S v Felthun

• Jurisdiction: South Africa
• Judge: Vivier JA
• Judgment Date: 03 March 1999
• Citation: 1999 (1) SACR 481 (SCA)
• Hearing Date: 22 February 1999
• Counsel: D J Uijs SC and D N Unterhalter for the appellant W G Downer for the State
• Court: Supreme Court of Appeal

Vivier JA:

This is an appeal on a special entry in terms of ss 317 and 318 of the G Criminal Procedure Act 51 of 1977 ('the Act'). The appellant and one Agnew were convicted in the Cape Provincial Division by Foxcroft J and assessors on a charge of murder and the appellant was, in addition, convicted of theft. The appellant was sentenced to an effective 16 years' imprisonment. His application for leave to appeal against his convictions was refused by the Court a quo and a petition to the Chief Justice was unsuccessful. H

The special entry was made under the following circumstances. During the trial, after both the State and the defence had closed their cases but before argument commenced, the State applied to reopen its case so as to lead the evidence of a pharmacist, one Albert, relating to the exact time Denis Marock ('the deceased') I visited the pharmacy on the day he was killed, which was Tuesday 4 October 1994. Despite objection by the defence the State was allowed to lead the evidence. Immediately after Albert had testified the presiding Judge made the following special entry on application by the defence: J

Vivier JA

A 'Whether or not the order allowing the State to reopen its case, withdraw an admission and to lead evidence as to the time the State witness Albert saw the deceased on 4 October 1994 after the close of the defence case was irregular or not according to law.'

B The State case was that the deceased was killed during the late afternoon of 4 October 1994 in the warehouse of a firm called Bi - Lo Wholesalers in Albert Road, Woodstock, by a hired killer or killers acting for reward at the instigation of the appellant and Agnew. The deceased was killed with a pickaxe handle or similar blunt object. There was no direct evidence as to what happened in the warehouse C or how exactly the deceased met his death. It was not in issue that the deceased was seen alive in the warehouse at about 17:00 that afternoon. The appellant's evidence was that he met the deceased and Agnew at the warehouse at about 16:30 that afternoon and that he left the warehouse together with the deceased at ten minutes to five. Thornhill - Fisher, who testified on behalf of Agnew and whose D evidence was accepted as reliable by the trial Court, said tht he saw the appellant talking to the deceased in the warehouse at about 17:00. The State witness Sharon Reynolds, who lived with the deceased, said that the deceased left their house at half past two that afternoon for an appointment with his attorney at three o'clock after which he intended calling at a pharmacy to get his medication for his eczema before attending a meeting with the appellant and Agnew at the E warehouse. She never saw him alive again. His body was discovered a week later in the boot of his car in an open field some distance from the warehouse.

Albert is the owner of a pharmacy near the warehouse and did not orginally testify F during the State case. In an affidavit deposed to by him on 10 March 1995 and handed in by consent as part of the State case, he said that the deceased arrived at the pharmacy at five minutes to five that afternoon, that he purchased his normal monthly medication on a repeat prescription and that he left the pharmacy at about five minutes past five. Albert was able to determine the time of the deceased's visit to the pharmacy from the computer clock time printed on the G invoice of the sale, which shows the time of the sale as 17:12. Albert stated in his affidavit that when he made the affidavit on 10 March 1995 he checked the accuracy of the computer clock and found it to be 10 minutes out. He thus calculated that the real time he attended to the deceased was 17:02 and not 17:12 as indicated on the invoice.

H Albert's time conflicted with the evidence I have referred to above. It was for that reason that the State applied to reopen its case and to lead Albert's evidence in order to show that the times stated in his affidavit could be wrong. Albert then testified that when he was first approached by the police he had no independent recollection of the time of the deceased's visit to the pharmacy and that he was I only able to fix the time from the computer clock time printed on the invoice. During the week before he testified he was again approached by the police who wanted to know whether it was possible that the deceased's visit to his pharmacy was earlier than what he had stated in his affidavit. He then re-examined his computer records J and found the so-called audit trail in respect of the day in question. This is a computer printout reflecting the day's entire

Vivier JA

transactions and the times thereof. This document, which was handed in at the A trial, shows...