S v Francis

• Jurisdiction: South Africa
• Judgment Date: 26 November 1990
• Citation: 1991 (1) SACR 198 (A)

S v Francis
1991 (1) SACR 198 (A)

1991 (1) SACR p198

Citation	1991 (1) SACR 198 (A)
Court	Appellate Division
Judge	Smalberger JA
Heard	November 2, 1990
Judgment	November 26, 1990
Counsel	P A M Magid SC (with him P N Langa) for the appellants; B J Schönfeldt for the State

Flynote : Sleutelwoorde B

Evidence — Adequacy of proof — Failure of accused to testify — Effect — Although accused fails to testify, it does not follow that State evidence necessarily true or that Court bound to accept it — Court to evaluate State evidence properly in order to determine whether it measures C up to standard required for its acceptability — If it fails to measure up to such standard, failure of accused to testify would not avail State in discharge of onus of proof upon it — Failure of accused to testify only a factor in deciding whether his guilt has been proved where State has prima facie discharged onus upon it.

Appeal — Generally — Trial Court's acceptance of evidence of a witness — Trial Court's conclusion thereon presumed, in the absence of B misdirection by trial Court, to be correct — Appellant to convince appeal Court on adequate grounds that trial Court's acceptance of witness' evidence wrong and not sufficient that there was a reasonable doubt that trial Court correct — Trial Court having advantage in appraisal of witness and appeal Court will be entitled to interfere with trial Court's evaluation of oral testimony only in exceptional cases.

E Evidence — Accomplice — Acceptability of accomplice's evidence — Not necessarily expected of accomplice that he should be wholly consistent and wholly reliable or even wholly truthful — Ultimate test, after cautiously considering accomplice's evidence, is whether Court satisfied beyond reasonable doubt that in its essential features the story he tells is a true one.

F Evidencee — Of pointing out — Inference to be drawn therefrom — Accused pointing out place where weapons then found — Accused's knowledge of place where weapons were may, depending on circumstances, lead to inference of possession thereof — Possible innocent explanation of knowledge will rarely merit serious consideration if not given under oath.

Headnote : Kopnota

G Although, because an accused has failed to testify, the evidence of the State implicating the accused stands uncontradicted, it does not follow that such evidence is necessarily true or that the trial Court is bound to accept it. It is therefore incumbent upon the trial Court properly to evaluate the State evidence in the light of its alleged deficiencies and H the criticisms voiced against it in order to determine whether it measures up to the standard required for its acceptability. If if does not measure up to such standard, it will not avail the State in the discharge of the onus of proof upon it that the accused failed to testify. While an accused person's failure to testify may in appropriate circumstances be a factor in deciding whether his guilt has been proved beyond all reasonable doubt, this is only so where the State has prima facie discharged the onus upon I it. A failure to testify will not remedy a deficiency in the State case such as the absence of apparently credible implication of the accused.

The powers of a Court of appeal to interfere with the findings of fact of a trial Court are limited. In the absence of any misdirection the trial Court's conclusion, including its acceptance of a witness' evidence, is presumed to be correct. In order to succeed on appeal, the appellant must therefore convince the Court of appeal on adequate grounds that the trial J Court was

1991 (1) SACR p199

A wrong in accepting the witness' evidence - a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the advantage which a trial Court has of seeing, hearing and appraising a witness, it is only in exceptional cases that the Court of appeal will be entitled to interfere with a trial Court's evaluation of oral testimony.

It is not necessarily expected of an accomplice, before his evidence can B be accepted, that he should be wholly consistent and wholly reliable, or even wholly truthful, in all that he says. The ultimate test is whether, after due consideration of the accomplice's evidence with the caution which the law enjoins, the Court is satisfied beyond all reasonable doubt that in its essential features the story that he tells is a true one.

The fact that an accused has pointed out the precise location of C something (in the present case, the place where weapons were buried) justifies an inference of knowledge on his part relating to that thing (in casu that the weapons were buried there). Such knowledge may have been acquired in a number of ways, for example the accused may have personally concealed the weapons there, or have observed someone else do so, or he may have been told that they were buried there. Knowledge by the accused D cannot therefore per se be equated with possession of the thing (weapons) by him. But knowledge may, depending upon the circumstances, lead to an inference of possession and, ultimately, guilt in respect of an offence in connection with the weapons. In this regard it should be emphasised that possible innocent explanations of knowledge will rarely merit serious consideration if they are not put forward under oath. E

Case Information

Appeal from convictions in the Natal Provincial Division (Thirion J). The facts appear from the judgment of Smalberger JA.

P A M Magid SC (with him P N Langa) for the appellants referred to the following authorities: As to the application of the cautionary rule relating to the acceptance of the evidence of accomplices, see R v F Ncanana 1948 (4) SA 399 (A) at 405-6; R v Nqamtweni and Another 1959 (1) SA 894 (A) at 897H-898D. As to the factor that the State evidence should not automatically be accepted as being true because an accused has not given evidence, see Siffman v Kriel 1909 TS 538 at 543; Nelson v Marich 1952 (3) SA 140 (A) at 149; Shenker Bros v Bester 1952 (3) SA 664 (A) at 670, and as to the weight to be given to such failure being dependent upon there being apparently credible implication of the accused, see S v Gokool G 1965 (3) SA 461 (N) at 469D; S v Masia 1962 (2) SA 541 (A) at 546D-H; S v Matsiepe 1962 (4) SA 708 (A) at 716D; and cf R v Ismail 1952 (1) SA 204 (A) at 210B-D. As to the significance of the pointing out by an accused and whether an inference of knowledge or possession of a thing found there arises therefrom, see R v Tebetha 1959 (2) SA 337 (A) at 346D; S v Tsotsobe and Others 1983 (1) SA 856 (A) at 864D; S v Gwevu and Another H 1961 (4) SA 536 (E) at 537E; S v Magxwalisa and Others 1984 (2) SA 314 (N). As to possession involving corpus (direct physical control or detentio) and animus, ie an intention to exercise control, see S v Adams 1986 (4) SA 882 (A) at 890G-891I; R v Binns and Another 1961 (2) SA 104 (T) at 107B-F; S v Smith 1965 (4) SA 166 (C) at 171E; Joubert (ed) Law of South Africa vol 6 at para 392; R v Betelezie 1941 TPD 191; R v Masangu I and Another 1941 (2) PH H259 (T); S v Mphahlele and Another 1982 (4) SA 505 (A) at 518F; and cf S v Majola 1975 (2) SA 727 (A) at 731A-E and S v Mkize 1975 (1) SA 517 (A) at 525A.

B J Schönfeldt SC for the State referred to the following authorities: As to the dangers inherent in the evidence of accomplices and the trial Court having approached such evidence correctly, see S v Hlapezula and Others 1965 (4) SA 439 (A). As to the requirements for acceptability of J the evidence of an

1991 (1) SACR p200

A accomplice, see R v Kristusamy 1945 AD 549; S v Ismail and Others (2) 1965 (1) SA 452 (N); S v Robinson and Others 1968 (1) SA 666 (A); Du Toit and Others Commentary on the Criminal Procedure Act at 24-3-24-5. As to the presence of safeguards reducing the risk of a wrong conviction on the evidence of single accomplice, see R v Gumede 1949 (3) SA 749 (A); S v B Masuku 1969 (2) SA 375 (N); Du Toit and others (op cit at 24-4); S v W 1963 (3) SA 516 (A). As to the State case amounting to prima facie proof and the failure of the accused to testify strengthening such case and rendering the evidence conclusive, see S v Nkombani 1963 (4) SA 877 (A) at 893F; S v Letsoko 1964 (4) SA 768 (A) at 776B-E; S v Theron 1968 (4) SA 61 (T) at 63D-64D; S v Mthetwa 1972 (3) SA 766 (A) at 769B-E; Hiemstra Suid-Afrikaanse Strafproses 4th ed at 33-5; Hoffmann and Zeffertt The C South African Law of Evidence 3rd ed at 468-72; R v Ismail 1952 (1) SA 204 (A) at 210C. As to the pointing out of anything by an accused carrying an implied admission of some knowledge of the thing pointed out or facts connected with it, see R v Tebetha 1959 (2) SA 337 (A); S v Moumbaris and Others 1973 (3) SA 109 (A) at 112H-113A; S v Tsotsobe and Others 1983 (1) SA 856 (A) at 864D; S v Shezi 1985 (3) SA 900 (A) at 906A. As to the D inference of knowledge, see S v Khanyile and Another 1968 (1) SA 201 (N); S v Ismail and Others (2) (supra); Hoffmann and Zeffertt (op cit at 177). As to the effect of the accused's failure to testify as to his pointing out, see R v Mohr 1944 TPD 105 at 108; S v Theron (supra). As to the evidence of the pointings out having to be considered against the E background of the totality of the circumstances of the case, see R v Blom 1939 AD 188 at 202-3; S v Shezi (supra at 905J-906B). As to the Court of appeal not speculating about possible explanations not raised by the appellant, see S v Rubenstein 1964 (3) SA 480 (A) at 487H-488A. As to the reluctance of a Court of appeal to reject a trial Court's findings of fact, see R v Dhlumayo and Another 1948 (2) SA 677 (A); S v Robinson and Others 1968 (1) SA 666 (A); Swain v Society of Advocates, Natal F 1973(4)SA 784 (A); S v Tshoko en 'n Ander 1988 (1) SA 139 (A); Minister van die...