S v Heller

• Jurisdiction: South Africa
• Judge: Holmes JA, Trollip JA and Miller AJA
• Judgment Date: 03 December 1970
• Citation: 1971 (2) SA 29 (A)
• Court: Appellate Division

Holmes, J.A., Trollip, J.A., et Miller, A.J.A.:

The appellant was convicted by NICHOLAS, J., sitting in the Witwatersrand C Local Division, on 12 counts of theft and two of fraud. He was sentenced to imprisonment as follows -

Count 4 - two years; count 8 - two years; count 9 - five years, count 10 - three years; count 12 - one year; count 15 - two years; count 16 - two years; count 19 - two years; count 20 - three years; count 21 - two years; count 23 - five years; count 24 - D three years; count 27 - five years; count 29 - five years. Total - 42 years.

All the sentences other than those on counts 8 and 9 were ordered to run concurrently with those on counts 8 and 9. Hence his sentence was, in effect, one of imprisonment for seven years. He appeals with the leave of the trial Court.

E The appellant was acquitted on 17 other counts. Throughout this appeal the numbering of the counts will be the same as in the trial Court.

The trial, from its inception until verdict, lasted from 28th October, 1968 to 19th June, 1970. The story which unfolded covered the period from March, 1962, until the end of 1965. Before dealing seriatim with the counts which are the subject F of this appeal, we think it would be helpful to set out the general background, as stated by the trial Court as follows:

[The learned Judges quoted from the judgment which dealt with (a) the founding of the Parity Insurance Co. Ltd., and the Trans-Atlantic Credit and Savings Bank Ltd. (Trans-Africa); (b) the relationship between the appellant and the State witness G Saevitzon; (c) the character of Saevitzon and (d) the character of the appellant. The learned Judges then proceeded.]

In this Court, counsel for the appellant submitted that the learned trial Judge must have overlooked certain evidence, and certain factors relating to the probabilities; that the H witnesses were testifying to events which had happened several years previously, and that the learned Judge had made insufficient allowance for the haze of time; that the trial was a summary one and the defence had laboured under some difficulty because all available witnesses had been subpoenaed by the State and were not accessible to the defence for consultation; that the principal State witness, Saevitzon, was called towards the end of the State case, and that only then did the significance become apparent of various evidence given earlier in the trial; that it was not possible to obtain a statement from

Holmes JA, Trollip JA, et Miller AJA

the appellant on matters canvassed in the indictment, save in the most general way; that the cross-examination of the appellant, for 28 days, ranged from charge to charge and from point to point, with the witness under the constant necessity to relate the question to changing sets of circumstances; that a momentary loss of concentration or fatigue could well account A for such matters as hesitation or subsequent correction; that, from the nature of the prosecution, the defence and the appellant did not have timeous consideration of all the surrounding circumstances; and that certain State witnesses might well have yielded to the temptation of co-operating with the State and would have tended to give evidence in conformity B with the State's view, particularly in the light of the publicity which had been given to two earlier trials in which, so it was submitted, the appellant had been branded as somebody sinister. Counsel also dilated upon the character, motives and villainy of the main State witness, Saevitzon, who, like other witnesses for the prosecution, was an accomplice. Counsel urged the need for the greatest caution in approaching the evidence C of Saevitzon who, he said, was a thief and a cunning plotter who had hoodwinked many people in pursuing his nefarious practices, and, as a witness, was a reckless inventor of facts to suit the exigencies of the moment.

As to all the foregoing, it is clear that most if not all of these points were raised and considered at the trial. The D learned Judge was quick to appreciate certain difficulties with which the defence had to contend. He was generous in the matter of adjournments; and in his appraisal of the appellant as a witness he made allowance for the position in which the appellant found himself. The trial Judge certainly did not, as was suggested by counsel for the appellant in regard to one of the counts, approach the case on the footing that the appellant E was a guilty man on whom there was some onus to indicate his innocence. In this regard it is not irrelevant to point out that the learned Judge acquitted the appellant on 17 out of the 31 counts. With regard to the evidence of the accomplices, the learned Judge was conscious of the dangers inherent in their F testimony, and of the particular need for the existence of some safeguard against wrong conviction. He bore this pertinently in mind in regard to Saevitzon. He said,

"I do not think that there is any reason to doubt Saevitzon when he speaks of his own part in the crimes charged, especially where he has not been cross-examined in this connection. Where, however, his evidence implicates the accused, it would not in my view be safe to rely upon it in the absence of other reliable evidence or proved or admitted G circumstances, which show that it is safe to accept it".

I would add that, in terms of sec. 254 (1) of Act 56 of 1955, the trial Judge in his judgment granted an indemnity to Saevitzon and the other State witnesses who were accomplices, being satisfied that they had fully answered the questions put H to them while giving evidence under oath. Furthermore, the trial lasted for many months. The appellant himself was in the witness-box for a total of 34 days; and Saevitzon's evidence runs to some 1,500 pages. This is therefore pre-eminently a case in which the trial Judge, seeing and hearing the witnesses, observing their demeanour, and being steeped in the atmosphere of the proceedings, had advantages of appraisal, in the matter of the witnesses and their testimony, which a Court of Appeal does not have. Moreover, it is evident

Holmes JA, Trollip JA, et Miller AJA

from the conscientious and thorough judgment that the trial Judge was at considerable pains to weigh in the scales all the relevant pros and cons, and to be fair to both sides. Bearing all the foregoing in mind, we do not consider that there are A any factors warranting interference on appeal with the general findings of credibility made by the trial Court, save as may otherwise appear in regard to individual counts.

Of course, the onus of proof being on the State and Saevitzon's implicatory evidence being suspect, the foregoing strictures on the credibility of the appellant do not necessarily preclude this Court from holding that the trial Court ought to have B found, in the circumstances of any particular count, that the appellant's version thereon could reasonably be true. Indeed, this was largely the approach of counsel for the appellant.

With that prelude we turn to a consideration of the individual counts on which the appellant was convicted.

C Count 4.

The appellant was convicted of the theft of R13,725 from Parity in Johannesburg on 10th September, 1962. It is common cause that the appellant was a party to the payment of that amount from Parity's funds to the account of Waghan Investments (Pty.) D Ltd. (We shall refer to the latter as Waghan). The basis question on appeal is whether we are persuaded that the trial Court was wrong in holding that the appellant, in doing what he did, had the intention to steal the said sum from Parity.

[The learned Judges analysed the evidence and proceeded.]

Count 8.

E This count relates to the theft by Saevitzon, Reisen and Hill of a sum of R9,135 from Parity. It was alleged by the State, and found by the trial Court, that the appellant was a party to the theft and he was accordingly convicted thereof.

[The teamed Judges analysed the evidence and proceeded.]

F On a final analysis, therefore, it is apparent that the State case depends in very large measure, if not entirely, upon acceptance of Saevitzon's evidence. Not only is his evidence naturally suspect because of his role of accomplice turned informer, but there is very much more than a suspicion, as we G have shown, that in regard to the conversations which he claimed to have had with the appellant, he was deliberately lying. And for the reasons set out above, the feature upon which the learned Judge a quo most strongly relied as furnishing corroboration of Saevitzon's evidence, is at best equivocal because of the reasonable possibility that the money was stolen for a purpose other than that of benefiting the appellant and that the theft was therefore kept secret from the H appellant. It is germane to observe, moreover, that the very factors which were regarded as being corroborative of Saevitzon, depended in some measure upon what Saevitzon himself said and upon what he did. As we have pointed out, it was Saevitzon who dealt with the proceeds of the theft, it was he who made the book entries upon which the State relied and it was he, and only he, who testified to the appellant's complicity. The appeal on count 8 succeeds.

Count 12.

Holmes JA, Trollip JA, et Miller AJA

This count falls within a mould similar to that which contains count 8. The allegation made against the appellant was that he was a party to the theft by Saevitzon and Hill of R1,585, payment of which they extracted from Parity by means of a fictitious invoice which they prepared in the name of "Brille Bros." and which reflected that R1,585 was payable by Parity A for printing work. In this case, as in the case of count 8, it was common cause and the evidence established that the theft was committed substantially in the manner alleged by the State and the only issue is whether it was established that the appellant...