IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE NUMBER:	A244/2010
DATE:	10 SEPTEMBER 2010
In the matter between:

and

JUDGMENT

I believe that it is important for the purposes of determining this appeal that a short description of the trial proceedings be given. At the commencement of the trial both the appellant and his co-accused, Royston Price ("Price"), were represented by the same legal representative, namely Mr Catsicadellis. Both the appellant and Price pleaded not guilty to the single charge against them. On behalf of his clients, Mr Catsicadellis gave a short explanation of plea to the effect that both the appellant and Price denied that they had any involvement in the murder.

After Sergeant Delport had completed his evidence the trial was postponed. When the trial recommenced Mr Catsicadellis advised the Court that problems had arisen which rendered it necessary for him to apply to withdraw as the legal representative of both the appellant and Price. Mr Catsicadellis explained that neither the appellant nor Price had consulted with him properly since the beginning of the case. He had asked them to attend at his offices, but they had not done so. New information had since come in to his possession, which rendered it impossible for him to continue to act for the accused. Mr Catsicadellis' application was granted and for the remainder of the trial the appellant and Price were separately represented.

The State then called a fourth policeman, Sergeant Isaacs, who confirmed the evidence given by Inspector Rossouw and Sergeant Delport in most respects. A ballistic report was thereafter handed in as evidence.   According to the report, a spent bullet found at the scene of the murder, as well as the spent bullet removed from the victim's head, had been fired from the Rossi revolver which, according to the evidence of the police, had been found on the person of Price. The contents of the ballistic report were formally admitted by the defence.

Under cross-examination by the appellant's legal representative, Benting was referred to a statement that he had made to the police. His evidence had been that he had made the statement on the day following the incident. (This is although the Commissioner of Oath's attestation, on the statement bears the date 31 May 2000, over two months after the incident occurred).   In the statement Benting had declared that two shots were fired. He also stated that he did not know if the shots were fired by Price or the appellant, but only the appellant had a gun. Benting confirmed once again that it was the appellant who had fired at them. The State then closed its case.

When they got to Lugmag Avenue, the police arrived and instructed them to stand still. Price threw the revolver into a nearby strip  of veld,  but the  police saw him doing this, arrested him and recovered the firearm. He denied that, as the police had testified, the weapon was found in his possession. Under cross-examination it was put to Price that the appellant would testify that the two of them had gone to visit the appellant's wife in Acre Road and that on the way back they had been arrested in Lugmag Avenue. It was put to him that the appellant would say that at no stage had they walked down Glider Crescent. Price denied this and said that he had never visited the appellant's wife. The Court also pointed out to Price that his evidence differed from what he had told his legal advisor. Price testified that during the period that he and the appellant had had the same legal advisor, the appellant had threatened him and said that he should not tell the truth.

Lawrence Williams was then called by the appellant to give evidence on his behalf. The taped record of Mr Williams' evidence has gone missing, but the magistrate was able to reconstruct Mr Williams' evidence from his notes. Mr Williams testified that he knew the appellant and was also aware of the shooting incident in Glider Crescent on 19 March 2000. He had heard the shots and he had run to the scene of the shooting where he was arrested. When he was at the police station the appellant and Price were brought in. He testified that he had seen the appellant and Price in Glider Crescent before the incident. They were walking in the direction of Acre Road and went past him. He asked the appellant where they were going and the appellant told him that they were going to his girlfriend's house. Under cross-examination he testified that he heard the shots approximately five minutes after he had seen the appellant and Price. His house was in Glider Crescent between the scene of the shooting and Acre Road. The appellant then closed his case.

The magistrate accordingly found that the risks involved in accept the evidence of Price were reduced, because his evidence had been corroborated by that of Benting. He also took into account the unlikelihood of there having been a conspiracy between Price and Benting and the material contradictions in the version that the appellant had apparently given to Mr Catsicadellis and which had been put to the witnesses and his evidence. The magistrate recognised, however, that the fact that Price made common cause with the appellant  during  the first  part of his  evidence,  raised  a question as to his credibility. He found, however, that Price had given a version as to how the weapon had come into his possession which was most convincing and his evidence was confirmed in material respects by that of Benting.

(a) The Court erred in using, as its point of departure, the evidence of Price, the co-accused. The magistrate should instead have focused on the evidence of Benting, a single witness.
(b) Benting's evidence was unsatisfactory in a number of respects:

(b) The magistrate found Price's explanation of how the firearm came to be in his possession convincing, whereas there must be doubt that Price's evidence in this regard was untruthful.

With regard to the evidence of Price, it was submitted that there were a number of factors that cast doubt on the truth of his evidence:
(a) His evidence differed from the instructions that he had obviously given to Mr Catsicadellis, his first legal representative.
(b) He had every reason to lie and to implicate the appellant because he had to find a way of explaining why the revolver had been in his possession.
(c) His evidence that he had thrown the revolver away before the police arrived was contradicted by the evidence of Rossouw, Delport and Isaacs, all of whom testified that the firearm was found on his person.

This appeal

His evidence that he threw the revolver away is also contrary to the evidence given by the policemen who arrested the appellant and Price. Price also had a strong possible motive for implicating the appellant, namely to escape conviction himself, and he also had to find a way of explaining why the revolver had been in his possession. In my view, therefore, the magistrate's primary reliance on, and acceptance of, the evidence of Price to convict the appellant, constituted a material misdirection which entitles this Court to consider the evidence afresh and to make its own findings.
As I have indicated above, it seems to me that the proper approach in the present matter is to evaluate Benting's evidence as a single witness in order to determine whether his evidence meets the standard required by law and should be accepted. Looking at the evidence as a whole, the ultimate question is whether the State discharged its onus of proving beyond reasonable doubt that the appellant fired the fatal shot. Whilst section 208 of the Criminal Procedure Act allows for the conviction of an accused on the evidence of a single competent witness, it is well established that such evidence should be treated with the utmost care.

In my view the fact that Benting was a gang member and that the shooting may have been related to a gang war, is not a factor which casts doubt on Benting's credibility. Under cross-examination he testified that he was no longer a gang member. The only reason put to Benting as to why he might implicate the appellant in the shooting, was that they both used to be gang members and that Benting still had something against the appellant. What that "something" might have been was not put to Benting, who denied that he had any reason to implicate the appellant.

Price's legal representative put to Benting that he had made his statement on 31 March 2000 (I assume that he must have misread the date of the Commissioner of Oath's attestation which was 31 May 2000). Benting testified that he could not remember the precise date upon which he made the statement. One has to ask why he should lie in this relatively unimportant regard. Furthermore, having regard to the fact that more than six years elapsed between the incident and the date that he gave his evidence, it would be unsurprising if Benting had an unclear recollection of precisely when he made the statement to the police.

The reasoning of the magistrate which led him to conclude that it was highly improbable that Benting and Price could have conspired to implicate the appellant in the shooting therefore, has validity, whether or not Benting's statement was made on the day following the incident or on 31 May 2000. There is, however, less reason to doubt Price's evidence that both he and the appellant were present together at the scene of the shooting. On the appellant's own evidence, they were together not long before the shooting and then "coincidentally" very shortly thereafter. Benting was never in any doubt that he and the victim encountered two men, namely the appellant and Price. Furthermore, the evidence of the police was that they immediately started searching the neighbourhood for two alleged perpetrators as opposed to a single person.

The question which arises is whether, bearing in mind the dangers of accepting an accomplice's evidence and Price's possible motive to exonerate himself, Price's evidence should be accepted as providing corroboration for Benting's evidence that the shooter was the appellant. The only other possible inferences are that, although the appellant was present, Price fired the fatal shot, or the two men involved in the incident were Price and an unknown person. Neither of these scenarios accords with Benting's clear evidence as to the appellant's presence and role in the shooting, whilst the second scenario has Price falsely substituting the appellant for the true gunman in the shooting. I regard these scenarios as far fetched.

In my view, notwithstanding the dangers inherent in accepting the evidence of an accomplice and the not insubstantial criticism of aspects of Price's evidence, in the light of the factors which I have mentioned I consider that, at the least, Price's evidence as to the identity of the shooter can be accepted as providing corroboration for Benting's evidence on this issue. Regarding Benting's evidence on its own terms, I do not find anything therein which suggests that he was being untruthful or that his evidence should not be accepted. I have dealt with the criticisms earlier in this judgment. Furthermore, his evidence reads well and he stood up well to cross-examination. In my view his evidence meets the standard for the acceptance of the evidence of a single witness, namely that it is satisfactory in all material respects.

Catsicadellis, put to the State witnesses. In short it was put to the State witnesses that his evidence would be that he and Price were walking together down Lugmag Road when a group of people ran by. A police van then stopped alongside them and they were searched. The police persistently asked the appellant and Price whether they knew where the men who had run past, were. No firearm was found on either of their persons, but the police found a firearm when searching a nearby strip of veld with their torches. He and Price were then handcuffed and put into the police van, while the police went off in search of the group of men. The appellant was struck in the mouth with the butt of a pistol.

When one has regard to the probabilities, in my view the case against the appellant is strengthened. Neither the appellant nor any other witness could suggest any plausible reason why Benting might lie, both in his statement to the police and his evidence, and implicate the appellant in the shooting of the victim. I take into account the evidence that gunshot residue tests were carried out on both Price and the appellant but no positive results were found. There was, however, no expert ballistic evidence and thus this fact is of limited, if any, assistance to the appellant.

In the light of Benting's evidence, corroborated as it is by Price's evidence in material respects (most notably the identity of the shooter), and the inherent probabilities, I consider that the evidence of the appellant must be rejected as being not reasonably possibly true. Even if I am wrong in concluding that reliance can be placed on Price's evidence as corroboration for Benting's evidence of the identity of the shooter, I am satisfied that Benting's evidence was such that the appellant could be safely convicted on its strength alone. I am satisfied, therefore, that no reason exists to interfere with the magistrate's finding that the State had proved beyond reasonable doubt that the appellant was guilty of the murder of Shaheed Benting. I would accordingly dismiss the appeal against the conviction.