R v Parker

• Jurisdiction: South Africa
• Judge: Schreiner JA, Steyn JA, Ogilvie Thompson AJA, Price AJA and Van Blerk AJA
• Judgment Date: 24 March 1958
• Citation: 1958 (2) SA 639 (A)
• Hearing Date: 10 March 1958
• Court: Appellate Division

B Schreiner, J.A.:

I have had the advantage of reading the judgment of my Brother PRICE but have reached a different conclusion for the following reasons.

Substantially this was a case in which, with due regard to the onus of proof, one man's evidence had to be weighed against that of the other C and this was a factor which had to be borne in mind throughout (R v Mokoena, 1956 (3) SA 81 (AD) at pp. 85, 86).

In deciding how to approach the consideration of the facts it is necessary to examine carefully the reasoning in the magistrate's judgment and his reasons for judgment (I shall refer to them together as his judgment) in order to see how far weight should be attached to his findings. I agree with PRICE, A.J.A., that the magistrate misdirected D himself in the respects mentioned by my Brother. But in my view the defects in the magistrate's judgment are more deep-seated. At the beginning of his judgment the magistrate said,

'There are two questions which present themselves to the court, namely whether the £50 figuring in this case was part of a promised bribe of £100; as against the question whether that amount was not tendered by E the accused as bail.

In other words,'

my italics,

'could there not have been misunderstanding between Stemmet and the accused?'

It seems probable from this language that the magistrate approached the decision of the case without bearing in mind the possibility that F Stemmet might not be telling the truth. That subsequently in his reasons for judgment he stated unexceptionably that Stemmet and the appellant had 'to be considered man to man' and that 'a policeman is no better than any witness' does not in my view provide a complete corrective to the faulty initial approach. I should point out, what G indeed is obvious, that although I consider that the appeal should be allowed this does not by any means amount to a conclusion that Stemmet was a false and untrustworthy witness.

I pass to two further features of the magistrate's judgment which seem to me to be very important in the decision of this appeal. In the first place there is his treatment of the evidence of Hancke. The magistrate H said that Hancke had said no more about the points of time when the party returned to the Maitland Police Station from Cape Town and when, soon afterwards, he saw Parker, not at the Police Station but at his firm's premises, than that 'it was round about closing time.' That was a misstatement of the evidence. And it was not improved by the addition that, 'as regards Hancke's evidence as

Schreiner JA

to time he might well not have given it.' The magistrate said he was not impressed by Hancke's testimony, but there seems to have been no reason why the witness should not have been treated as independent and reliable. This evidence of Hancke's was important, not only in regard to A whether Stemmet's or the appellant's version was correct as to when their second interview took place, but also in relation to the probabilities, the appellant's version being more probable if his second talk took place before the party left for Cape Town than if it happened afterwards. The magistrate, wrongly, in my view, said that it could make no difference when the interview took place.

B The other part of the magistrate's judgment that requires notice is even more important. Before discussing the impressions made on him by the witnesses he dealt with the probabilities as follows:

'Now the probabilities seem to be in favour of Stemmet's version. Accused comes...