S v Kelly

• Jurisdiction: South Africa
• Judgment Date: 26 March 1980
• Citation: 1980 (3) SA 301 (A)

S v Kelly
1980 (3) SA 301 (A)

1980 (3) SA p301

Citation	1980 (3) SA 301 (A)
Court	Appellate Division
Judge	Jansen JA, Diemont JA and Botha AJA
Heard	March 6, 1980
Judgment	March 26, 1980

Flynote : Sleutelwoorde H

Criminal procedure — Evidence — Demeanour of witness — Factors to be had regard to — Demeanour never a substitute for evidence — Can merely reflect on and enhance the credibility of oral evidence.

Criminal procedure — Appeal — Weight to be attached to trial court's finding on credibility — Manner in which appeal Court handicapped to be borne in mind by such Court.

1980 (3) SA p302

Criminal procedure — Evidence — Witnesses — Calling of — No rule of practice compelling the prosecution to call witnesses — State has an A unfettered discretion — Failure to call a witness for the prosecution can at most lead to the drawing of an inference adverse to the prosecution.

Criminal law — Bribery and corruption — Contravention of Prevention of Corruption Act 6 of 1950 — Sentence — Seriousness of such offence — B Factors to which regard must be had — Imprisonment imposed on a first offender — Sentence upheld on appeal.

Headnote : Kopnota

There can be little profit in comparing the demeanour only of one witness with that of another in seeking the truth. In any event demeanour is, at best, a tricky horse to ride. There is no doubt that demeanour - 'that vague and indefinable factor in estimating a witness's credibility' (per C HORWITZ AJ in R v Lekaota 1947 (4) SA 258 (O) at 263) can be most misleading. The hallmark of a truthful witness is not always a confident and courteous manner or an appearance of frankness and candour. As was stated by WESSELS JA in Estate Kaluza v Braeuer 1926 AD 243 at 266: 'A crafty witness may simulate an honest demeanour and the Judge had often but little before him to enable him to penetrate the armour of a witness D who tells a plausible story'. On the other hand an honest witness may be shy or nervous by nature, and in the witness-box show such hesitation and discomfort as to lead the court into concluding, wrongly, that he is not a truthful witness. Nevertheless, while demeanour can never serve as a substitute for evidence, it can, and often does, 'reflect on and enhance the credibility of oral testimony'. The experienced trial officer is well aware of this fact; it is a matter of common sense. He observes the witness closely - evasions, hesitations and reactions to awkward E questions. He will note, if he is alert, 'all the incidental elements so difficult to describe which make up the atmosphere of an actual trial' (per Lord MACMILLAN in Watt v Thomas (1947) 1 All ER 582 at 590). As was pointed out by DAVIS AJA in R v Dhlumayo and Another 1948 (2) SA 677 (A) at 697, the Appellate Court has before it only the printed record of the evidence. The demeanour of the witnesses and the atmosphere of the trial F court cannot be adequately conveyed by the record and it is for this reason that 'the appellate Court must inevitably in the great majority of cases be handicapped; of that handicap it should never allow itself to be unaware'.

There is no rule of practice which compels the State to call witnesses, whether or not they be considered crucial to the prosecution. The G discretion of the State is unfettered in its choice of witnesses. Nor does failure to call a witness for the prosecution or render him available for the trial constitute a 'defect of procedure'; at most it may in certain circumstances lead the court to draw an inference adverse to the case for the prosecution.

The maximum penalties prescribed by the Prevention of Corruption Act 6 of 1950 indicate the seriousness with which the Legislature views these offences. Bribing has been described as a corrupt and ugly offence. In the business world it undermines integrity for the temptations offered are H often great. It is an insidious crime difficult to eradicate. It can, if unchecked or inadequately punished by the courts, have a demoralising effect on business standards and fair trading.

Appellant had been charged with 24 counts, and convicted on nine, of contravening s 2 (a) of the Prevention of Corruption Act 6 of 1950. In an appeal, a Provincial Division set aside the convictions on eight counts. The conviction on the remaining count was confirmed but leave to appeal had been granted both against the conviction and the sentence of 12 months' imprisonment. In such an appeal, it appeared that the conviction rested mainly on the evidence of a single witness, who was an accomplice, and that the appellant was a first offender. On the analysis of the evidence the Court found features which lent

1980 (3) SA p303

strong corroborative support to the story of the accomplice and made it more acceptable in contrast to the appellant's testimony,

Held, that the appeal should be dismissed and both the conviction and the sentence should be confirmed. A

Case Information

Appeal from a decision in a Provincial Division (HUMAN J and CILLIERS AJ) confirming the conviction and sentence imposed by a regional magistrate on one count only and granting leave to appeal against both conviction and B sentence on such count. The facts appear from the judgment of DIEMONT JA.

A I Katz SC for the appellant: In the circumstances the comments on Vermeulen's demeanour were not such that they put the Court a quo to disadvantage or this Court to disadvantage, particularly as demeanour is a notoriously fallible guide to honesty: see R v Dhlumayo 1948 (2) SA 677, C and demeanour must often give way to other matters such as the probabilities: Merchand and Another v Butler's Furniture Factory 1963 (1) SA at 890. Of equal importance is the fact that no finding of bad demeanour was made on the part of the appellant whose evidence on many aspects was accepted. There is nothing insofar as demeanour is concerned D to suggest that Vermeulen should have been preferred to him and this was apparently overlooked by the magistrate.

J L C J van Vuuren for the State: Die verhoorhof het die posisie van Vermeulen as 'n getuie korrek benader deur homself te vergewis van die versigtigheidsreël van toepassing. Hierdie benadering word gevind in 'n E groot aantal beslissings waar 'n getuie (soos Vermeulen) se getuienis 'n gehalte moet hê dat dit bo twyfel moet staan. Dit beteken nie dat sy getuienis vry van kritiek moet wees nie. Sien S v Van Vreden 1969 (2) SA te 531. Die aanwesigheid van 'n korrupte motief kan afgelei word uit die feite van 'n saak wat sal afhang van verskeie omstandighede. Appellant het F inter alia twee groot bedrae geld, in kontant in koeverte geplaas, in sy kantoor ontvang, nou verwant aan die toekenning van die Chute kontrak. Kyk S v Deal Enterprises (Pty) Ltd and Others 1978 (3) SA te 308C - D.

Die vonnis moet bekragtig word. Korrupsie (en omkopery) is misdade wat deur die howe in 'n ernstige lig beskou word. Elke saak moet egter volgens G sy eie meriete beoordeel word. Die verhoorhof het wel deeglik oorweging daaraan geskenk om die appellant nie gevangenisstraf op te lê nie. Sien S v Young 1977 (1) SA 602. Die opmerkings in S v Van der Westhuizen 1974 (4) SA te 62 - 64 rakende die noodsaaklikheid vir 'the strictest standards of honesty and integrity' (te 62H) vind steun in S v Gouws 1975 (1) SA te 12A, 16A. Die beslissing in S v Young (supra) toon duidelik aan dat H hierdie oorwegings ook van toepassing is in sake waar die privaatsektor ter sprake is soos die onderhawige geval onder die Wet op Voorkoming van Korrupsie.

Katz SC in reply.

Cur adv vult.

Postea (March 26).

1980 (3) SA p304

Judgment

Diemont JA:

This is a case of bribery and corruption. The appellant was charged in the regional court in Johannesburg on 24 counts of contravening A s 2 (a) of the Prevention of Corruption Act 6 of 1950. There were also alternative charges of fraud on counts 17 to 24. Appellant pleaded not guilty on all counts. He was acquitted by the trial court on 15 counts but found guilty on the remaining counts and sentenced to imprisonment. In the appeal which followed 18 months later the Transvaal Provincial Division B set aside the convictions on eight counts (17 to 24) so that only one count remained. The conviction and sentence on that count, count 8, was confirmed but leave to appeal was granted both on the merits and against the sentence of 12 months' imprisonment.

The charge on count 8 was amended during the course of the trial; in its amended form it read as follows:

'Count 8

C Whereas it is alleged in relation to this count that:

1.

During the first half of 1972 Fraser and Chalmers invited subcontractors to tender for supply of chutes.

2.

It was the accused's task to select and appoint the most favourable tenderer.

3.

Ravco (Pty) Ltd (hereinafter styled Ravco) through its directors, Mathys Vermeulen and Louis Ladeira was a prospective tenderer.

4.

At a meeting at the accused's home, the accused discussed the various tenders already received with Ravco's directors and advised them on which amounts to quote in order to secure the contract.

5.

The agreement was that the accused would be rewarded for supplying the information and the contract was subsequently awarded to Ravco.

Now therefore it is alleged that the accused is guilty of contravening s 2 (a) of Act 6 of 1958.

F In that during 1972, the exact date being unknown to the State, and at or near Johannesburg in the regional division of Transvaal, the accused, being an agent, did wrongfully and corruptly accept or obtain from Ravco a gift or consideration, namely two amounts of R2 000 each, as an inducement or reward for doing or omitting to do or for having done or omitted to do, G an act in relation to the affairs of his principal, to wit, the assistance given to Ravco's directors to enable them to submit the most favourable tender...