Recent Case: Law of Evidence

• Citation: (2024) 37 SACJ 156
• DOI: https://doi.org/10.47348/SACJ/v37/i1a8
• Published date: 21 August 2024
• Pages: 156-170
• Author: Whitear-Nel, N.
• Date: 21 August 2024

Law of evidence

NICCI WHITEAR-NEL

University of KwaZulu-Natal

1 Contradictions in evidence and rebuttal of expert

evidence

In the case of S v Arlow 2023 (2) SACR 102 (MM), the appellant

was convicted of attempted murder and sentenced to ve years’

imprisonment (at para [1]). He appealed against both the sentence

and conviction. The appeal against conviction was based mainly on

contradictions, discrepancies and improbabilities in the complainant’s

evidence which allegedly were not properly taken into account by

the court (at para [7]). The appeal against the sentence was based

on the argument that the court a quo erred in not following the

recommendation of a clinical psychologist who testied in mitigation

of the sentence because, inter alia, the state had not disputed her

evidence (at para [31]).

The facts of the case were that the appellant was a captain in

the South African Police Ser vice who was deployed to the Kruger

National Park, where he searched motor vehicles exiting the park (at

para [2]). On the day of the incident, the complainant exited the park,

and the appellant gave chase, catching up to the complainant about

50km away from the gate (at para [3]). The appellant approached the

complainant’s vehicle with his rearm in hand and discharged it into

the complainant’s car door, hitting him in the ankle (at para [4]). Then

he got back into his (the appellant’s) car and drove back to the gate

(at para [3]).

The appellant alleged that the trial court had not taken sufcient

cognisance of certain contradictions in the evidence, namely that

the complainant had said that his car was not searched at the gate,

whereas a passenger in his car had said that the vehicle was searched;

that the complainant did not see the appellant at the gate, whereas

the passenger said that he had seen the appellant at the gate; and

that the complainant testied that after being shot he climbed out

of the vehicle and grabbed the appellant by his clothes whereas the

passenger simply said that the complainant had realised he could not

drive, and they swopped seats so that the passenger could drive (at

par a [7]).

The appeal court distinguished between contradictions and

what were simply different observations by different witnesses. For

example, there was no contradiction between the complainant saying

156 SACJ . (2024) 1

https://doi.org/10.47348/SACJ/v37/i1a8

(2024) 37 SACJ 156

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