S v Hassim and Others

• Jurisdiction: South Africa
• Citation: 1973 (3) SA 443 (A)

S v Hassim and Others
1973 (3) SA 443 (A)

1973 (3) SA p443

Citation	1973 (3) SA 443 (A)
Court	Appellate Division
Judge	Van Blerk JA, Holmes JA and Potgieter JA
Heard	February 15, 1973; February 16, 1973; February 17, 1973; February 18, 1973; February 19, 1973; February 20, 1973; February 21, 1973; February 22, 1973; February 23, 1973; February 24, 1973; February 25, 1973; February 26, 1973; February 27, 1973; February 28, 1973; March 1, 1973
Judgment	April 2, 1973

Flynote : Sleutelwoorde A

Criminal procedure — Evidence — On commission — When granted — Power to be sparingly used — Need to show relevance — Sec. 235 of Act 56 of 1955 — Information obtained from detainees B under the Terrorism Act, 83 of 1967 — Value of — Approach by Court.

Headnote : Kopnota

Section 235 of Act 56 of 1955 confers a wide discretion on a Superior Court whether to grant a commission or not. The power to issue a commission should be sparingly used. The Appellate Division will not interfere with the trial Judge's exercise of his discretion unless it is shown that he misdirected himself or did not exercise his discretion judicially.

C Quaere: Whether the section applies where the witness is a fugitive from justice. The decision in the Natal Provincial Division in S. v Hassim and Others, 1972 (2) SA 448, confirmed.

A person detained under the Terrorism Act, 83 of 1967, may be so detained until, inter alia, a commissioned officer of or above the rank of LieutenantColonel is satisfied that he has satisfactorily replied to all questions at the interrogation. The object is the acquiring of information. But if a prosecution should ensue the Court is not obliged D to be satisfied with the evidence so acquired. The Court retains its normal powers and functions which it will exercise with vigilance and scrutiny, to pronounce upon the evidence before it, bearing in mind, inter alia, in any particular case, the question whether the circumstances under which the evidence was obtained has affected its credibility.

Four of the appellants had applied for the taking of evidence on commission in London of certain witnesses to testify as to 'the E so-called pattern of interrogation' said to have been experienced by them at the hands of the security police in other cases in South Africa. This application had been refused. In an appeal, it appeared that the issue was whether the admitted campaign in which these four appellants were involved was for political recruitment or military training.

Held, that the test for the admissibility of such evidence was relevance and, as the appellants had not shown to what issues such evidence was relevant, that there was no point in a commission and the application F had rightly been refused.

The decision in S. v Hassim and Others, 1972 (2) SA 448 (N), confirmed.

Case Information

Appeal from convictions and sentences imposed in the Natal Provincial Division (JAMES, J.P., and assessors). Facts not material to this report have been omitted.

I. Mahomed, for appellant No. 1.: The evidence of Nkosi and Njonga about the meeting at the office of Gabby Pillay is not corroborated by Pillay or Moodliar, although there is evidence that both these witnesses were detained for lengthy periods by the police. The inference is H unavoidable that Moodliar and Pillay were not called by the State because they would not corroborate this evidence. It is true that after the end of the State case Moodliar and Pillay were available to the defence, but the inference is stronger against the State, because (i) the inference is stronger against the party bearing the onus; R. v Bezuidenhout, 1953 (3) SA at p. 196H; (ii) the inference is stronger against the State where the State has in fact obtained a statement from the witness not called; R. v Bezuidenhout, supra at p. 188B. Pillay and Moodliar were not witnesses equally available to both parties; G

1973 (3) SA p444

Webranchek v L. K. Jacobs (Pty.) Ltd., 1948 (4) SA at p. 682; Wigmore on Evidence, sec. 288.

I. Mahomed, for appellant No. 2: Having regard to the fact that findings against this appellant depended on the evidence of accomplices with strong motives, the unsatisfactory quality of the witnesses concerned, the circumstances under which they came to give evidence and the inherent and objective probabilities, the learned Judge should have enquired whether the version deposed to by the second appellant had been B proved to be false beyond a reasonable doubt and should have held that this was not proved. R. v M., 1946 AD 1023; R. v Difford, 1937 AD at p. 373. A

I. Mahomed, for appellants Nos. 4 and 6: The trial Court erred in refusing the application to have the evidence of Dr. Limbada taken on C commission. The denial of the opportunity to have this evidence was plainly prejudicial to the appellants. The Court adopted the view that the evaluation of the witness's demeanour and conduct while giving viva voce evidence in open Court was of fundamental importance. It would be the appellants who would have to labour under the disadvantage that the Court had not seen the witness (it could always hear the testimony of D witnesses given through mechanical recording devices), but this disadvantage is smaller than the disadvantage of not having the evidence placed before the Court at all: see S. v ffrench-Beytagh (2), 1971 (4) SA 426. The question as to whether any weight could be placed on the evidence would appear only after the evidence was recorded and it was E subjected to an examination of the inherent probabilities thereof, the internal consistencies and contradictions therein, questions such as whether the averments of the witness were supported by incontrovertible documents or other testimony, and the candour with which the testimony was given. The weight to be attached to the fact that the Court did not have the opportunity of questioning the witness would again depend on F the thoroughness with which the witness had been examined, and whether or not there indeed remained any questions of importance with counsel had not properly canvassed. The learned Judge also took into account the fact that Dr. Limbada had strong motives for being untruthful or evasive about his actions. This could quite properly have been taken into G account in assessing his testimony. The learned Judge also took into account the fact that Dr. Limbada would not be inhibited by the Republic's rules relating to perjury. This position is no different in this regard in the instant case from other cases where evidence has to be led on commission. The learned Judge was also of the view that sec. H 235 of the Criminal Code could only be applied where the evidence was to be heard within the jurisdiction of the Zambian Court. Sec. 235 did not prevent the issue of a commission to take the evidence of Dr. Limbada in London. First, in terms of sec. 235, 'any person' (as distinct from a magistrate) does not have any limits to his jurisdiction. The limits of his jurisdiction are precisely those conferred by the commission. Secondly. Dr. Limbada would in fact be residing in London whilst giving his evidence on commission. The learned Judge was also influenced by the consideration that such a commission might not be allowed to hear the evidence

1973 (3) SA p445

of Dr. Limbada, and that the local representatives of the State might not be given permission to travel, and a binding watertight undertaking that they would not be inhibited from doing their duty in any way. The application was being made on the basis that such facilities were obtainable, and it could have been a condition of the issue of the A commission that the necessary facilities were forthcoming.

It was not disputed that the onus was on the State to prove the averments contained in the charge as particularised, and this was in accordance with the authorities: See S. v ffrench-Beytagh, 1972 (3) SA 430; R. v Verity-Amm, 1934 T.P.D. 416; R. v Alexander, 1936 AD B 445. With regard to the State's allegation of a conspiracy, it is clear that a conspiracy implies an agreement between the appellants and the persons referred to in the indictment. Where such an inference is sought, it must be the only inference which is consistent with all the proved and known facts S. v ffrench-Beytagh, supra at pp. 439 - 44. C If, for example, the proved facts are consistent with a conspiracy or an agreement other than the agreement pleaded, the State cannot succeed. R. v Alexander, supra at p. 445; R. v S., 1959 (1) SA 683. The inference as to the conspiracy must not be drawn unless the explanations tendered by the appellants are shown to be false beyond a reasonable doubt; R. v M., 1946 AD at p. 1027; R. v Difford, 1937 D A.D. at p. 373. Statements made by co-conspirators in the absence of the accused in the execution of the conspiracy are admissible in evidence, but there must be aliunde proof of the fact that the person who makes the statement is indeed a co-conspirator; R. v Miller, 1939 AD 116; S. v ffrench-Beytagh, supra at pp. 455 - 456. The statement E of a co-conspirator is, however, not necessarily evidence of the truth of the contents thereof; R. v Miller, supra at p. 119; R. v ffrench-Beytagh, supra at p. 456A. Where documentary evidence is relied upon, the document is not evidence of the truth of the statements of fact therein contained; Weintraub v Oxford Brickworks (Pty.) Ltd., 1948 (1) SA at p. 1093. Where there is a single witness, regard must be had F to the provisions of sec. 256 of the Criminal Code, and the rule that such witness must be clear and satisfactory in every material respect; R. v Mokoena, 1932 OPD at p. 80; R. v Mokoena, 1956 (3) SA 81. Accomplice evidence must be treated with special caution, because an accomplice has a deceptive facility for convincing description - his G only fiction being the substitution of...