Credibility and reliability of witness

In Doorewaard and Another v S [2021] 1 All SA 311 (SCA): Appeal dealing with the death of a 15-year-old boy (the deceased). The state and the defence presented mutually destructive versions of the circumstances surrounding the boy’s death.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Evidence – credibility and reliability of witnesses: The present appeal dealt with the death of a 15-year-old boy (the deceased). The state and the defence presented mutually destructive versions of the circumstances surrounding the boy’s death.

The main witness for the state, Mr Pakisi, testified that the appellants in Doorewaard and Another v S [2021] 1 All SA 311 (SCA) assaulted, mishandled, and threw the deceased out of a moving van, and assaulted, kidnapped and intimidated him. He had been walking towards a sunflower field when he heard a gunshot. He then saw the second appellant holding a firearm and running towards a quad bike, which he drove towards the first appellant, who was in a van with an unknown white man. Mr Pakisi testified that he heard the deceased crying in the back of the van, before the second appellant threw him out of the moving van. After the appellants picked up the deceased again, they drove into the field, and on re-emerging, they confronted Mr Pakisi about what he had seen. He alleged that he was kidnapped, threatened and assaulted by the appellants. He stated that he subsequently attempted to lay charges against the appellants but was met by a lack of cooperation by the police.

The appellants denied all the charges against them. They alleged that on that day they had noticed two boys stealing sunflower heads from their employer’s farm. They had traced one of the boys, which was the deceased. The appellants alleged that the boy had agreed to take them to the other boy, and had sat in the back of their van, but had jumped out of the moving van during the drive, injuring himself.

The appellants were convicted in the High Court on charges of murder, kidnapping, intimidation, theft, and the pointing of a firearm. They obtained leave to appeal against their convictions.

The state bears the onus to prove the guilt of an accused beyond a reasonable doubt. Where there are two mutually destructive versions, as in this case, the court must consider the credibility and reliability of the witnesses. Evidence that is reliable should be weighed against the evidence that is found to be false and, in the process, measured against the probabilities. In the final analysis the court must determine whether the state has satisfied the requirement of proof beyond a reasonable doubt.

In this case, there were serious evidentiary deficiencies due to the manner in which the case was handled and investigated by the police. There were also material discrepancies in the evidence of Mr Pakisi, who was a single witness with no corroboration to his evidence. The inference drawn by the trial court that the deceased had been thrown from the van was not supported by the facts. Even though the appellants’ version regarding how the deceased vanished from their vehicle was unsatisfactory, the state did not prove its case beyond a reasonable doubt. Consequently, the appeal was upheld and the appellants were acquitted.

In a minority judgment it was stated that the murder charge should be replaced with one of culpable homicide in that the appellants had negligently caused the death of the deceased by not providing any medical assistance after he was injured.

• Merilyn Rowena Kader
  Legal Editor at LexisNexis