South Africa: Eastern Cape High Court, Grahamstown

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

CASE NO: CA&R 393/13

DATE HEARD:  06 AUGUST 2014

DATE DELIVERED:  12 AUGUST 2014

In the matter between:

XOLANI BOOI                                                                                                       APPELLANT

and

THE STATE                                                                                                        RESPONDENT

JUDGMENT

Msizi AJ: 

[1] On 27 August 2012 the appellant was convicted of one count of attempted murder and was then sentenced to five years in prison. He appeals against his conviction. 

[2] The grounds for the appeal are that the court a quo erred in relying on the evidence of the complainant in that he was not a credible witness; his evidence had inconsistencies and contradictions. His viva voce evidence in court differed in material respect from the statement he had given to the police. The appellant’s counsel contends that this discrepancy relates to material evidence regarding the situation that prevailed on the scene of the incident: the position of the appellant; of the appellant’s co – accused at the scene and what was said on the scene.  

[3] The State opposes the appeal on the following grounds: the Court a quo was correct in finding that the appellant had acted in common purpose with his co – accused who shot the complainant; The Court a quo treated the evidence of the complainant on how he was shot with the necessary caution to be applied to the evidence of a single witness; the authenticity of the complainant’s statement taken by the police was never authenticated and the officer who had taken it was never invited to given evidence in court.

[4] It is settled that a court of appeal will not interfere with a finding of fact and credibility made by the trial court[1]. The reason for this is simply that the trial court sees and hears the witnesses and is steeped in the atmosphere of the trial.   It is in a position to take into account a witness’ appearance, demeanour and personality.  In the absence of factual error or misdirection on the part of the trial court, its finding is presumed to be correct.[2]

[5] As a consequence of the aforementioned, the ambit for the interference by the appeal court on a finding of fact and credibility is restricted to few instances.  It is only allowed in instances where there is a demonstrable and material misdirection by the trial court where the recorded evidence shows that the finding is clearly wrong[3].  Factual errors may be errors where the reasons which the trial judge provides are unsatisfactory or where he/she overlooks facts or improbabilities.  Also, where the finding on fact is not dependent on the personal impression made by a witnesses’ demeanour, but predominantly upon inferences and other facts, and upon probabilities.[4]  The appeal court is also in an equal position to the trial court regarding the facts that are found to be correct by the trial court. 

[6] Cases dealing with the discrepancy between the statement drawn by witnesses and evidence led in court are legion. In the case of S v Mafaladiso en Andere[5] the Supreme Court of Appeal provided guidance on what the correct approach is in such cases.  That approach was aptly summarized by Nepgen J in the case of S v Govender and Others[6]  as follows: The juridical approach to contradictions between two witnesses and contradictions between the versions of the same witness (such as inter alia between her or his viva voce evidence and a previous statement) is in principle (even if not in degree) identical.  Indeed, neither case is aimed to prove which of the versions is correct, but to [establish] that the witness could err, either because of defective recollection or because of dishonesty. The mere fact that it is evident that there are self – contained contradictions must be approached with [circumspection] by a court. Firstly, it must be carefully determined whether there is an actual contradiction and what the precise nature thereof [is].  In this regard the adjudicator of facts must keep in mind that a previous statement is not taken down by means of cross – examination, that there may be language and cultural differences between the witness and that the person taking down the statement which can stand in the way [of the correctness] of precisely what was meant, and that the person giving the statement is seldom, if ever, asked by the police officer to explain [his or her] statement in detail. Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility a witness.  Non – material deviations are not necessarily relevant. Thirdly, the contradictory versions must be considered and evaluated  on a holistic basis.  The circumstances under which the versions were made, the proven reasons for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness, the question whether the witness was given a sufficient opportunity to explain the contradictions - and the quality of explanations - and the connection between the contradictions – and the rest of the witness’ evidence [must], amongst other factors, be taken into consideration and weighed up.  Lastly, there is the final task of the trial Judge, namely to weigh up the previous statement against viva voce evidence, to consider all the evidence and to decide whether it is reliable or not and to decide whether the truth has been told, despite any shortcomings”.

[7] Using the approach described above, it cannot be said that the court a quo committed an error or misdirection when it accepted the evidence of the complainant to justify the conviction of the appellant.  Therefore this ground of appeal should be rejected.

[8] The appellant also contended that the court a quo accepted the evidence of the complainant who is a single witness on what happened on the scene of the incident and rejected that of the appellant and his co – accused. 

[9] The danger of relying exclusively on the sincerity and perceptive powers of a single witness evoked a judicial practice that such evidence should be treated with utmost care.  That practice emanated from the comments made in the case of R v Mokoena[7] where the court addressing itself to the predecessor of s208 of the Criminal Procedure Act 51 of 1977 (“CPA”).  In that case a warning was sounded that the uncorroborated evidence of a single competent and credible witness is no doubt declared to be sufficient for a conviction in terms of s284 of Act 31 of 1917, but that section should only be relied on where the evidence of the single witness is clear and satisfactory in every material respect. That section ought not to be invoked where, for instance, the witness has an interest or bias to the accused, where s/he has made a previous inconsistent statement, where s/he contradicts herself/himself in the witness box, where s/he has been found guilty of an office involving dishonesty, where s/he has not had proper opportunities for observation, etc.

[10] Subsequent to the Mokoena decision, the courts have explained that the judge in that case did not purport to state a rule of law but rather expressed a salutary guide[8]. In S v Sauls and Others[9] the then Appellate Devision of the Supreme Court sounded a warning that the exercise of caution must not be allowed to displace the exercise of common sense.

[11] In the present case, the appellant has failed to advance any cogent reasons for the rejection of the evidence of the complaint. I am satidfied that the court a quo adopted the approach in the Sauls matter. I am further satisfied that the evidence pointed to the guilt of the appellant. In the circumstances appeal must fail.

[12] I would therefore make the following order:

The appeal is dismissed.

_____________________________

N MSIZI

ACTING JUDGE OF THE HIGH COURT