R v Behrman

• Judge: Bresler J and Williamson J and Hiemstra AJ
• Judgment Date: 14 May 1956
• Citation: 1957 (1) SA 433 (T)
• Court: Transvaal Provincial Division

H Bresler, J.:

The appellant was convicted by the Court of a regional magistrate for a contravention of sec. 2 (b) of Act 4 of 1918 and sentenced to six months' imprisonment with compulsory labour. The charge, including the alternative, reads as follows:

Bresler J

Main Count:

Contravening sec. 2 (b), Act 4 of 1918.

That the said accused is guilty of the offence of c/s 2 (b) of Act 4/1918 in that upon or about the 15th April, 1955, and at or near Johannesburg in the regional division of South Transvaal he did wrongfully, unlawfully and corruptly give or offer a gift or consideration to wit money in the sum of £200 to Capt. R. J. Pretorius, A a member of the South African Railways and Harbours Police Force, as an inducement or reward for doing acts in relation to his principal's affairs or business, to wit, to hand over to him the accused, certain books or documents seized by the Railway Police; to obliterate certain marks on articles so seized and to accept from the accused certain articles for the purpose of being substituted for similar articles so seized in connection with alleged criminal charges of theft or receiving stolen property well knowing it to have been stolen then being investigated by the said Capt. R. J. Pretorius against H. Wazar and three others, the investigation of which allegations being of the B affairs or business of the principal of the said Capt. Pretorius.

Alternatively:

Bribery.

That the said accused is guilty of the crime of bribery in that upon or about the 15th day of April, 1955, and at or near Johannesburg in the regional division of South Transvaal he did wrongfully, unlawfully and corruptly offer to one Capt. R. J. Pretorius, a member of the South African Railways and Harbours Police Force and as such an official of C the State an unauthorised payment or gift, to wit money in the sum of £200, as a fee, gift or reward to influence the said Capt. Pretorius in the performance of his duties as such official by inducing or attempting to induce him to hand over to him the accused, certain books and documents seized by the Railway Police; to obliterate certain marks on certain articles so seized and to accept from the accused certain articles for the purpose of being substituted for similar articles so seized in connection with alleged criminal charges of theft or receiving stolen property well knowing it to have been stolen then being D investigated by the said Capt. Pretorius against W. Wazar and three others, the investigation of which allegations being of the affairs or business of the principal of the said Capt. R. J. Pretorius.

[The learned Judge then dealt with the events leading up to the prosecution and the evidence of certain witnesses. He then dealt with a submission by the appellant that the magistrate had erred in not E permitting cross-examination of Capt. Pretorius on one circumstance of the case. The learned Judge then continued.]

Now

'the disallowance of proper questions sought to be put to a witness by cross-examining counsel is an irregularity which entitles the party represented by the cross-examiner to relief from a Higher Court, unless that Court is satisfied that the irregularity did not prejudice him.' F (Distillers Korporasie SA Bpk. v Kotze, 1956 (1) SA 357 (AD)).

In the present case I do not think that it can be said that the appellant has suffered actual prejudice.

This brings me to the question of the transcripts. In R v Koch, 1952 (3) SA 26 (T), it was held that dictaphone evidence was admissible and that

G 'if the recording could be done so as to be audible to the Court and the parties there is in my opinion no reason why the judicial officer should not himself listen to the recording instead of being told by some other person what he has heard. If that were done there can in my opinion be no doubt that a witness could be permitted to testify whether any particular person with whom he is acquainted . . ..'

The Court proceeded to say this:

H 'If the record can be heard by one person only at one time it is in my opinion perfectly proper to call as witnesses persons who have listened to the record to say what they have heard.'

Assuming these statements of the law, what happened in the present case? The recording said to have been made at the time of the conversation between appellant and Captain Pretorius was contained on a tape and efforts were made to elicit the contents on this tape by two

Bresler J

Head Constables. One of them Haymans said he could ascertain very little but he said there were two voices one of which he could recognise. At this stage it was conceded that Haymans and Head Constable Fourie listened to the exs. 71, 72 and/or 74 for the purpose of making transcripts of which copies were produced but it was admitted that the A task was very difficult and at times voices were not audible at all and that in playing back the needle could be placed either too far in front or too far towards the back. Parts were indistinct too and certain words wrongly identified. The court found the playing of the tape unintelligible and the aid of two experts was invoked namely Sinclair and Anderson and 'dubbings' or electrotranscribed copies were made in B the form of discs but here some background noises intruded. The witnesses...