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Clarke v S (CA&R 342/2012) [2013] ZAECGHC 88 (5 September 2013)

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NOT REPORTABLE


IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE, GRAHAMSTOWN


C.A. & R.: 342/2012


Date Heard: 21 August 2013


Date Delivered: 5 September 2013


In the matter between:


GERALD CLARKE .............................................................................................Applicant


and


THE STATE ...................................................................................................Respondent



JUDGMENT



EKSTEEN J:


[1] The appellant was convicted in the Magistrate’s Court for Port Elizabeth on one count of attempting to defeat or obstruct the administration of justice. In the charge sheet the State alleged that he unlawfully and with the intent to defeat or obstruct the administration of justice made a false statement to the police. The thrust of the State case as presented, however, is that the appellant had laid a false charge that he had been hijacked.


[2] The unfortunate events which give rise to these allegations occurred on Christmas Eve in 2009. On the afternoon of 24 December the appellant had been to visit a friend, one Willie, who was a mechanic and who did certain work on the appellant’s vehicle. Thereafter the two of them had some beer and later some whisky. The festivities continued well into the evening and they later took Willie’s two sons to the “Golden Fountain”, a club, where a midnight disco was due to be held. Having dropped the boys Willie and the appellant proceeded to visit the appellant’s sister-in-law in Bloemendal where they drank a little more. After leaving the home of his sister-in-law late that night he proceeded first to drop Willie at his home and then stopped off the “Blue Note”, a club, to have a few drinks. Having left the Blue Note he proceeded towards Helenvale and it is en route to Helenvale where the events began to unfold giving rise to the charge.


[3] The appellant contends that he was hijacked. During the early hours of the morning one Constable Filander of the South African Police Services was on patrol in the northern suburbs of Port Elizabeth. On the corner of Reginald Street and Reyneke Street she noted the appellant’s vehicle, stationary. There was a group of people around the vehicle and it appeared to her that they were breaking into the vehicle. She accordingly approached the stationary vehicle to investigate and, upon seeing the police, the persons around the vehicle fled. On inspection she noted that the wiring of the vehicle was loose and there was an identity book and a wallet lying on the floor. She endeavoured to determine the ownership of the vehicle and managed to find out that the vehicle belonged to the appellant. She was unable to locate the appellant’s address and accordingly called Lieutenant-Colonel Malan (at times referred to as Superintendent Malan in evidence and as Lieutenant-Colonel Malan in the judgment) and requested her to determine whether the appellant knew where his motor vehicle was. Malan located the address of the appellant and managed to make contact with his daughter. The appellant’s daughter advised that she had received a telephone call to inform her that her father had been hijacked. She and Malan proceeded to the scene where the vehicle was and she identified her father’s vehicle. She further advised that she had been telephonically advised that her father was at Voysen Road with a friend.


[4] The undisputed evidence of the appellant, his friend Kerneels Felix and one Julia Felix was that the appellant had arrived at the home of Kerneels in Voysen Road in the early hours of the morning. He had a wound to the back of his head and was bleeding, apparently fairly extensively. His jacket was torn and he reported that he had been hijacked. His daughter was alerted that he had been hijacked and his wounds were cleaned.


[5] Shortly after sunrise Malan, Constable Filander and the appellant’s daughter arrived at Voysen Road and met the appellant. Constable Filander enquired from the appellant what had occurred and he advised her that he had given someone a lift from the Fountain Club whom he had dropped in Helenvale. In Chamoyi Street he said that he had given four persons a lift and whilst driving with these four persons in the vehicle he was attacked from behind, struck on the head with an object which felt like a firearm. He managed to escape from the vehicle and fled.


[6] After receiving this report the police and the appellant’s daughter proceeded to where the vehicle had been found. The vehicle had been damaged and the outside rearview mirrors had been stolen off the vehicle. The windows of the vehicle were however intact according to the evidence of both Constable Filander and Malan. The appellant’s daughter was equivocal on this aspect in her evidence.


[7] The evidence further clearly establishes that the appellant intended at that stage to open a charge of hijacking. An entry was made in the occurrence book at the police station that the appellant was inebriated and accordingly no statement was taken from him. The appellant too states that he was inebriated. Malan described him as being unsteady on his feet and that his speech was very blurry.


[8] After departing from the police station the appellant caused his vehicle to be towed from the scene and on 27 December 2009 he returned to the police station to lay his charge of hijacking. One De Coning, a detective in the South African Police Services minuted a statement from him as to the events which occurred. There were a number of discrepancies between the statement and the allegations made to various witnesses on the morning of 25 December. The statement was not taken on oath. After minuting the statement they proceeded to inspect the vehicle. At this stage both the windows on the right hand side of the vehicle and the rear window pane were broken. The appellant described to De Coning that whilst he was driving in Old Stanford Road slowly negotiating an S-bend two persons attacked him and hurled a rock through the rear window which struck him on the back of the head. They then entered the vehicle and attacked him. He managed to escape and ran away. While his attackers were chasing after him they had grabbed his jacket which then tore.


[9] De Coning became suspicious as to the authenticity of the charge, initially because an inspection of the vehicle showed a headrest on the driver’s seat which made it improbable that the appellant would have been struck on the back of his head as described. His enquiries further revealed the version which had been given to Constable Filander, to which I have referred above and the fact that the windows had been intact after the event when Constable Filander and Malan arrived at the scene. De Coning ultimately concluded that the charge was a “false” charge.


[10] The magistrate, in his judgment meticulously analysed all the contradictory versions which the appellant had from time to time given in respect of the time that the event occurred, the street in which it occurred and the manner in which it had occurred. It is true that there is a discrepancy between the time that Kerneels Felix states that the appellant arrived at his home and the time when the appellant alleged that the hijacking occurred. It is further true that the appellant had initially advised Constable Filander that the hijacking had occurred in Chamoyi Street whereas in the statement he contended that it occurred in Old Stanford Road. These discrepancies must however be seen against the background that the appellant was, on any version, strongly under the influence of alcohol. The estimations of time made by drunken people are notoriously unreliable and I think that the discrepancy in the place where the event might have occurred could conceivably be equally explained by the appellant’s inebriation. The magistrate attempted to downplay the extent of the appellant’s inebriation, however, I think that it must be accepted that it is at least reasonably possible that the appellant was so strongly under the influence of liquor that his intoxication could present a possible explanation for these discrepancies. This is borne out by the inscription in the police occurrence book, the decision by police officials not to proceed to take a statement from him by reason of his state of sobriety and by the evidence of Malan.


[11] In any event these features were not decisive of the magistrate’s conclusion. The magistrate considered that he was called upon to determine whether or not a hijacking in fact occurred. He correctly considered that there was a material difference between the version given to Constable Filander as to the manner in which it occurred and the version pronounced to Mr de Coning. The magistrate placed particular emphasis on the question of the broken windows. He concluded, correctly in my view, that it had been established beyond reasonable doubt that when the police officials located the vehicle none of the windows had been broken. This he correctly found rendered the appellant’s version given to De Coning impossible. The magistrate then proceeded to find, in these circumstances, that the appellant’s version as to the manner in which he was hijacked was not reasonably possibly true. For this reason, he held that it was not reasonably possibly true that the appellant was hijacked.


[12] I do not think that it follows from the finding that the appellant’s report in respect of the manner in which the hijacking occurred was not reasonably possible that no hijacking occurred. It is not in dispute that the appellant’s car had been located abandoned in the northern suburbs of Port Elizabeth during the early hours of the morning. He did arrive at the home of Kerneels whilst heavily under the influence of alcohol and with a significant injury to the back of his head which was bleeding. His jacket was indeed torn and he did immediately report that he had been hijacked. I think that all these features are strongly supportive of a possible hijacking and that the magistrate ought to have found on a consideration of all the evidence that it was reasonably possible that the appellant’s charge of hijacking was not a false charge.


[13] In this respect I think that the magistrate has misdirected himself on the facts. The charge, however, was not that he had laid a false charge, but merely that he had made a false statement. As stated earlier herein I think that the magistrate correctly found that the appellant’s statement in respect of the manner in which he was hijacked was not true.


[14] Having made this finding (that the appellant’s version was not reasonably possibly true) the magistrate proceeded to record that it was not necessary for him to make any finding as to the reason for the appellant having been untruthful.


[15] In this respect I think that the magistrate has misdirected himself as to the law. In Hattingh v Rex 1929 NPD 105 at 107 Dove-Wilson JP defined the essence of the offence and said:


“… (I)n my opinion the essence of the crime consists in the wilful attempt to obstruct the administration of justice coupled with an act calculated to further and done in furtherance of that intent; and if these elements are present it does not matter that what was done was done under a mistaken belief that it would have the effect intended. It is sufficient if it is done with intent to defeat or obstruct the course of justice and is calculated to have that effect …”


This definition of the offence given by Dove-Wilson JP was quoted with approval by Hoexter JA in R v Port Shepstone Investments (Pty) Ltd 1950 (4) SA 629 (A) and again by Hoexter JA in S v Mene and Another 1988 (3) SA 641 (A) at 654E. In S v Mene supra Hoexter JA proceeded to state at 664D-E:

“… (T)he substance of an offence must be assessed by looking not merely at the overt act involved in its commission but by reference also to the accompanying intention which the law may prescribe as an essential ingredient of that offence. …”



[16] What clearly emerges from these authorities is that the act which it is alleged constitutes an attempt to defeat or obstruct the administration of justice must be performed with the intention to achieve that objective. If it is not then the offence has not been committed. It is accordingly, in my view, essential for the magistrate to enquire, and to make a finding, as to the motive in making the statement to the police.


[17] It remains to consider whether, on the evidence presented, the State has proved beyond reasonable doubt that the appellant did make a false statement to the police with the intention thereby to attempt to defeat or obstruct the administration of justice. The offence of attempting to defeat or obstruct the administration of justice may be committed in various ways. One way to commit the offence is by making a false statement to the police or laying a false charge. In S v Mene supra the Appellate Division of the Supreme Court, as it then was, conducted a detailed survey of numerous cases of attempting to defeat or obstruct the administration of justice, decided over a very lengthy period, relating to instances where false charges had been laid or false statements had been made. In every case the false statement was directed either at concealing the commission of the offence by diverting the attention of the police to the fabricated facts set out in the false statement or by implicating innocent persons in the commission of an offence or protecting guilty persons. The intention to defeat or obstruct the course of the administration of justice was found in each instance in these considerations.


[18] In this case I have found earlier that it is reasonably possibly true, on a consideration of all the evidence, that the appellant was indeed hijacked. No possible motive for fabricating a false version as to the manner in which it occurred suggests itself on the evidence. It has not been alleged nor proved that the appellant was responsible for breaking the windows in his vehicle subsequent to its recovery nor that he had any involvement therein. It has not been established that he fabricated evidence in order to mislead the police and I do not think that the facts lead necessarily to such a conclusion. In these circumstances I think that the appeal must succeed.


[19] In the result I would make the following order:


1. The appeal succeeds.

2. The conviction and sentence imposed are set aside.




J W EKSTEEN

JUDGE OF THE HIGH COURT


NHLANGULELA J:


I agree, it is so ordered.




Z M NHLANGULELA

JUDGE OF THE HIGH COURT





Appearances:


For Appellant: Adv N P Mtini instructed by the Grahamstown Justice Centre, Grahamstown

For Respondent: Adv D Els instructed by the National Director of Public Prosecutions