S v Van der Meyden

• Jurisdiction: South Africa
• Judge: Nugent J
• Judgment Date: 29 January 1999
• Counsel: A van der Colf for the State D F Dorfling for the accused
• Citation: 1999 (1) SACR 447 (W)
• Court: Witwatersrand Local Division

Nugent J:

The accused is charged with the murder of Leanne Daphne Muriel Tintinger and with assault upon her three-month-old child, Sinead, with intent to do grievous bodily harm. The accused has pleaded not guilty to both charges. E

F The onus of proof in a criminal case is discharged by the State if the evidence establishes the guilt of the accused beyond reasonable doubt. The corollary is that he is entitled to be acquitted if it is reasonably possible that he might be innocent (see, for example, R v Difford 1937 AD 370 at 373 and 383). These are not separate and independent tests, but the expression of the same test when viewed G from opposite perspectives. In order to convict, the evidence must establish the guilt of the accused beyond reasonable doubt, which will be so only if there is at the same time no reasonable possibility that an innocent explanation which has been put forward might be true. The two are inseparable, each being the logical corollary of the other.

H In whichever form the test is expressed, it must be satisfied upon a consideration of all the evidence. A court does not look at the evidence implicating the accused in isolation in order to determine whether there is proof beyond reasonable doubt, and so too does it not look at the exculpatory evidence in isolation in order to determine whether it is reasonably possible that it might be I true. In R v Hlongwane 1959 (3) SA 337 (A), after pointing out that an accused must be acquitted if an alibi might reasonably be true, Holmes AJA said the following at 340H-341B, which applies equally to any other defence which might present itself:

'But it is important to bear in mind that in applying this test, the alibi does not have to be considered in isolation . . . . The correct approach is to consider the alibi in the light of the J totality of the evidence in the case, and the Court's impressions of the witnesses.'

Nugent J

Counsel for the accused referred us to three cases which are frequently cited in A this Court in elaboration upon that test. In S v Kubeka 1982 (1) SA 534 (W) Slomowitz AJ said the following at 537F - H:

'Whether I subjectively disbelieve (the accused) is not the test. I need not even reject the State case in order to acquit him. I am bound to acquit him if there exists a reasonable possibility that his evidence may be true.' B

That passage does no more, in effect, than to reiterate that the conclusion of a criminal court...