About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 84
|
|
Masebeni and Another v S (A266/20) [2021] ZAWCHC 84 (5 May 2021)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
Case
No: A266/20
In
the matter
between:
THABO
MASEBENI
First
Appellant
THOBELA
PUKWANA
Second
Appellant
And
THE
STATE
Respondent
Bench: Samela, J and Lekhuleni,
AJ.
Heard: On the papers on 23 April
2021
Delivered: 05 May 2021
This judgment was handed down
electronically by circulation to the parties' representatives via
email and released to SAFLII. The
date and time for hand-down is
deemed to be 05 May 2021 at 10h00
JUDGMENT
LEKHULENI
AJ
INTRODUCTION
[1]
This matter came before us as an appeal against conviction only. The
two appellants
were arraigned in the Magistrates Court, Vredenburg on
a charge of assault with intent to do grievous bodily harm. The
appellants
were legally represented throughout the trial. They
pleaded not guilty to the charge however despite their plea, they
were convicted
by the trial court on 27 July 2020 and subsequently
sentenced on the 02 September 2020 to a fine of R2000 or 24 months’
imprisonment.
[2]
Aggrieved by this result and immediately upon sentence, the
appellants through their
legal representative applied for leave to
appeal against their conviction in terms of section 309B(1)(a) of the
Criminal Procedure
Act 51 of 1977 (“
the CPA”
) and
their application was duly granted by the magistrate. The appellants’
grounds of appeal can succinctly be summarized
as follows:
2.1
In the main the appellants contend that the Magistrate erred in
finding that the State proved
the case against them beyond any
reasonable doubt;
2.2
The Magistrate erred in finding that the complainant was a credible
witness;
2.3
The trial court erred in not applying the cautionary rule with regard
to the evidence of
a single witness;
2.4
The magistrate erred in accepting the testimony of the complainant,
and a single witness
notwithstanding that there were material
differences in his testimony during his evidence in chief and during
cross-examination;
2.5
The trial court erred in finding that the contradictions between the
testimony of the complainant
and that of his brother – Elliot
Ncokazi (witness for the appellants) were not material and did not
provide the necessary
attention to such testimony;
2.6
The magistrate erred in finding that the version of both appellants
cannot be reasonably
possibly true and that the evidence of both
appellants should be rejected as false without any reasonable doubt.
SUMMARY
OF EVIDENCE LED AT THE TRIAL
[3]
This appeal is based mainly on the facts and it is instructive to
briefly give a summary
of the relevant evidence adduced at the trial.
The State presented evidence of two witnesses and also handed in a
J88 medical report
as well as the clinical records (file notes), the
contents of which were undisputed. The two appellants testified and
called a
witness in support of their defence. The evidence of the
complainant was to the effect that on 30 June 2018 and at around
07h00
and 08h00, he travelled with the second appellant from Strand
to Saldanha to attend a braai. The braai took place at Thotho
Sambuka’s
place in Laaiplek near Saldanha. The second appellant
who is the complainant’s cousin drove the parties in his
vehicle to
Saldanha. The parties arrived in Saldanha between
11h00 and 12h00 midday. The complainant’s brother Elliot
Ncokazi
and the first appellant were also in attendance at Thotho’s
place. It was the complainant’s evidence that they drank
alcohol and had fun at the braai. He drank approximately seven beers
and a lot of whiskey.
[4]
At approximately 20h30 that evening, the complainant and the two
appellants left Saldanha
in the second appellant’s vehicle with
the intention of returning to their respective residences in Strand.
The complainant
testified that the first appellant with whom the
complainant apparently worked with drove the vehicle. The reason the
first appellant
drove the vehicle was because the second appellant
was too drunk to drive. The second appellant was sitting on the left
passenger
seat. According to the complainant, he was sitting at the
back seat.
[5]
After travelling a distance of about one and half kilometres from
Saldanha, the first
appellant pulled over the vehicle to the side of
the road. The two appellants proceeded to exit the vehicle and
instructed the
complainant to get out of the car. The complainant
refused to get out of the car as he told them that he did not want to
relieve
himself. The second appellant told him to get out of the car
so that they can take what they wanted from the complainant and they
will leave him alone. The second appellant also told the complainant
that they wanted to get rich. The complainant persistently
refused to
get out of the car and the second appellant pulled him out of the car
by grabbing the complainant’s legs. At that
time, the first
appellant helped the second appellant by assaulting the complainant
to get out of the vehicle. The first appellant
opened the window of
the door behind the driver’s seat and assaulted the
complainant. While the second appellant pulled him,
the complainant’s
shoes were removed. This happened at the time the second appellant
was pulling the complainant out of the
vehicle. The complainant
testified that the first appellant assaulted him on his face as the
two appellants were dragging him out
of the vehicle. As a result of
the assault, the complainant testified that his eyes were red and his
face was swollen.
[6]
After the complainant’s shoes were removed during the strife,
the two appellants
pulled the complainant by his trouser until the
trouser was out or removed from his body. The two appellants
eventually managed
to pull him out of the vehicle. While he was
outside he sat on his buttocks in a lying position and the first
appellant grabbed
the complainant by his arms and caused him to lay
down. The second appellant pulled the complainant’s underwear
and took
out a knife. The knife was about 10 centimetres long
excluding the blade. The second appellant pulled the complainant’s
underwear
and eventually managed to get hold of the complainant’s
penis. The second appellant got the penis out of complainant’s
underwear and cut it with the knife. The complainant testified that
the penis was almost cut off and only a small piece was left.
The cut
was deep such that the doctor had to make use of eight medical
stiches to treat the wound.
[7]
Whilst on the ground, he kicked the second appellant and the latter
fell and he managed
to get up and ran towards the side of the road
and jumped over the fence which was next to the road. The two
appellants chased
him but they could not jump over the fence. He went
to a farm nearby during that night and slept outside the farm. Later
in the
early morning he was assisted by a certain white man in the
farm who called the police.
[8]
During cross examination, he confirmed that the second appellant
fetched him that
morning from Thotho’s place and took him back
to Strand where he lives. He later went to Somerset Hospital to
receive medical
treatment.
[9]
The doctor who treated the complainant Dr Martha Bronkhorst
(“Dr
Bronkhorst”)
testified that she examined the complainant
and that he sustained a single laceration to the left side of his
penis. The cut was
through the skin and not cutting into the deep
tissue. The rest of the genital area was not harmed. There was only a
laceration
at the base of the shaft of the penis. Her conclusion was
that the injury was in keeping with injury with a sharp object.
[10]
During cross-examination, her evidence was that she did not observe
any other injuries other than the
cut on the complainant’s
penis. She admitted that the injury on the complainant’s penis
could have been caused by any
sharp object other than a knife.
[11]
The appellants’ version was that on 30 June 2018 the second
appellant and the complainant
went to visit Thoto in Laaiplek
Saldanha. The second appellant asked permission from the
complainant’s wife to travel with
the complainant to Saldanha.
They left Strand at 08h00 in the morning and arrived at Saldanha
around 11h00. Upon arrival at Thoto’s
place, they then went to
fetch the first appellant at his place in Laaiplek. After fetching
the first appellant, they went back
to the Thoto’s house and
they had a braai and drank alcohol. They both testified that the
complainant drank a lot of alcohol.
The complainant drank whiskey and
poured too much on his glass. He did not dilute the said alcohol and
his brother Thembalethu
warned him not to drink alcohol in such a
manner.
[12]
They left Thoto’s house around 21h00 that night to return home.
When they left Thoto’s
house, the complainant was so drunk in
such a way that they helped him to get into the vehicle. The
complainant was sitting on
the front passenger seat and the second
appellant drove the vehicle. Whilst they were driving and at the turn
off between Hopefield
and Cape Town, the second appellant pulled off
the road as he was feeling drunk and asked the first appellant to
drive the vehicle.
From there, the second appellant went to sleep at
the back seat of the vehicle and first appellant replaced him as a
driver. After
they had driven a distance from where the first
appellant took over, the complainant woke up and told the second
appellant that
he dreamed that second appellant wanted to kill him.
The second appellant thought that the complainant was making a joke
and even
asked the complainant why he would want to kill him. The
complainant then asked who was driving the vehicle. The complainant
grabbed
the first appellant who was driving the car with his throat
and the vehicle veered off the road. They continued driving and the
complainant again pulled the steering wheel and they decided to
remove the complainant from the front seat to the back seat to
avoid
him disturbing the driver. They stopped the vehicle and told the
complainant to get out of the car but the complainant refused.
They
decided to pull him out of the car. They grabbed the complainant and
tried to put him in the back seat of the car and the
complainant
resisted and even kicked them. The second appellant grabbed the
complainant by the pants and the complainant’s
pants got off
and the complainant ran to the side of the road and jumped over a
fence and disappeared into the dark. They called
him to come back and
he did not answer. They called Thoto and the latter did not respond
and they then decided to go fetch the
complainant’s wife as she
knew that the complainant was with them. They went to Strand and
found complainant’s wife
who told them that the complainant
called and told her that she was at the police station and that he
did not have clothing with
him. It was around 05h00 in the morning at
that time. She gave them clean clothing and they went with another
friend to collect
the complainant from the police station. Indeed,
they found the complainant and brought him back home in Strand.
[13]
The appellants called a witness, Mr Elliot Ncokazi
(“Elliot”)
to corroborate their evidence. He is the brother of the complainant.
He confirmed that he was also at the braai with the appellants
and
the complainant on the day in question. He confirmed that the
complainant was heavily drank on that day so much so that he
was
shivering. He even reprimanded him that his manner of drinking was
unacceptable. The complainant drank whiskey and he
never
diluted it with anything as other people would use water. He drank it
clean as it was. He testified that he assisted them
by holding the
complainant on both sides when he was taken into the vehicle. The
complainant refused to take the back seat and
he was assisted to seat
in the front passenger seat.
SUBMISSIONS
BY THE PARTIES IN THIS COURT
[14]
In order to avoid the spike of Covid-19 infections and with the
consent of the parties, this
court invoked the provisions of
section
19(a)
of the
Superior Courts Act 10 of 2013
to dispose of the appeal
on the written submissions of the parties without the hearing of the
oral argument.
[15]
Mr Bosman for the appellant argued that the complainant in this
matter was a single witness.
In these circumstances, before
convicting the appellants, the magistrate had to be satisfied that
his evidence was clear and satisfactory
in every material respect.
Counsel contended that the complainant was untruthful regarding the
seriousness and the extent of his
injuries. It was also contended on
behalf of the appellants that the complainant failed to provide any
satisfactory explanation
regarding his willingness to travel to
Strand with the second appellant after such traumatic experience. It
was asserted on behalf
of the appellants that the magistrate simply
ignored the aforementioned objective evidence and failed to properly
consider the
credibility of the complainant. In light thereof, it was
argued that the trial court erred in coming to the conclusion that
the
state succeeded in proving the guilt of the accused beyond
reasonable doubt.
[16]
Mr Gontsana who appeared for the respondent conceded that the court a
quo erred in accepting
that the state discharged its onus of proving
the charge against the appellants beyond reasonable doubt. He
contended that the
contradictions in the State’s case were so
material that it was wrong for the trial court to ignore them.
Counsel conceded
that the trial court was wrong in convicting the
accused.
APPLICABLE
LEGAL PRINCIPLES AND ANALYSIS
[17]
This appeal is based mainly on facts and as alluded to above in the
main, the appellants’
grounds of appeal can be summed as
follows: first, they both argued that there were material
contradictions in the evidence of
the state and the court should have
applied the cautionary rule more especially in that the complainant
was a single witness. Second,
the appellants contended that the State
has failed to pass the well-established threshold of the standard of
proof in criminal
cases, that of proving the guilt of the accused
beyond reasonable doubt.
[18]
It is trite law that a court of appeal should be slow to interfere
with the findings of fact
of the trial court in the absence of
material misdirection - See
R
v Dhlumayo and Another
1948 (2) SA 677
(A) at 705-706). An appeal court’s powers to
interfere on appeal with the findings of fact of a trial court are
limited -
See
S v
Francis
1991 (1) SACR
198
(A) at 204E. In the absence of a demonstrable and material
misdirection by the trial court, its findings of fact are presumed to
be correct and will only be disregarded if the recorded evidence
shows them to be clearly wrong. When an appeal is lodged against
the
trial court’s findings of fact, the appeal court should take
into account the fact that the trial court was in a more
favourable
position than itself to form a judgment because it was able to
observe the witnesses during their questioning and was
absorbed in
the atmosphere of the trial – See
S
v Monyane and Others
2008
(1) SACR 543
(SCA).
[19]
The basic principles of criminal law and the law of evidence that
applies in this matter are
trite. The first principle is that in
criminal proceedings, the State bears the onus to prove the accused’s
guilt beyond
reasonable doubt – See
S v Mbuli
2003 (1)
SACR 97
(SCA) at 110D-F;
S v Selebi
2012 (1) SA 487
(SCA);
S
v Jackson
1998 (1) SACR 470
(SCA) and
S v Schackell
2001
(4) SACR 279
(SCA). The accused’s version cannot be rejected
only on the basis that it is improbable, but only once the trial
court has
found, on credible evidence, that the explanation is false
beyond a reasonable doubt – See
S v
2000 (1) SACR 453
(SCA) at 455B. The corollary is that, if the accused’s version
is reasonably possibly true, the accused is entitled to an
acquittal.
Equally trite is that the appellant’s conviction can only be
sustained if, after consideration of all the evidence,
his version of
events is found to be false – See
S v Sithole and Others
1999 (1) SACR 585
at 590.
[20]
It follows from the requirement that the State must prove an accused
persons’ guilt beyond
reasonable doubt that the onus rests on
it to prove every element of the crime alleged, including that the
accused is the perpetrator
of the crime, that he or she had the
required intention, that the crime in question was committed and that
the act in question
was unlawful – See
S
v Mdiniso
[2010]
ZAECGHC 18 (30 March 2010) at paras 12 and 13
.
No onus rests on the accused to prove his or her innocence –
See
S v Combrinck
2012 (1) SACR 93
(SCA) at para 15.
[21]
In this case, the complainant was a single witness.
The
upshot thereof is that before convicting the appellants, the trial
court had to be satisfied that the complainant’s
evidence was
clear and satisfactorily in every material respect. It is trite law
that a court must be cautious when considering
the
reliability of evidence provided by a single witness –
See
Stevens
v S
2005
(1) All SA 1
(SCA).
On the other hand, in terms of
section 208
of the CPA, an accused can be convicted of any offence on
the single evidence of a competent witness. It is, however, a
well-established
judicial principle that the evidence of a single
witness should be approached with caution, his or her merits as a
witness being
weighed against factors which militate against his or
her credibility. In
S v Artman and Another
1968 (3) SA
339(SCA)
, Holmes JA, as he then was, observed that the evidence of a
single witness should be clear and satisfactory in all material
aspects.
The exercise of caution however must not be allowed to
displace the exercise of common sense.
[22]
From the summary of evidence discussed above, it is evident that two
mutual destructive versions
were submitted before the trial court in
the form of testimony by the complainant and that of the appellants
on which the Court
a quo based its conviction.
In
S
v
Janse
van
Rensburg
2009
(2) SACR 216
(C) at para 8 the court stated as follows:
“
Logic
dictates that, where there are two conflicting versions or two
mutually destructive stories, both cannot be true. Only one
can be
true. Consequently, the other must be false. However, the dictates of
logic do not displace the standard of proof required
either in civil
or criminal matters. In order to determine the objective truth of the
one version and the falsity of the other,
it is important to consider
not only the credibility of the witnesses, but also the reliability
of such 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 mustered the requisite
threshold - in this case
proof beyond reasonable doubt –
(See:
S v Saban
en 'n Ander
1992
(1) SACR 199
(A) at 203j to 204a-b;
S
v Van der Meyden
1999
(1) SACR 447
(W) at 449g-j - 450a-b and
S v
Trainor 2003 (1)
SACR 35 (SCA)
at para 9).”
[23]
It is trite that in assessing two conflicting versions all the
evidence should be considered
and none should be ignored – See
S
v
Langeberg
[2017]
ZAFSHC 49
(16 March 2017) (Unreported).
In S
v
M
2006
(1) SACR 135
(SCA)
at para 189
,
Cameron
JA, as he then was, succinctly stated that the proper approach to
adopt is as follows:
“
The point
is that the totality of evidence must be measured, not in isolation,
but by assessing properly whether in the
light of the inherent
strengths, weaknesses, probabilities and improbabilities on both
sides the balance weighs so heavily in favour
of the state that any
reasonable doubt about the accused's guilt is excluded.”
[24]
In this case, I am of the view that the evidence of the State was
riddled with a lot of material
contradictions and inconsistencies on
the alleged assault and how it happened. Furthermore, the complainant
was not frank, honest
and candid with the court. He told the court
that when he boarded the vehicle, he was seated at the backseat of
the car. Both appellants
testified that the appellant was sitting in
the front passenger seat. The complainant’s brother Mr Ncokazi
who came to testify
for the defence told the court that indeed the
complainant was sitting in the front passenger seat when they left
Saldanha. He
assisted the complainant to climb into the vehicle as
the latter was drunk. As explained above, the defence witness Mr
Ncokazi
is the brother of the complainant. In my view, he had no
reason whatsoever to fabricate evidence against the complainant.
Furthermore,
the complainant was untruthful regarding his level of
intoxication. According to him, he was drunk but he does not remember
seeing
the appellant and his brother Mr Ncokazi taking him into the
vehicle. He insisted that he was drunk but he walked to the car.
[25]
The evidence of Mr Ncokazi whom I consider an independent witness in
this case cannot be faulted.
His evidence was forthright and he was
frank and candid with the court. The record reveals that when he was
asked by the court
how the complainant climbed the vehicle, he
testified that he physically assisted the complainant from the house
to the car which
was parked a distance away from the house. He also
testified that the complainant was so drunk and shivering. They held
the complainant
on both sides and the complainant wanted to occupy
the front seat. He testified that as the complainant’s brother,
he told
the appellants to allow the complainant to seat on the front
passenger seat rather than at the back seat. In my view this
version is consistent with the appellant’s version at the trial
court. In my opinion, Mr Ncokazi corroborated the evidence
of the
appellants in all material respect.
[26]
More importantly, on 19 November 2019 when the cross-examination of
the complainant commenced,
the complainant was asked whether
Thembalethu, a potential witness who was in court that day during the
hearing of the matter and
who was told to seat outside as the accused
wanted to call him as a witness, attended the braai with them and the
complainant denied
and told the court that Thembalethu was not at the
braai. He vehemently denied that this witness was in attendance even
when this
question was followed up in cross-examination. When cross
examination resumed on the 05 December 2019 and the same question was
put to him he confirmed that this witness was present at the braai
and that it was for the first time for him to see this witness
on the
said day.
[27]
The complainant was also untruthful regarding the seriousness and
extent of his injuries. In
his testimony, he informed the court that
the cut on his penis was very serious and according to him, the penis
was almost dismembered.
The complainant testified in chief and in
cross-examination that only a small piece was left. He also alluded
to the fact that
he received eight stiches when he attended at
Somerset Hospital. In fact, he testified that he was brutally
assaulted in
the face by the appellants. As a result of the assault,
his face was swollen and his eyes were red. However, Dr Bronkhorst
who
examined him contradicted his evidence. She informed the court
that the wound on the complainant’s penis was superficial and
the complainant did not sustain any facial injuries. According to the
evidence of Dr Bronkhorst, the wound was not serious. She
also told
the court that if there were any other injuries that the complainant
suffered, she would have recorded them in her medical
report. She did
not observe any other injuries sustained by the complainant.
[28]
In addition, the complainant testified that he jumped over one fence
from the place where the
alleged assault occurred but later in
cross-examination, the complainant contradicted himself and stated
that he cannot remember
how many fences he crossed before he was
collected by Hopefield Police.
[29]
I also find the version of the complainant strange, unusual and
surprising. Notwithstanding the
fact that the appellants wanted to
cut off his penis for
muti
purposes as he wanted the court
a
quo
to believe, the complainant was willing to travel with the
first appellant the following day in the morning back to Strand. It
should
be borne in mind that his evidence was that he ran away from
the appellants the previous evening as they wanted to cut off his
penis. He spent a night in the cold. It is very strange that some few
hours thereafter, he was willing to travel with the second
appellant
from Saldanha to Strand. He could not provide any satisfactory
explanation of his willingness to travel to Strand with
the first
appellant after such an alleged traumatic experience. In my
judgement, this anomaly and the contradictions highlighted
above were
so material so much so that they affected the overall credibility of
the complainant.
[30]
It is the duty of the trier of fact in criminal matters to weigh up
all the elements of the evidence
which point to the guilt of the
accused against all those which are indicative of his innocence,
taking proper account of inherent
strengths and weaknesses,
probabilities and improbabilities on both sides. Thereafter, the
court must decide whether the balance
weighs so heavily in favour of
the State so as to exclude any reasonable doubt about the accused’s
guilt – See
S v Chabalala
2003 (1) SACR 134
(SCA) para
15.). Unfortunately, the trial court’s approach in evaluating
the evidence before it in this case was incorrect.
The record does
not show that the trial court considered the contradictions in the
State’s case when it evaluated the evidence.
[31]
In my view, the trial court adopted a skewed approach in analysing
the evidence in that it solely
concentrated on the short comings of
the defence evidence. The court did not extend the same kindness and
generosity to the evidence
of the appellants. This approach was in
conflict with the well settled principle of our law that evidence
must be looked at holistically
– See
S v Van der Meyden
1999
(1) SA 447
(w) at 448F-I. In my view, the presiding magistrate failed
to heed this judicial injunction and therefore committed a material
misdirection which demands interference by this court.
[32]
The version that was presented by the appellants was in my view
plausible and reasonably possibly
true. They travelled with the
complainant to Laaiplek, Saldanah where they had a braai and drank
alcohol. In the evening when they
returned home, the complainant who
was seated in the front seat grabbed the first appellant with his
throat. They stopped and decided
to take the complainant from the
front passenger seat to the back seat so that he does not disturb the
first appellant as he was
driving. He refused to exit the car and
they dragged him out of the vehicle. He came out and escape into the
wild. He jumped the
fence and in all probabilities got hurt. The
doctor confirmed that the injury that the complainant suffered could
have been caused
by other objects other than a knife. Thus, a fence
wire cannot be excluded.
[33]
In the light of the evidence presented to the trial court, I am
satisfied that on the conspectus
of the evidence, this court is
entitled to interfere with the factual findings made by the trial
court. The magistrate erred in
finding that the State proved beyond
reasonable doubt that the appellants’ assaulted the complainant
as alleged or at all.
I find that based on the facts accepted by the
trial court, the version of the appellants is reasonably possibly
true.
[34]
Having made the aforesaid findings, it follows that the sentence
meted by the court
a quo
on the appellants has to be set
aside.
[35]
In the result, I would propose the following order:
35.1
The appeal is upheld and the conviction and sentence are set aside.
LEKHULENI AJ
ACTING JUDGE OF
THE HIGH COURT
I agree and it is
so ordered:
SAMELA J
JUDGE OF THE HIGH
COURT