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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:
NIGEL TITUS APPELLANT
and

THE STATE RESPONDENT

CORAM : RABIE, ACJ, JANSEN et KUMLEBEN, JJA
DATE HEARD : 24 MAY 1988 DATE DELIVERED: 24 MAY 1988

JUDGMENT

KUMLEBEN, JA

On the 21st of October 1985 the appellant was

arrested in Peter Brown Avenue, in the district of

Bellville/
2. Bellville South, on a charge of public violence. In

due course he stood trial in the Regional Court and
was found guilty as charged. A sentence of 5 years'
imprisonment was imposed. He appealed to the Cape of
Good Hope Provincial Division against both the convic-
tion and sentence. The appeal was dismissed, as also
his application for leave to appeal. Such leave was,
however, granted on petition by this court.

The conviction in the Regional Court was

based on three grounds. Firstly, the acceptance of
the evidence of an eye witness, warrant-officer Scholtz.

Secondly, the rejection of the evidence of the appellant

as false. And thirdly the acceptance of an extra judicial

statement made by the appellant to detective-sergeant

Lampbrecht./
3. Lampbrecht. In this statement the appellant implicitly

admitted that he was on the scene, acknowledged that he
had thrown stones but denied that any had found their
mark.

I turn to consider briefly each of these three

grounds, starting with the evidence of warrant-officer
Scholtz. He said that on that particular morning there
was rioting in South Bellville and that it was intense
and widespread. He arrived near the scene of the rioting
at a certain stage in a Combi motor car which he parked
at a sports field behind a cement wall. He climbed on
top of the Combi and was then in a position to survey

the commotion that was taking place. He saw that tyres

and large stumps of wood were burning and smouldering

in/
4. in the street. These had been placed there to impede

the free-flow of traffic and a crowd of about 150 - 200
youths were gathered there. They threw stones at motor
vehicles as the cars attempted to avoid these obstructions.
When a police vehicle arrived the crowd dispersed, only
to re-assemble and resume the stone-throwing when it had
continued on its way. At that stage the witness said
that he identified the appellant and another person, whom
he described as "ring-leaders". Each time the crowd dis-
persed they would rally them and egg them on. He states
that he did not see the appellant himself at any stage
actually throwing any stones. After he had observed this
for a short while, he climbed from the top of the Combi,
went over to the cement wall, and approached the scene.

At/
5. At a distance of about 80 metres he noticed that a

large black lorry had been held up by the improvised
barriers. He saw the driver being instructed to leave
the cabin, which he did and fled, and as he approached
and was some 15 - 20 paces from the rear of this large

lorry, he noticed that the appellant, who had wedged
two large bags of paper under the rear of the lorry
near the petrol tank, was striking matches in an attempt
to set fire to the lorry. At this stage he fired four
shots from a shotgun with which he was armed. I stress
again that at this time he was only some 15 paces from
the appellant. The effect of the shots was to cause the
crowd to disperse. He kept his eye on the appellant,

chased him, but lost sight of hom momentarily as he went

through/

6.

through the front door of the block of flats some 50
paces from the lorry. He was nevertheless hard on his heels and followed him into a flat on the second floor of this building, through the front room, into the bedroom where he forcibly extracted the appellant from under the double bed where he was hiding.
The magistrate, after carefully examining the evidence of Scholtz, came to the conclusion that he was both a truthful and a reliable witness. On a reading of the evidence on record, these conclusions seem to be fully justified. There is really no good ground for questioning the honesty of Scholtz. Mr Albertus, who appeared for the appellant,whilst not conceding his cre-dibility, concentrated his argument on the possibility

that/
7. that there might have been mistaken identity on the

part of this witness. To my mind there is really no
scope for an argument that there was bona fide error.
Quite obviously at the distance from which he viewed the
scene at the Combi, which he initially estimated at a
hundred yards and at a later stage said might have been
as far as 200 yards, any identification at that stage
would not necessarily be accurate or reliable. He never-
theless said at that stage he could distinguish the facial
features of the appellant, and on this point he was not
cross-examined. He said he had a firm impression from
the facial features plus the height of the appellant, that he was the person who took such a prominent role in what

was going on. But the pertinent point is that, from the

stage/

8.

stage when he was some 20 paces away watching in broad
daylight what the appellant was doing, there can be no
doubt that he had ample opportunity to identify the
appellant. This is of course confirmed by the fact that
he gave chase, followed the appellant into this block
of flats and, as I have said, must have been hard on his
heels to know precisely where to go in the flat building
to find the appellant in a particular flat, in a particular
room, and under a particular bed.

Counsel suggested that this evidence was unre-

liable in a number of respects. To my mind, none of
those submissions indicated that there was any reason to
doubt the accuracy or the veracity of the testimony of
this witness. It was said that he contradicted himself

on whether he lost sight of the appellant on one or two

occasions./
9. occasions. If his evidence is read in context, it is

perfectly clear that when he made his one statement he
was referring to that portion of the episode before he
approached the lorry, and on the second occasion he was
referring to the time after the shots were fired. It was
also said with reference to his evidence relating to what
happened in the Bellville Police Station, that his evi-
dence, given in a trial-within-a-trial to determine whether
the statement ought to be admitted, was in various respects
vague and evasive. If one bears in mind that he had inter-
mittent contact with the appellant there, that various
people were being interrogated and others were involved

with other arrested persons, my understanding of his evi-

dence is that he was uncertain in respects where certainty

could/
10. could not be expected, and that he was not being de-

liberately evasive.

Thus as far as the first ground for conviction

is concerned, I consider that there were good reasons
for the magistrate accepting the evidence of Scholtz
as truthful and accurate. The appellant gave evidence
on oath and he told a very different story. In brief
his evidence was that on that particular morning he had
been seeking employment elsewhere and was walking along
Peter Brown Avenue on his return. He admitted that he
was at that point where he was subsequently arrested and
he says that nothing untoward was taking place. There
were some children on each side of the road but he saw

no stone throwing. He saw no large lorry on the scene

but/

11.

but a small Dyna lorry (or "bakkie" as he called it) arrived and stopped there. The driver and other occu-pants of this vehicle alighted and went to one side of the road. They spoke to the children standing there. He remained and watched simply out of curiosity. Sudden-ly he heard shots being fired and this caused him to run to the flat where he was found by Scholtz. He denied the presence of this large black lorry, denied that he attemp-ted to set anything alight or that there were a large crowd. of people in the road at the time, and finally he denied that he was under the bed when arrested by Scholtz. He said that he was simply sitting on a bed in that room.

One only has to read his account to appreciate

its gross improbability. Understandably, when

cross-examined/

12.

cross-examined on these improbabilities, he was unable
to furnish anything that could be regarded as a satis-factory answer. For instance, he was unable to say why he should have run away without first seeing whence the shots were being fired and at whom. He indeed was not able to explain why the shots were fired at all. On his account of what happened there was no need whatever for any policeman to stop let alone take such drastic action. His statement that he was on the bed, to my mind, was clearly a false answer: one that he had to give, because if he were to acknowledge that he was under the bed, he would have to explain why there was any cause for
him to hide.

Mr Albertus, in dealing with the appellant's

evidence, was constrained to concede that he had told

less/

13. less than the truth but submitted that this ought to

be overlooked and that his evidence that he was inno-
cently walking down the street ought to be accepted.
To my mind the evidence of the appellant, which falls
to be rejected as false, goes to the heart of the whole
matter and if it is looked at in relation to the reliable
evidence of Scholtz, the conclusion to be drawn is that
Scholtz's account is accurate and that of the appellant
is false. These two considerations, jointly, justify
the conviction and, to my mind, as was pointed out in
the court of first appeal, there is therefore no need to
consider whether the magistrate was correct in deciding
at the end of the trial-within-a-trial, that his statement
had been voluntarily made.

As to sentence, it was submitted that the

magistrate/
14. magistrate had misdirected himself in two or perhaps

three respects. Firstly, it was said that he erred in

finding that the appellant was a "ringleader". Whether
or not this is the most accurate term to apply to him,
it is manifestly clear from the evidence of Scholtz, to
which I'have refërred, that the appellant played a leading
role in encouraging and rallying those who were involved
in what amounted to large scale rioting. Secondly, sub-
mitted as a misdirection, is the proposition that the
magistrate treated the appellant as an adult simply be-
cause he had left school, and had fathered a child at
the youthful age of 15 years. But if one examines the
evidence of the magistrate, it will be seen that he acknow-

ledged that he was dealing with a young person', in his own

words/
15. words "'n opvallende jong persoon", but with good reason

regarded him as a young person living the life of an
adult in certain important respects and certainly one
who, on the face of it, was more mature than other young
people of his age. In taking these factors into account
pointing to maturity, to my mind the magistrate cannot
really be faulted. Finally, it was submitted that he
misdirected himself in holding that the public interest
ought to prevail against, as it is put in the Heads of
Argument, "the private interest of the appellant." The
magistrate certainly placed emphasis on the public in-
terest, but, on my reading of his remarks on sentence,
he was certainly also mindful of the personal
circumstances relating to the appellant, notably the

fact/

16.

fact that he was a first offender. That the public

interest in this particular case is a very important. consideration is really self-evident. The violence in this particular case involved extensive and sus-tained disruption of the public order. It involved, as I read the record, actual damage to motor vehicles caused by stone-throwing, and it, of course, also in-volved the potential danger to life and limb. But for the intervention of warrant-officer Scholtz, a vehicle,

valued according to the evidence at about R60 000,00, would have been destroyed and,no doubt, further damage caused.
In the course of his submissions on sentence

counsel referred us to a recent decision of this Divi-

sion/
17. sion and quite rightly pointed out that public violence is a protean crime. It can vary from an isolated inci-dent to a large scale disruption of the public order. The facts in that case, as summarised by counsel, satis-fies me that it is not really in point and indeed, as one knows, each case of sentencing depends on its own particular facts.
In this case the sentence was a severe one, but, in the absence of any misdirection - and I hold there was none - I do not think it can be said that the sentence is disturbingly inappropriate, and therefore that the magistrate failed to exercise a judicial dis-cretion in imposing it. I would therefore, dismiss the

appeal/
18. appeal against the conviction and sentence.

RABIE ACJ - I agree
JANSEN JA - I agree
RABIE ACJ - It is so ordered

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