The failure of courts to adopt the correct approach to assessing the accused’s version of events when coming to a decision in a trial occurs far too often and, due to lack of funds or ignorance of the law, in many instances the party who has been convicted fails to take the matter further.
The Supreme Court of Appeal on September 29 2011 in Simphiwe Raymond Shusha v The State (609/10) [2011] ZASCA 171 once again confirmed the position as being that which is set out in S v Shackell 2001 (4) SA 1 (SCA) para 30.
“A court is entitled to test an accused’s version against the improbabilities. However, an accused’s version cannot be rejected merely because it is improbable. In S v Shackell, Brand JA put the matter thus in relation to inherent probabilities:
‘Of course it is permissible to test the accused’s version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true.’ “
That approach forms an integral part of the state overcoming its burden of proving its case against an accused beyond a reasonable doubt.
Simply put, even though the presiding officer — based upon all the evidence before him — is of the view that all the probabilities favour the state’s case he or she must acquit the accused unless the evidence shows that his or her version, on the basis of inherent probabilities can be said to be so improbable that it cannot reasonably possibly be true.
In the Shusha case (see link above) the presiding officer in the magistrate’s court clearly failed to adopt the correct approach to assessing the accused’s version which the SCA described as fatal and overturned the conviction and sentence.
Molemo ‘Jub Jub’ Maarohanye
Hip-hop artist Maarohanye and Themba Tshabalala are on trial in the Protea Magistrate’s Court where they face charges of murder, attempted murder and driving under the influence of drugs and alcohol arising from an alleged drag race in Soweto last year. The charges flow primarily from the deaths of four young boys which allegedly resulted from the incident.
The state has led a number of witnesses who claim to have seen the race, police who investigated the crash and experts who testified about a variety of issues ranging from the equipment used in filming the incident to the speed and manner in which the disaster took place.
The defence team have attacked these witnesses with vigour, the result of which will only be known once the magistrate weighs up all the evidence. Undoubtedly the accused will attempt a Section 174 application at the close of the state’s case to try and test the water and perhaps knock out one or two of the charges that have not been proved.
The application to the court submits that the state has failed to prove a case against the accused and asks that they be discharged prior to going onto the defence. In the Jub Jub case it may result in reducing the number of charges but it will not remove them all.
Jub Jub’s lawyers will then have to decide whether to call him to give evidence when they open the defence case.
As we have seen the approach adopted by our courts to an accused’s version means that if his explanation for the incident is reasonably possibly true then he must be acquitted.
But unlike the case of Shusha, which was discussed above, there is a wealth of forensic evidence available to the court which would assist the magistrate in making his decision. This includes expert testimony which shows, inter alia, the speed of and path taken by both vehicles and events giving rise to the crash.
The magistrate armed with the facts presented by the experts, where he considers them reliable, is then able to paint a picture in his mind of what transpired on that fateful day. Against that he can then factor in the evidence from both sides and ascertain which stand up to the known facts.
It also means that for the purpose hereof he would be able to see whether Jub Jub’s version, on the basis of inherent probabilities can be said to be so improbable that it cannot reasonably possibly be true or, equally, whether that version could be reasonably possibly true.
Of interest is the fact that Jub Jub has given a definitive sequence of events, which was put to one of the state’s witnesses in cross examination. This means that on defence he will be required to pursue that version or damage his credibility. Whether that will sit well with the forensic evidence will be crucial when the magistrate assesses Jub Jub’s version and makes his final decision.
Eugene Terre’Blanche
In the case of the alleged murder of Terre’Blanche, who was found dead on his farm near Ventersdorp last year, Chris Mahlangu and a teenager, who were employed by the AWB leader as labourers have both been charged.
Mahlangu, under his previous attorney, was granted bail after submitting an affidavit which set out a number of admissions. His present attorney on Monday opposed the affidavit forming part of the evidence during the trial but was rejected by the court.
Unlike the case of Jub Jub the crime scene won’t be as definitive of the events that played a part leading up to the death of Terre’Blanche. While often a car collision has many clues which give the court valuable assistance in assessing what took place, in a possible murder case they aren’t quite as clear cut. For example a blood test can expose a drunk driver, skid marks indicate speed and the like. A gun, on the other hand, even if it can be put in the hands of a suspect, does not tell you whether it was used in self-defence or otherwise.
The problem for Mahlangu is that if he deviates from his bail affidavit, which has certain admissions, it is going to lend itself to credibility problems. While the bail application is an interlocutory and inherently urgent step process aimed at deciding on whether an accused’s stay in custody or otherwise is appropriate, it can lend itself to major problems for the defence if admissions towards guilt are made at that stage. In trying to deal with the state’s allegations of a strong case and a client wanting freedom at any price attorneys can be pressurised into making admissions that are problematic at trial.
In the case of Mahlangu the judge, in assessing his version if he testifies, will be mindful of the affidavit he furnished in order to obtain bail. He will in all likelihood now have to testify due to the fact that if he fails to take the stand that affidavit will stand as his version.
The judge will accordingly be able to assess whether his explanation for the incident is reasonably possibly true or otherwise against the forensic evidence, witnesses and even his own bail affidavit.
While it may seem too easy to get off by simply putting forward a version that is reasonably possibly true that is not the case. Often the other evidence does not allow an accused to simply put forward a fanciful defence.
In addition our judges and magistrates are usually intelligent people who are able to sift through the evidence and extract the truth.
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