R v Bezuidenhout

• Jurisdiction: South Africa
• Judge: Centlivres CJ, Greenberg JA, Schreiner JA, Van Den Heever JA and Hoexter JA
• Judgment Date: 14 May 1954
• Citation: 1954 (3) SA 188 (A)
• Hearing Date: 12 March 1954
• Court: Appellate Division

E Centlivres, C.J.:

I have had the privilege of reading the judgments prepared by my Brethren and wish to state my views shortly for agreeing with the conclusion arrived at by my Brother VAN DEN HEEVER.

F In his oral reasons the magistrate stated that the failure of the appellant to call his servant, Petersen, was one of the factors which led him to find that the spurious gems had been handed over to the Frazers by the appellant on January 21st and that when he handed them over he knew that they were not genuine diamonds. I shall assume in G favour of the appellant that his failure to call Petersen was not a factor which the magistrate was entitled to take into account. In my view if a judicial officer gives several reasons for accepting one version in preference to another, and one of those reasons is wrong, a Court of appeal must consider whether the other reasons, if sound, are sufficient in its view to support the finding of the judicial officer. I H shall therefore consider whether the other factors which the magistrate took into account are in themselves factors which prove the guilt of the appellant beyond reasonable doubt.

The appellant stated under cross-examination that the reason why Petersen was in the car during the journey from Johannesburg to Pretoria on January 21st was because he was always in the car and that the conversation which took place between the appellant and

Centlivres CJ

James and Edwin was partly in Afrikaans, and partly in English. In answer to the Court the appellant gave the following answers to the questions put to him:

'Hierdie jong, Petersen, het hy iets gekry uit die transaksie? - Nee.

Hierdie onwettige transaksie, 'n mens hou dit onder die minste mense moontlik, was dit nie gevaarlik om die jong by te hê nie? - Nee.

Hy is nie by met die onderhandelings, hy is die jong wat by jou gewerk A het vir 18 maande, hoe weet jy dat hy nie 'n spioen is van die polisie nie? - Hy was 18 maande in my diens.

Was dit nie gevaarlik om 'n derde persoon te hê as getuie? Julle ry en gesels daar ook en die jong is by? - Ons het gepraat, maar in Engels, wat die jong nie verstaan nie.

Julle het in Afrikaans gepraat? - Ja.

En in teenwoordigheid van die jong? - Ja.'

B The magistrate in his oral reasons mentioned the following as one of the factors in disbelieving the appellant's story that James and Edwin accompanied him from Johannesburg to Pretoria. The factor he mentioned immediately after commenting on the appellant's failure to call Petersen. The magistrate said:

'Die snaakste punt wat ek sien en ek het die punt aan u gestel, in C hierdie transaksie, hoe minder mense weet, hoe beter, maar hier was 'n kleurling ingebring en voor hom het julle gepraat, hy kon alles hoor, oor die diamant-besigheid. As Petersen daar was en die ander mense ook, julle sal nooit praat voor 'n ander party wat niks te doen het; hy het niks te doen daarmee. Jy ken hom maar 18 maande. Ek voel in hierdie omstandighede, as jy James en Edwin saamgebring het van Johannesburg, sou jy Petersen agter gelaat het in Johannesburg.'

D The above factor was, in my view, a factor which the magistrate properly took into account in disbelieving the appellant's story.

Another factor mentioned by the magistrate in his oral reasons was as follows:

'Nou kom ons taamlik na aan die end, in verband met die geld wat gekry is in die kar. U sê dat daardie £1,350 aan Hall sou betaal word. Die omstandighede is uiteengesit deur u self en is mynsinsiens nie redelik E nie en ek wil ten volle nie daarin gaan nie, maar dit is blykbaar so onmoontlik dat ek dit nie kan glo nie.'

For the reasons given by my Brother VAN DEN HEEVER, who has gone into the circumstances far more fully than the magistrate, I entirely agree with the magistrate in his view on this aspect of the case.

Furthermore the magistrate said in his oral reasons:

F 'Wat ek ook nie kan glo nie is dat daardie £300 kommissie wat betaal was, was vooruit betaal.'

My Brother VAN DEN HEEVER has dealt fully with the improbability of the appellant being paid his full commission, although according to his story £1,000 was still owing on the transaction.

G In his written reasons the magistrate went more fully into the appellant's possession of the sum of £1,655. He said:

'His explanation for its possession was so improbable coupled with his own evidence. If only £1,500 had been paid by the Frazers on the Wednesday, why should Hall receive £1,350 for his very minor part in the deal and why should accused have received his commission of £300 in advance, and why should James pay £150 out of his own pocket when there H was only hope that the Frazers would pay a further £1,000 on receipt of a further six stones weighing about 20 carats.'

Here again I agree with my Brother VAN DEN HEEVER that the appellant's story is incredible.

All these factors to which I have referred (other than the magistrate's inference from appellant's failure to call Petersen) are, together with the many other improbabilities pointed out by my Brother VAN DEN

Greenberg JA

HEEVER, amply sufficient, in my opinion, to discredit the appellant's story. I feel that my credulity will be strained to breaking point were I to regard as reasonably possible the fantastic story told by the appellant as to what occurred on January 21st.

Judgment

A Greenberg, J.A.:

The facts in this case have been set out by my Brother HOEXTER and I have also had the benefit of reading the judgments prepared by the other members of the Court. I agree that the appeal should be allowed, but think I should give my reasons for this view.

The magistrate came to the conclusion that he must reject appellant's B evidence of the presence of Edwin in the car on the 21st January because of the inference he drew from appellant's failure to call Petersen as a witness; this inference was not justified, and there is no doubt that it materially influenced the verdict. This error, if it is to be regarded as an irregularity, might have the result that this Court cannot sustain the conviction unless it is satisfied that but for that C error, a reasonable tribunal, properly directed, would inevitably have convicted the appellant.

I assume in favour of the Crown that the error is not to be regarded as an irregularity, but as making unsatisfactory the magistrate's reasons D for conviction; this would therefore be a case where the appellant is not required to satisfy an appeal Court that the magistrate's decision is wrong, but where such a Court is 'at large' and would only be entitled to sustain the conviction if, on the record, it is satisfied of the appellant's guilt.

I proceed on the following basis:

(a) The magistrate's conclusion as to the veracity of the witnesses is based on facts which appear on the record and not on any advantages enjoyed by a court of first instance, except to the extent indicated in (c), infra. E

(b) His doubts as to the truthfulness of the Frazers are based on the F clandestine manner in which the negotiations on the 19th and 21st January were conducted and I accept that he was right in thinking that they were involved in an unlawful transaction in regard to diamonds.

(c) The demeanour of these two witnesses was not such as to induce him to believe their denial of the unlawful nature of their transaction, but G there is nothing to suggest that, apart from this, he was influenced in any way by the advantages above mentioned, and I do not base this view merely on the circumstance that he makes no relevant reference to this factor. As regards the appellant, for the same reasons, I accept that the magistrate derived no assistance from these advantages. On this H basis, this Court would be entitled, if the facts warrant it, to come to the conclusion on the record that there is no reasonable doubt that the appellant is guilty. If I am wrong in this view, it is an assumption in favour of the Crown.

On this basis, if it were clear beyond reasonable doubt that the appellant's story of the transaction on the 21st January is false, this

Greenberg JA

Court, in the absence of reasons for placing no reliance on the Frazers' story of what happened then, may be justified in accepting that story as true beyond reasonable doubt, as these are the only two versions before the Court. The only reason that suggests itself for not accepting their story is that they may have lied in order to avoid admitting that they A were taking part in an illegal transaction, but this may afford no reason, if the appellant's story cannot reasonably be true, for not accepting their version, which contains no other inherent improbabilities. The question, therefore is whether it can be said that there is no reasonable possibility of the truth of the appellant's story that Edwin handed over the worthless stones to the Frazers and that he, B the appellant, was ignorant that they were not genuine diamonds.

The factors in favour of this view are (a) that important statements made by the Frazers and by de Villiers were not made the subject of cross-examination of these witnesses, (b) that there are conflicting statements in appellant's evidence which show that he is an unreliable witness - if his story were true one would not expect these conflicts C - and they suggest that he was concocting his story as he went on, (c) his evidence that, although professing to be an agent who had delivered genuine diamonds, belonging to his principal, to the Frazers, he of his own accord reduced the agreed price by £1,000 or £1,500 because the diamonds were three or four less in number than what he had D agreed to deliver - an allowance far in excess of what was justified. I think (a) and (b) may be explained by the fact that he is a person who is untruthful and irresponsible in his statements and says what he thinks advisable on the spur of the moment and in addition (a) may...