13
with precision, it is equally difficult for an accused person to defend himself in such
circumstances. It is unfair to criticise an accused who is faced with such sketchy details.
It is not surprising that the appellant found it extremely difficult to proffer more detail in
support of his denial of the incident.
[18]
The problems with the evidence of the State witnesses are not the only issues
that arise in this appeal. The judgment of the trial court is riddled with several
misdirections in its evaluation of the evidence. The trial court adopted a skewed
approach in the manner in which it analysed the evidence. All the contradictions in the
State’s case are explained and justified whilst the same generosity is not shown to the
evidence of the appellant. The court was critical of the failure by the appellant to
disclose his defence timeously and concluded that it must have been an after-thought
on his part. Such criticism was unwarranted. As the court stated in R v Mtembu 1956 (4)
SA 334 (T) at 335H-336B:
The magistrate in his reasons for judgment obviously takes the view that if the evidence of the
traffic inspector is accepted then the accused was guilty of driving to the danger of the public. In
coming to the conclusion that that evidence is to be accepted he said that the inspector either
saw the accused drive as he says or he has come to court to commit perjury. That is not the
correct approach. The remarks of the late MILLIN, J., in Schulles v Pretoria City Council, a
judgment delivered on the 8th June, 1950, but not reported, are very pertinent to this point; he
says:
‘It is a wrong approach in a criminal case to say “Why should a witness for the prosecution
come here to commit perjury?” It might equally be asked: “Why does the accused come here to
commit perjury?” True, an accused is interested in not being convicted, but it may be that an
inspector has an interest in securing a conviction. It is, therefore, quite a wrong approach to say
“I ask myself whether this man has come here to commit perjury, and I can see no reason why
he should have done that; therefore his evidence must be true and the accused must be
5
convicted.” The question is whether the accused's evidence raises a doubt.'
5
See also S v Ramochela 1997 (2) SACR 494 (O) at 496a-e; S v Kubeka 1982 (1) SA 534 (W) at
536D-537D and cases there cited.
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