R v Baartman and Others

• Jurisdiction: South Africa
• Judge: Schreiner JA, Beyers JA and Malan AJA
• Judgment Date: 30 May 1960
• Citation: 1960 (3) SA 535 (A)
• Hearing Date: 25 May 1960
• Court: Appellate Division

C Schreiner, J.A.:

The appellants were accused Nos. 2, 3 and 5 of five youths who were charged before JENNETT, J., and assessors, sitting in the Port Elizabeth Circuit Local Division, with having murdered Barbara Harding, a fifteen year old European girl, near the Port Elizabeth radio mast in the late afternoon of Saturday, the 29th August, 1959. No. 1 D accused, named Peter Stephens, and No. 4 accused, named Andrew Goliath, were acquitted, but the three appellants were convicted and sentenced to death. They were refused leave to appeal by the trial Judge but leave was thereafter granted under sec. 363 (6) (iii) of Act 56 of 1955.

I shall in what follows call the first appellant (No. 2 accused) Baartman, the second appellant (No. 3 accused) Kock and the third E appellant (No. 5 accused) Honey.

After watching some motor races the deceased, with another girl and two young male companions had on their way home gone in a car to the neighbourhood of the radio mast which is on elevated open ground with low bushes not far away. The car was parked and the deceased and one F youth walked off in one direction, the other two walking away in another. The deceased and her companion did not return to the car. The other two could not find them and the police were notified. The deceased's body was found by a search party shortly after 10 p.m. that night. She had been ravished and stoned to death. Near to her was found G her companion, alive but unconscious. He regained his senses later in hospital. He stated in evidence that while he was walking with the deceased he suddenly lost consciousness and could remember nothing of what happened thereafter. He had a substantial injury to the back of his head and there were various other head injuries. Money had disappeared from one of his pockets.

H The sole issue at the trial was the identity of the accused as the perpetrators of the crime. In the first instance the five accused said that they did not wish to be defended by counsel but after consultation with their parents they changed their minds and counsel acted pro deo for them. Possibly as a result of their original attitude they were permitted by the trial Judge to take part in the conduct of the case to the extent that they, themselves as well as their counsel, were allowed to

Schreiner JA

put questions to witnesses. This procedure was irregular. A defended accused person has the right to make an unsworn statement from the dock (R v Cele, 1959 (1) SA 245 (AD)), and he also had the right to A terminate his counsel's mandate if he is dissatisfied with his conduct of the case. How far it is possible for the accused without ending the mandate to control his counsel's conduct of the case was discussed in R v Matonsi, 1958 (2) SA 450 (AD), and need not now be further explored. But at least it is clear that he cannot take part side by side with his counsel in the examining of witnesses. Such a procedure would B impair the dignity of counsel and might easily have other unsatisfactory consequences. It should not have been countenanced by the learned Judge. The latitude allowed the accused was, however, little used and there is no reason to suppose that they were prejudiced by the course taken.

The approach of the trial Court, as appears from the judgment, was in C the first place to refer to the evidence of the Crown witnesses who deposed to seeing some or all of the accused together on the afternoon in question and to having had conversations with one or more of them then or later. From this evidence the Crown contended that inferences could be drawn that they were probably at the scene of the murder when D it was committed and that they had guilty knowledge concerning it. The Court also dealt with evidence that on the day after the murder Baartman tried to sell a lady's watch of a silvery appearance, and that a silver watch had been worn by the deceased on the day of the murder and had afterwards not been found. Baartman denied that he had been in possession of or had tried to sell any lady's watch. Mainly because the E deceased's mother said that the deceased's watch had a grey strap, while the witness who claimed to have seen the watch that Baartman was trying to sell spoke of a silvery looking chain or strap, which he saw bunched together with the watch in Baartman's hand, the Court found that the Crown had not proved that the watch offered by Baartman was the F deceased's watch or one closely resembling it. The learned Judge referred to the quality of the witnesses and said that the Court had found the demeanour of the Crown witnesses to be satisfactory and that of all the accused to be the reverse. The Crown witnesses seemed to be telling the truth while the accused created an unfavourable impression.

G Having...