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[2014] ZASCA 47
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Pistorius v S (253/2013) [2014] ZASCA 47; 2014 (2) SACR 314 (SCA) (1 April 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 253/2013
Reportable
In
the matter between
JOHAN
IZAK FREDERICK
PISTORIUS
.........................................................
APPELLANT
and
THE
STATE
........................................................................................................
RESPONDENT
Neutral
citation:
Pistorius v The State
(253/13)
[2014] ZASCA 47
(01 April
2014)
Coram:
Bosielo, Shongwe and Leach JJA
Heard:
13 March 2014
Delivered:
01 April 2014
Summary
:
Criminal appeal – conviction – the appellant convicted of
assault with intent to cause grievous bodily harm and
crimen
injuria
– trial court relied on
the evidence of a single witness – proper judicial approach –
whether the court treated
the evidence with caution – whether
the court below erred in finding that the guilt of the appellant was
proved beyond reasonable
doubt.
ORDER
On
appeal from:
The North Gauteng High
Court, Pretoria (Erasmus and Rauling JJ sitting as a court of
appeal):
The
appeal is dismissed.
JUDGMENT
Bosielo
JA (Shongwe and Leach JJA concurring):
[1]
In the afternoon of 26 December 2006, the appellant met with the
complainant on his farm. The appellant confronted the complainant
and
asked him what he was doing on the farm whereupon the complainant
answered that he was a security officer. He then demanded
his
identification documents and when the complainant failed to produce
these, he ordered him to leave the farm. The complainant
exited the
farm but later the same day laid a complaint against the appellant
with the police at Vaal Police Station.
[2]
Arising from these facts, the appellant was tried and convicted in
the magistrates’ court, Standerton, on charges of assault
with
intent to do grievous bodily harm and
crimen
injuria
. The two counts were taken
together for the purpose of sentencing and appellant was sentenced to
a fine of R5000.00 or twelve months’
imprisonment, half of
which was suspended on suitable conditions. An appeal followed by an
application for leave to appeal to this
court failed in the court
below. This appeal is with special leave of this court
.
The appeal is against conviction only.
[3]
The following facts appear to be common cause, or at least not in
dispute. The appellant was accompanied by two of his friends,
Cronje
and Strydom, driving on his farm on the day in question. Two of
Strydom’s children were sitting at the back of his
vehicle. As
it was the holiday period, he did not expect the complainant or any
other person to be on the farm. On seeing the complainant,
he stopped
his vehicle and interrogated him as to the reason for his presence on
his farm. The complainant explained that he was
a security officer.
He did not believe the complainant as the construction company that
was working on his farm had closed for
the holidays. He demanded his
identification and when the complainant failed to produce it, he
ordered him to leave.
[4]
The State called two witnesses, the complainant and Dr Nyembe, who
treated him on 27 December 2007.
[5]
The appellant testified that he was employed by a security company
called Vaal Rand Security, which was contracted by Murray
&
Roberts to undertake security work on the appellant’s farm
where they were laying a large pipeline. On this day, he
had just
arrived on the farm where he relieved his colleague, one Godfrey. One
of his duties was to patrol the farm as he had to
secure machinery
belonging to Murray & Roberts. Whilst walking on the farm he met
with the appellant who confronted him and
asked him what he was doing
there as the contractors had closed for the holidays. When he
explained to him that he was executing
some security duties, the
appellant remarked that ‘die kaffer praat kak’. On being
asked how he felt about these words,
the complainant replied that he
felt that the appellant did not regard him as a human being.
[6]
At this stage, the appellant then alighted from his vehicle and
started to hit him with the butt of a rifle on his back.
When
he realised that he was being assaulted, he fled. The appellant
chased after him with his vehicle and bumped him several times,
causing him to fall to the ground. When he reached the gate, he
pressed him with his vehicle against the gate with his vehicle.
He
managed to jump over the gate when the appellant reversed his
vehicle. As he fled, he lost his bag, which, amongst other
belongings,
contained his mobile phone.
[7]
The complainant went to report the incident to the police at the Vaal
Police Station the same day. He subsequently consulted
with Dr
Nyembe. He testified that he was injured on his back and left arm.
Furthermore, he explained that he was swollen and had
open wounds for
which he was sutured and given some medication. He confirmed that he
received a J88 form from the police, which
he handed over to the
police officer after the doctor had completed it as well as a sick
note which he gave to his employers. He
did not know what the police
had done with the J88. He explained that he lost a copy of the
doctor’s sick note in a fire
when his house burnt down.
[8]
The complainant was subjected to a very lengthy and robust
cross-examination. Suffice it to say that except for a few instances
(which I will deal with later) he remained consistent and unshaken.
[9]
The state then called Dr Nyembe, the medical doctor who treated the
complainant. I hasten to state that his evidence was left
unchallenged. Essentially, Dr Nyembe confirmed that he is a qualified
medical doctor with three degrees and that he examined the
complainant on 27 December 2007. He described the injuries he
observed on the complainant as huge haematomas with severe or gross
oedema at several and multiple locations on the back. These locations
were at the level of the scapula of the right hand. Furthermore,
he
described a haematoma – a large collection of blood – at
the site of the injury.
[10]
Dr Nyembe testified further that he observed weals on the
complainant’s upper back at almost the level of the shoulder
but more medial. He described a weal as similar to when a person has
been dragged with his face or his naked flesh on the ground,
leaving
areas slightly open, others dark with blood, others completely closed
and swollen with the interstitial fluid. Importantly,
he elaborated
further that contusions are areas where a person has been struck by
some blunt force as opposed to a sharp object
like a knife.
[11]
Commenting on the possible weapons which could have caused the
injuries on the appellant, Dr Nyembe opined that it could be
a
knobkerrie or sjambok or a pipe or anything which will not perforate
or cause the skin to open. Although he was unable to state
with
precision what object was used to assault the complainant, he opined
that it was a blunt and not a sharp object.
[12]
Dr Nyembe remained firm and unshaken under cross-examination.
However, he conceded that it was difficult to determine the age
of
the injuries but insisted that a blunt object had been used. He
stated that from a medical point of view, these injuries were
serious
because a person who has sustained internal injuries of the nature
similar to these may suffer kidney failure, stroke or
a mini stroke.
He conceded that he did not make any note of open wounds in his
clinical notes. When asked pertinently if the complainant
had any
open wounds on his left arm, he stated that he never treated the
complainant’s arms. However, he qualified his response
by
stating that he cannot remember seeing wounds on the complainant’s
arm. He explained that this incident occurred almost
two years
previously. However, he conceded that if he had sutured the
complainant’s arms, he would have noted this on his
clinical
notes.
[13]
The appellant and his two witnesses testified. They told a different
story to that of the complainant. As the versions of the
appellant
and those of his witnesses are similar, I will give a general tenor
of their evidence. Although admitting that they met
the complainant
on the appellant’s farm in the afternoon of 26 December 2007
and that the appellant asked the complainant
what he wanted on his
farm, the appellant denied that he uttered the alleged words or
assaulted him in any manner whatsoever. The
appellant testified that
his conversation with the appellant was friendly. He only requested
him to leave his farm when he failed
to produce proof that he is a
security officer as he doubted his explanation. This is because he
was not dressed in uniform and
because he did not know the
complainant. However, he knew about the people working for the
contractors on his farm although he
did not know them personally. He
knew that the contractors had closed for the holidays and that all
the workers had left for that
reason. He did not expect to see the
complainant on his farm. He was never told that there would be people
on his farm to guard
the property of the contractors. He never made
any independent enquiries to establish whether the complainant was a
security officer.
He maintained that he never saw any property
belonging to the contractors on his farm.
[14]
Importantly, he denied bumping the complainant with his vehicle. His
version is that the complainant left the farm on his own.
When he
reached the gate, he jumped over it of his own volition. Whilst on
the other side of the gate, he was surprised to see
the complainant
dropping his bag and running away. Out of curiosity, Strydom went and
opened the bag to see what it contained.
He could find neither a
security uniform nor an identification card.
[15]
In cross-examination, the appellant maintained that as it was the
26
th
December, he did not expect to see any person on his farm. He
confronted the complainant to verify why he was on his farm because
normally at time of the year (Christmas) they experience instances of
stock theft. Out of caution they chase people whom they do
not know
off the farm. This is the reason why they chased the complainant
away. The appellant conceded that he never made any enquiries
to
verify if the complainant was in truth a security officer.
[16]
Both Strydom and Cronje testified as defence witnesses. As I
indicated earlier, except for admitting that the rifle in the
vehicle
was his, Strydom’s evidence is the same as that of the
appellant. The same holds true for Cronje except that he stated
that
when they met the complainant he did not see any injuries on him.
They both denied any alleged utterances of the words attributed
to
the appellant and any assault on the complainant.
[17]
The appellant’s counsel launched a two-pronged attack against
the judgment of the magistrate. The first leg is that the
evidence of
the complainant being a single witness, ought to be approached with
caution, particularly as he had contradicted himself,
and further
that his evidence is contradicted by Dr Nyembe. The magistrate erred
in not doing so, or so it was contended. Secondly,
that the
magistrate erred in rejecting the appellant’s version which was
fully corroborated by his two witnesses and in circumstances
where it
was never criticised. The contention was that, absent any criticism
the regional magistrate had no reason to reject it.
[18]
The appellant’s counsel made much of the fact that the
complainant testified that he had open wounds on his arm which
were
sutured by Dr Nyembe, whilst Dr Nyembe testified to the contrary. It
was argued further that the complainant lied when he
said that he
reported the incident to the police the same day (26 December 2006)
as the copy of the charge-sheet reflected the
CAS/CR/MAS/MR No as
01/01/07, the suggestion being that this is the official date on
which this case was registered by the police
for the first time. A
rather tentative attack was made against the complainant based on the
fact that although he testified that
he handed his J88 to the police,
it was never produced in court including a doctor’s note which
Dr Nyembe had given him for
his employers. Based on this it was
submitted that the state’s version fell far short of the
required standard of proof beyond
reasonable doubt on the count of
assault with intent to cause grievous bodily harm and that the
appellant should have been acquitted.
[19]
Regarding the count of
crimen injuria
,
counsel argued in the main that the appellant’s denial should
be accepted, more so that the complainant had proved himself
not to
be reliable as a single witness. In the alternative, counsel
submitted that even if it can be found that the appellant uttered
the
words complained of, the magistrate was wrong to find that they
amounted to
crimen injuria
as
the words on their own are not injurious and further that the
complainant never stated explicitly that he felt that his dignity
was
impaired, this being an essential element of the charge.
[20]
Although conceding that there were some inconsistencies in the
complainant’s version, read together with that of Dr Nyembe,
counsel for the state contended that these are not so material as to
affect the probative value of the complainant’s evidence;
more
so, if we take into account that the complainant testified four years
after the incident. Furthermore, counsel submitted that
the
complainant’s version was amply corroborated by Dr Nyembe,
whose evidence proved that the injuries he observed on the
complainant were consistent with the manner of attack as described to
him by the complainant. In conclusion, he contended that,
even if the
magistrate did not criticise the appellant and his witnesses, the
inherent probabilities of this case are over-whelming
in favour of
accepting the State’s version over that of the appellant.
[21]
On the count of
crimen injuria
,
counsel contended that the words allegedly uttered by the appellant
are notoriously known and accepted, given the painful history
of this
country, to be hurtful and injurious. He submitted that the response
by the complainant, that these words made him feel
as if he is not
human, articulate the deep hurt and humiliation felt by the
complainant.
[22]
Undeniably, the two versions contradict each other. It is trite that
the state bears the onus to prove the guilt of the appellant
beyond
reasonable doubt and that there is no duty on the appellant to
convince the court of the truthfulness of any explanation
which he
gives.
S v V
2000 (1) SACR 453
(SCA) at 455b.
[23]
After having carefully evaluated the evidence as a whole, including
the inherent probabilities, the magistrates delivered a
clear and
well-reasoned judgment. It is clear from the judgment that the
magistrate was alive to the important fact that the complainant
was a
single witness and importantly, that there is a contradiction between
his evidence and that of Dr Nyembe regarding the injuries
to his left
arm. However, the magistrate remarked, correctly so, that the
complainant could not be disbelieved solely due to this.
On the
contrary, the magistrate found that it would be unfair to criticise
the complainant on this as he was never confronted with
Dr Nyembe’s
report so that he could have had an opportunity to reply thereto or
even explain it.
[24]
The Constitutional Court stated the following about the importance of
cross-examination
in
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
2000 (1) SA
1
(CC) at para 61:
‘
The
institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it is
essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness’s
attention
to the fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume
that the unchallenged witness’s testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Brown
v Dunn
(1893) 6 R 67 (HL) and has been
adopted and consistently followed by our courts.
…
The
rule in
Browne v Dunn
is not merely one of professional practice but ‘is essential to
fair play and fair dealing with witnesses’. [See the
speech of
Lord Hershell in
Browne v Dunn
above]…
The
precise nature of the imputation should be made clear to the witness
so that it can be met and destroyed… particularly
where the
imputation relies upon inferences to be drawn from other evidence in
the proceedings. It should be made clear not only
that the evidence
is
to be
challenged but also
how
it is to be challenged. This is so because the witness must be given
an opportunity to deny the challenge, to call corroborative
evidence,
to qualify the evidence given by the witness or others and to explain
contradictions on which reliance is to be placed.’
[25]
Based on the salutary approach enunciated in and
Sarfu’s
case, I agree with the regional magistrate.
[26]
It is important to consider this fact against Dr Nyembe’s
evidence to the effect that he could not remember seeing the
wounds
on the complainant’s arm as he testified two years after the
event, implying that he might have forgotten. Given the
known fact
that doctors are generally busy, it is possible that Dr Nyembe saw
many patients during those two intervening years.
It is therefore
understandable that he might not remember this incident particularly
in the absence of the J88, which would have
contained the photographs
which could possibly have shed some light on the appellant’s
injuries. To my mind, the fact that
Dr Nyembe cannot recall the open
wounds on the complainant’s left arm does not necessarily mean
that the complainant is mendacious.
[27]
In any event it is trite that contradictions per se do not
necessarily lead to the rejection of a witness’ evidence.
It is
essential that proper weight be accorded to the number, nature,
importance and their bearing on the other evidence. We are
confronted
here with a single incident. In the light of the totality of the
evidence and Dr Nyembe’s explanation, which I
find to be
eminently reasonable, I do not regard this inconsistency as so
serious as to detract from the veracity and reliability
of the
complainant’s version.
S v Mkohle
1990 (1) SACR 95
(A) at 98E-H.
[28]
Importantly, the magistrate made positive credibility findings in
favour of the complainant despite the fact that he was a
single
witness. It is clear from his well-reasoned judgment that he was
aware of this fact. He evaluated his evidence cognisant
of the
warning expressed in
S v Sauls & another
1981 (3) SA 172
(A) at p180C-H where Diemont JA expounded the salutary approach to
the evidence of a single witness as follows:
‘
In
R v T
1958
(2) SA 676
(A) at 678 Ogilvie Thompson AJA said that the cautionary
remarks made in the 1932 case were equally applicable to s 256 of the
1955 Criminal Procedure Code, but that these remarks must not be
elevated to an absolute rule of law. Section 256 has now been
replaced by
s 208
of the
Criminal Procedure Act 51 of 1977
. This
section no longer refers to “the single evidence of any
competent and credible witness”; it provides merely that
“
an
accused may be convicted on the single evidence of any competent
witness”.
The
absence of the word “credible” is of no significance; the
single witness must still be credible, but there are,
as
Wigmore
points out, “indefinite degrees in this character we call
credibility”. (Wigmore on Evidence vol III para 2034 at 262.)
There is no rule of thumb, test or formula to apply when it comes to
a consideration of the credibility of the single witness (see
the
remarks of Rumpff JA in
S v Webber
1971 (3) SA 754
(A) at
758). The trial judge will weigh his evidence, will consider its
merits and demerits and, having done so, will decide whether
it is
trustworthy and whether, despite the fact that there are shortcomings
or defects or contradictions in the testimony, he is
satisfied that
the truth has been told. The cautionary rule referred to by De
Villiers JP in 1932 may be a guide to a right decision
but it does
not mean
“
that
the appeal must succeed if any criticism, however slender, of the
witnesses’ evidence were well founded”
(per
Schreiner JA in
R v Nhlapo
(AD 10 November 1952) quoted in
R
v Bellingham
1955 (2) SA 566
(A) at 569). It has been said more
than once that the exercise of caution must not be allowed to
displace the exercise of common
sense.
The
question then is not whether there were flaws in Lennox’s
evidence – it would be remarkable if there were not in
a
witness of this kind. The question is what weight, if any, must be
given to the many criticisms that were voiced by counsel in
argument.’
[29]
On the contrary, the magistrate found that the ‘accused version
and that of his witnesses is a made up story and is not
reasonably
possibly true…’.
[30]
It is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential
and slow
to interfere therewith unless it is convinced on a conspectus of the
evidence that the trial court was clearly wrong.
R
v Dhlumayo & another
1948 (2) SA
677
(A) at 706;
Kebana v S
2010
(1) All SA 310
(SCA) para 12. It can hardly be disputed that the
magistrate had advantages which we, as an appeal court, do not have
of having
seen, observed and heard the witnesses testifying in his
presence in court. As the saying goes he was steeped in the
atmosphere
of the trial. Absent any positive finding that he was
wrong,
this court
is not at liberty to interfere with his finding.
[31]
It is true that the magistrate did not specifically point to any
contradictions in the defence version. However, it is clear
that the
magistrate, in analysing and evaluating the evidence, considered the
inherent probabilities of the case. The magistrate
found it highly
improbable that the complainant, after being confronted about his
unwelcome presence on the farm and being ordered
to leave which he
did peacefully and without any altercation or fight, would, some few
hours thereafter, report at Vaal Police
Station to lay a charge
against the appellant. Moreover, at the time when he had serious
injuries to which Dr Nyembe testified.
This is inherently improbable,
in my view.
[32]
On the appellant’s version the only explanation for this would
be that another person had injured the complainant who
then falsely
decided to blame the appellant who had done no wrong to him. And it
becomes even more improbable if not plainly preposterous,
in the
light of the appellant’s version that he spoke with the
complainant in a pleasant and friendly manner that afternoon.
[33]
Another unanswered question is: if the appellant did not assault the
complainant, why did the complainant run even after he
had jumped
over the gate? The probabilities are strong that he had been
assaulted by the appellant and he still feared that this
unlawful
assault would continue
hence
he had to run for his own safety. It is settled law that it is
permissible for a court, in determining whether the accused’s
version is reasonably possibly true, to look at the probabilities.
S
v V
above.
[34]
It is correct that the appellant was corroborated by both Cronje and
Strydom. However, sight should not be lost of the fact
that both of
them are the appellant’s friends and they were having fun
together that day. In the circumstances, they can
hardly claim or be
seen to be impartial and unbiased witnesses.
[35]
Having had the benefit of reading the record, I cannot find any fault
with the reasoning and conclusion of the magistrate.
The
probabilities are consistent with the finding that when the appellant
and his friend accidentally and unexpectedly came across
the
complainant on his farm, they suspected him to be on the farm for
some criminal activities, became angry, confronted, insulted
and
assaulted him in the manner described by the complainant. This is so
because, according to the appellant, the complainant was
not supposed
to be on the farm. This is bolstered further by the fact that it
appears that during this time of the year, the appellant
normally has
problems with stock theft on his farm. This suspicion must have
weighed heavily with the appellant and his two friends.
[36]
Regarding the charge of
crimen injuria
,
given the above facts, I have no doubt that the appellant uttered the
words complained of. In direct response to a question about
how he
felt when this word was used, the complainant retorted: ‘I felt
as if I am not a human being’. This is exactly
what the
appellant intended to do, namely to dehumanise, denigrate and
humiliate the complainant. I find that the magistrate was
correct to
convict the appellant on this count as well.
[37]
It is a well-known fact that these words formed part of the
apartheid-era lexicon. They were used during the apartheid years
as
derogatory terms to insult, denigrate and degrade the African people
of this country. Similarly words like ‘boer’,
‘coolie’
and ‘bantu’, the word is both offensive and demeaning.
Its use during apartheid times brought
untold pain and suffering to
the majority of the people of this country. Suffice to say that
post-1994, we, as a nation, wounded
and scarred by apartheid,
embarked on an ambitious project to heal the wounds of the past and
create an egalitarian society where
all, irrespective of race,
colour, sex or creed would have their rights to equality and dignity
protected and promoted. Our Constitution
demands this. Undoubtedly,
utterances like these will have the effect of re-opening old wounds
and fanning racial tension and hostility.
[38]
It is most unfortunate and regrettable that the appellant’s
counsel attempted to defend the use of such a vile word.
It needs to
be stressed that in line with its ambitious and laudable national
project of national reconciliation, the government
has taken bold
steps to eradicate these obdurate vestiges of the odius apartheid
past. One of these steps is the promulgation of
the
Promotion of
Equality and Prevention of Unfair Discrimination Act 4 of 2000
, which
seeks, amongst other things, to prevent and prohibit hate speech.
This resolve to deal with this problem effectively is
bolstered by
the creation of specialised Equality Courts.
[39]
Suffice to say that, given the enormous efforts we have taken as a
nation over the past 20 years to reconcile with one another,
such
utterances have no place in the new South Africa with its vision of a
non-sexist and non-racist society founded on human dignity,
equality
and advancements of human rights and freedoms for all (s 1 of the
Constitution). Such utterances should be visited with
severe
sentences.
[40]
It follows that this appeal is devoid of any merits, and is therefore
dismissed.
L.O.
BOSIELO
JUDGE
OF APPEAL
Appearances:
For
Appellant : P A Van Wyk SC
Instructed
by:
Van Heerden Schoeman
Attorneys; Standerton
Symington
& De Kok, Bloemfontein
For
Respondent : J J Kotze
Instructed
by:
Director
Public Prosecutions; Pretoria
Director
Public Prosecutions, Bloemfontein