S v Kubeka

• Jurisdiction: South Africa
• Citation: 1982 (1) SA 534 (W)

S v Kubeka
1982 (1) SA 534 (W)

1982 (1) SA p534

Citation	1982 (1) SA 534 (W)
Court	Witwatersrand Local Division
Judge	Slomowitz AJ
Heard	October 5, 1981
Judgment	October 5, 1981

Flynote : Sleutelwoorde D

Criminal procedure — Evidence — Witnesses — Cross-examination of — Questions ought not to be so couched that they appear as statements of facts to which others will depose when in truth such 'facts' are not E part of one's case and no evidence will be led thereon.

Criminal procedure — Evidence — Privilege — State making witnesses available to the defence — State not obliged to hand over such witnesses' statements — State's privilege in respect of such statements only lost where it is expressly or impliedly waived.

F Criminal procedure — Verdict — When conviction based on the evidence of a single witness permissible — Act 51 of 1977 s 208 — Law discussed and restated.

Headnote : Kopnota

While it is perfectly permissible cross-examination to test a witness' version of events by ascertaining the details thereof and then by interrogating him about them, one ought not in cross-examination so to G couch one's questions that they appear as statements of fact to which others will depose when in truth the 'facts' in question are not part of one's case and no evidence is intended to be led thereon.

The State is not obliged, when offering witnesses to the defence informally, to hand over to the defence the statements of such witnesses. The privilege accorded to the State in respect of such H statements is lost only where it is expressly or impliedly waived.

R v Steyn 1954 (1) SA 324 (A) applied.

The approach of the Court, when asked to convict, in terms of s 208 of the Criminal Procedure Act 51 of 1977, on the evidence of a single witness restated and discussed.

Case Information

Criminal trial on a charge of murder. The facts appear from the reasons for judgment.

J Theron for the State.

R W Nugent for the accused at the request of the Court.

1982 (1) SA p535

Judgment

Slomowitz AJ:

The accused stands before me on a charge of murder. According to Zacharia Mohali, the only witness called by the State, the crime was committed in this way: At about 5 am on 13 December 1980 he A and others, including the deceased, were passengers in a taxi driven by one Muzi. During the journey, Muzi called upon the passengers to pay their fares. The deceased refused. He was drunk and obstreperous. Muzi stopped his vehicle at a robot, alighted and forcibly removed the deceased. They came to blows as a result of which the deceased was B struck down. At about this time the accused, who was the driver of a taxi owned by the same person who employed Muzi as a taxi driver, arrived on the scene. He pulled up behind Muzi's taxi and was first observed by Mohali while walking towards the place where the fracas had occurred. He was so noticed by Mohali at the time that the deceased was C felled. On Mohali's version the accused was armed with a knife. He walked up to the deceased who was supine, and stabbed him once in the body.

From the report of the post-mortem that was performed, and which was put in by consent, it appears that the deceased sustained a 2,5 cm penetrating incised wound of the lung and heart, and that this was the death blow.

D With total unconcern for the deceased's condition, Muzi re-entered his taxi and departed. Mohali looked back and noticed the deceased trying to rise. He did not suggest to Muzi, or indeed to any of the other passengers, that someone should render assistance to the deceased. At E that time, according to Mohali, the accused was still at the scene. I should mention that the accused and Muzi are known to Mohali by sight only.

Mr Theron, who appeared for the State, then closed his case and informed me that he was tendering his remaining witnesses to the defence and making them available to Mr Nugent, who appeared pro deo for the F accused. On enquiry from me as to what precisely this tender encompassed, it appeared that Muzi was not at Court and Mr Theron stated that he had been told by the investigating officer that he, Muzi, had disappeared and was believed to be temporarily with his family in Natal.

G The accused's version, as deposed to on oath, followed closely that of Mohali's save for the material difference that, when he arrived on the scene, he found a knot of people near the taxi, amongst whom were the deceased and Muzi. The deceased was injured and bleeding but was on his feet and did not appear to be seriously hurt. According to him, he stopped at the scene because he observed that a fellow taxi driver was H stationary and it occurred to him that he might have sustained a mechanical breakdown or puncture, in which event he could have been of assistance. He spoke to Muzi who told him that the matter was trivial and that he need not concern himself with it. He then went on his way, leaving Muzi on the scene.

This last contradiction of Mohali's evidence was not put to the latter in cross-examination. What was put to him by Mr Nugent was that during the fight between Muzi and the deceased they were rolling about on the ground and that the deceased was gaining the upper

1982 (1) SA p536

Slomowitz AJ

hand. The accused was not cross-examined on any of these aspects. Had he been questioned, he might well have been able to elucidate why counsel A failed to challenge Mohali's version as to who left the scene first and why it was put to Mohali, apparently as a fact, that during the fight the deceased had gained the upper hand, when this was no part of the accused's case.

Accordingly, and because these were not in the result matters of moment, B I draw no inference adverse to the accused on this score. I feel, however, that I should say that, while it is perfectly permissible cross-examination to test a witness' version of events by ascertaining the details thereof and then by interrogating him about them, one ought not in cross-examination so to couch one's questions that they appear as C statements of fact to which others will depose when in truth the 'facts' in question are not part of one's case and no evidence is intended to be led thereon. Questions put in...