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including, especially, the probabilities . . . A further and closely related danger is the implicit
assumption, in deferring to the trier of fact’s findings on demeanour, that all triers of fact
have the ability to interpret correctly the behaviour of a witness, notwithstanding that the
witness may be of a different culture, class, race or gender and someone whose life
experience differs fundamentally from that of the trier of fact.’ (footnotes omitted.)
[53]
Almost a century ago, this court, in Estate Kaluza v Braeuer 1926 AD 243 at
266-267 said the following:
‘A crafty witness may simulate an honest demeanour and the Judge has often but little
before him to enable him to penetrate the armour of a witness who tells a plausible story.’
In S v Kelly 1980 (3) SA 301 (A) at 308D-E, in considering that passage, stated:
‘On the other hand an honest witness may be shy or nervous by nature, and in the witnessbox show such hesitation and discomfort as to lead the court into concluding, wrongly, that
he is not a truthful person.’
The magistrates’ observation on assessment of the complainant in the witness-box is
no substitute for an assessment of the totality of the evidence including the merits
and demerits of the State’s case.
[54]
My colleague, although accepting that at least on the face of the evidence of
the appellant and the witness, Mr Moepeng, does not appear to be ‘afflicted by
shortcomings’ such as those in relation to the complainant and her mother sought to
explain that by stating that it was easy for them to avoid being seen as inconsistent
and contradictory because the complainant’s version of events was a bare denial. Mr
Moepeng, who testified about the route that was followed on the way to school, is
criticised by my colleague on the basis that whilst he purported to recall that during
2006 he had not missed a single day of school whilst he could not say with the same
degree of certainty that the complainant had also been present every day. I am
unable to see that as a proper basis for the rejection of his evidence. In S v Van der
Meyden 1991 (1) SACR 447 (WLD), the court said the following at 449j-450b:
‘The proper test is that an accused is bound to be convicted if the evidence establishes his
guild beyond reasonable doubt, and the logical corollary is that he must be acquitted if it is
reasonably possible that he might be innocent. The process of reasoning which is
appropriate to the application of that test in any particular case will depend on the nature of
the evidence which the court has before it. What must be borne in mind, however, is that the
conclusion which is reached (whether it be to convict or to acquit) must account for all the
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