilst the importance of a credibility finding based on demeanour should not be under estimated it should be borne in mind that demeanour is at the best of times “a tricky horse to ride”. Thus it has been held that an assessment of demeanour without regard for the wider probabilities constitutes a misdirection. See for example Body Corporate of Dumbarton Oaks v Faiger [1998] ZASCA 101; 1999 (1) SA 975 (SCA) at 979I. Nugent J, in Medscheme Holdings (Pty) Ltd v Bhamjee, [2005] 4 All SA 16 (SCA) at 21A-B stated as follows:

“Without a careful evaluation of the evidence that was given (as opposed to the matter in which it was delivered) against the underlying probabilities, which was absent in this case, little weight can be attached to the credibility findings of the Court a quo.”

[19] In the present matter, in respect of the evaluation of the evidence the magistrate found as follows:

“So getting back to the crucial question and giving the answer of this Court to that crucial question: when one listens and takes what has been testified in this case, bearing in mind that Court finds nothing wrong, in fact I find that Mr J (indistinct) has told the truth, he has no motive, he is a neutral witness, his truth (indistinct) happens to be marrying the version of Mr Houtman, I find that the accident occurred in the way that these two State witnesses have explained.”

[20] It appears to me that the magistrate rejected the evidence of the appellant, not because it was not reasonably possibly true, but because he believed Els. That is not the correct approach. What is required is to evaluate the evidence of the witness as set out above in order to find whether the version of the appellant is reasonably possibly true. In this case, if it is so possible the appellant would be entitled to his acquittal. The magistrate appears to be have been strongly influenced by the neutrality of Els. Mr Nkanunu, on behalf of the appellant, has correctly referred to the conflicting evidence of Els and Houtman in respect of their prior acquaintance with one another. Houtman testified that he had met Els prior to the collision whilst Els denies this. The fact that they had previously met does not, of course, mean that Els was partisan. By parity of reasoning, however, it cannot be said that Mabangula was not impartial merely because she was also employed by the South African Police Services. The acceptability of her evidence can only be evaluated on a consideration of her replies under cross-examination. In all the circumstances I find little assistance in the findings of the magistrate in seeking to overcome the difficulty presented by the incomplete record. I am of the view that the record is defective in a material respect and, because this defect cannot be cured by the reconstruction of the record, the appeal must succeed.

In the result, the appeal is upheld and the conviction and sentence of the appellant are set aside.

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J W EKSTEEN

JUDGE OF THE HIGH COURT

GROGAN AJ:

I agree.

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J G GROGAN

ACTING JUDGE OF THE HIGH COURT

Appearances:

For the Plaintiff: Mr Nkanunu instructed by Silas Nkanunu & Van Loggerenberg Attorneys

For the Respondent: Adv Hendricks instructed by Director of Public Prosecutions

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