IN THE REGIONAL DIVISION OF THE CAPE

HELD AT WORCESTER
Case NO. : WRC
56/2014

In the matter between

SHANE PIETERSEN AND OTHERS

ACCUSED

and

THE STATE
________________________________________________________________
HEADS OF ARGUMENT
S v JOCHEMS 1991 (1) SACR 208 (A)
Where, in a criminal trial, the onus of proof is clearly on the State, the accused is not
obliged to convince or persuade the trial Court of J anything, and any
1991 (1) SACR p209

MILNE JA

A suggestion to that effect is misplaced. The use of the word 'oortuig' (in English
'convince') in dealing with the accused's evidence is inappropriate. If the Court finds
that the accused's version might reasonably be true, that is sufficient. There is no
question of the Court having to be convinced that that is so.
C In considering whether the State has discharged the onus of proof resting on it, the
trial Court is obliged to consider the evidence as a whole and such defects as there
might be in the evidence of the accused does not materially assist the State in
discharging the onus if the evidence of the State witnesses is open to serious
criticism

FACTS OF THE CASE:

There is several charges against accused2. 2 of Robbery with aggravating circumstances.

Its like casting stone the onus rest on the state to prove beyond a reasonable doubt that
the accused is guilty of the charge.
Accused decided to plead not guilty on all the charges put to him and elected to make no
plea explanation.
The state did not prove its case beyond a reasonable doubt.

The state called a number of witnesses. It is my submission that none of the other
witnesses called by the state in relation to charge 4 and 5 can take the matter any further.

LUYINA KAHLE

On the night in question, he was with his friend. They were at a pub/tavern, were they
consumed beers, which contained alcohol.

Later on they went to another yard and were approached by 3 persons.

2 persons came to him and the other one approaching this friend.

It was dark although there was this high street lights.

I person stopped him, search him and asked him if he had anything on him.

While they searched him, he loosen his jacket, because he had stuff in his pocket and
before they reached the place where he had the phone , he started running away.

They tried to stop him by grabbing him from behind and it was when he run out of his
jacket.

He never testified that they threatened him, to undress himself so that they can rob him
from his jacket.

He also testified that the culprits had a knife, but the knife was in the side.

They never used the knife in the robbery. Never used the knife to threatened him

The testimony of Raymond Jaftha is the same.

He also testified that he knew the accused, but they are not friends.

Its just from the area where they live.

When dealing with the elements of the offence, it is clear that not all the elements of the
offence were proven by the state.

When it comes to the accused his version only need to be reasonably possibly true. The court
need not to be convinced that it is so. The accused himself testified at most as to what was put to
the state witnesses.

S v ABADER 2008 (1) SACR 347 (W)

Trial - Cross-examination - Accused's counsel must put his case to State witnesses - Such
duty not being inflexible rule, cast in stone, but being aid in evaluation of evidence - Mere fact
that something not put to witness not I necessarily indicating that accused fabricating, as
accused may genuinely have forgotten about it at time of cross-examination - Inflexible
application of rule failing to take into account defence counsel's own fallibility and possibly
resulting in grave injustice to accused - In present case, where contradictions abounding in
evidence of State witnesses, failure fully to put accused's version not impacting on credibility
of any of witnesses. J

Held , that, as regards the duty of defending counsel to put his client's version to
witnesses for the other side (whether the other side was the State, in a criminal
prosecution, or the plaintiff, in a civil matter), the rule that an accused or his legal
representative had to put to witnesses whom he cross-examined the version of
witnesses whom he intended calling to testify and D who would contradict the version
of the witness being cross-examined was not an inflexible, axiomatic rule, cast in
stone. It was founded upon logic and judicial experience in assessing evidence and
making credibility findings. A failure on the part of an accused or his legal
representative to act in accordance with the rule might indicate that the particular
witness was E guilty of fabrication. But, equally, it might not. Whether or not the
consequence followed depended on the particular circumstances of the case. The rule
served as an aid to a judicial officer in drawing the correct conclusions from the
evidence presented
Held , further, that it was also not uncommon for a cross-examiner not to put
something to a witness because his client might genuinely have forgotten about it,
only to be reminded of it when he (the client) was later F cross-examined by the
prosecutor. To seize upon something like that as evidence of the accused's
dishonesty was very unfair to the accused because it might lead to an incorrect
finding of fact being made by the presiding officer. (At 356 e .)

Held , further, that there were very few cross-examiners (even very experienced G
ones) who had not found themselves in a position of having put a version which, with
the benefit of hindsight, was not put as precisely as it should have been put, or not
having put something in cross-examination because, for whatever reason, it might
not have arisen during consultations. One had to appreciate how easy it was to slip
up as a cross-examiner. To apply some or other inflexible rule in such circumstances
might result in grave injustice H being done to the cross-examiner's client. (At 356 j -
357 b .)

Held , further, that, although the failure to put a version on a particular issue might
create the impression to the other side that the issue was not disputed, that was not
the position in the present case where contradictions in the evidence of the State
witnesses abounded. In those circumstances, the failure on the part of the defence
attorney to have fully put a version I could hardly be found to have had any impact
on the credibility of anyone who testified in the case. (At 357 b - c .)

Evidence - Adequacy of proof - Onus of proof on State - Reasonable possibility

that accused not guilty - Onus resting on State in criminal case being to prove
guilt of accused beyond reasonable doubt, not beyond all shadow of doubt - Our
law not requiring court to act only upon absolute certainty, but merely upon
justifiable and reasonable convictions, nothing more and nothing less - Court not
required to consider every fragment of evidence individually to determine its
weight - Cumulative impression, which all fragments make collectively, to be
considered in determining whether the accused's guilt established beyond
reasonable doubt. S v Ntsele 1998 (2) SACR 178 (SCA)

Evidence - Adequacy of proof - Onus of proof on State - Reasonable possibility

that accused not guilty - Circumstantial evidence - Court not required to consider
each factor separately and, if consistent with innocence of accused, to discard
same - Court to determine cumulative weight of all circumstances, and accused
only then entitled to reasonable doubt about question whether inference of guilt is
only reasonable inference. S v Mashiane en Andere 1998 (2) SACR 664 (NC)

Evidence - Adequacy of proof - Onus of proof on State - Whether version of

accused to be rejected - Not correct to accept a belief in the State's version as a
basis for rejecting the accused's version - Question is whether accused's
evidence is reasonably possibly true, in which case accused entitled to be
acquitted. S v Makobe 1991 (2) SACR 456 (W)