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[2014] ZASCA 59
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Ngobeni v S (741/13) [2014] ZASCA 59 (2 May 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 741/13
In
the matter between:
BIGBOY
CYRIL
NGOBENI
.............................................................................................
Appellant
and
THE
STATE
.....................................................................................
Respondent
Neutral
citation:
Ngobeni v S
(741/13)
[2014] ZASCA 59
(2 May 2014)
Coram:
Bosielo, Shongwe JJA and Mathopo AJA
Heard:
17 March 2014
Delivered:
2 May 2014
Summary:
Criminal appeal – self-defence –
road rage – two mutually destructive versions – proper
approach –
uncertainty in the medical report –
s186
of
the
Criminal Procedure Act 51 of 1977
– when to be invoked.
ORDER
On
appeal from:
North Gauteng High Court,
Pretoria (Bertelsmann J and Mavundla J sitting as court of appeal):
The appeal is upheld
and the conviction is set aside.
JUDGMENT
Shongwe
JA
[1]
This appeal originates from a conviction by the regional court
(Pretoria) which convicted the appellant of attempted murder
and
sentenced him to 4 years imprisonment in terms of s 276(1)
(i)
of the Criminal Procedure Act 51 of
1977 (the Act) on 11 June 2004. With the leave of the trial court,
the appellant appealed against
the conviction and sentence to the
North Gauteng High Court (Pretoria). That appeal was dismissed on 29
January 2007. The appeal
before us is with the leave of the court a
quo on 12 September 2007.
[2]
The factual background is that the complainant and the appellant were
driving their respective vehicles from Pretoria City Centre
towards
Atteridgeville. A road rage of some sort developed between them. It
appears, from the evidence that they overtook each
other on several
occasions until they reached Atteridgeville and parked at an Engen
petrol station. The complainant alighted from
his vehicle and
approached the appellant who was seated in his vehicle, to enquire
why the appellant drove in a manner dangerous
to other road users.
The complainant testified that the appellant said words to the effect
that ‘my son ek sal jou skiet’
to which he responded that
‘jy vat ʼn kans’ – that is when the complainant
turned and walked towards his
vehicle when he was shot at from
behind.
[3]
Although the appellant confirms what happened on the road, he avers
that at the Engen petrol station, the complainant together
with two
of his passengers approached him, forcefully opened the driver’s
side door and started assaulting him. He started
bleeding. He then
pulled his firearm and fired a shot in self-defence. He did not
realise that he had shot someone. Two other State
witnesses were
called and to a large extent corroborated the complainant’s
version. Furthermore a medical report (J88) was
handed in by consent
and the defence formally admitted the contents thereof. It clearly
indicates the entry wound as being on the
right back near the
buttocks of the complainant and the exit wound being on the right
front next to the groin.
[4]
Although there are some contradictions between the complainant’s
version and his witnesses these are minor and immaterial.
Mokaba who
was called by the State confirms that the complainant was shot on his
back – Mokaba says:
‘
ek
gevind dat hy was raak geskiet net hier agter’
This
objective piece of evidence taken together with that of the
complainant is sufficient to prove that the complainant was shot
at
the back. There are contradictions in the appellant’s version
as well and what was put to the witnesses differs from his
evidence.
[5]
It is common cause that the J88 indicates question marks under the
rubric ‘clinical findings’, showing the entry
and exit
wounds. It is argued by the appellant that the State or the court
should have called the doctor to clarify why he had
put the question
marks. The suggestion is that the doctor was not sure of whether
these were indeed entry and exit wounds. It is
trite that the State
bears the onus to prove beyond reasonable doubt that the appellant
committed the offence with the necessary
intention. The appellant
therefore argues that the failure to call the doctor is crucial more
so that the trial court found that
the medical evidence corroborates
the State’s version. The appellant relied on
S
v MM
2012 (2) SACR 18
(SCA) para 15 and
24. I agree that the doctor should have been called to explain these
question marks, as an expert. However, I
am of the view that the
failure to call the doctor is not fatal to the State’s case as
there is direct and corroborated evidence
of the complainant.
[6]
The court in
MM’
s
case was correct in the approach it took because in rape cases
penetration is a vital aspect of proving or disputing the offence.
It
is an important warning given by Wallis JA in
MM’s
case which came long after the judgment in this case, unfortunately.
In the present case there is direct evidence by the complainant
and
his witness Mokaba.
[7]
The appellant also pointed at some contradictions in the
complainant’s evidence in that he first said he heard five
shots
and later reduced the shots heard to two. This court must warn
itself from rejecting the evidence of the complainant simply because
he contradicted himself. Nestadt JA observed in
S
v Mkohle
1990 (1) SACR 95
(A) at 98E-F
that ‘contradictions per se do not lead to the rejection of a
witness’ evidence. As Nicholas J, as he
then was, observed in
S
v Oosthuizen
1982 (3) SA 571
(T) at
576B-C, they may simply be indicative of an error. And at 576G-H it
is stated that not every error made by the witness affects
his
credibility; in each case the trier of facts has to make an
evaluation; taking into account such matters as the nature of the
contradictions, their number and importance and their bearing on the
other parts of the witness’s evidence’. In the
present
case the trial as well as the court a quo did exactly that. It was
simply an honest mistake from an imperfect witness.
Therefore I
cannot agree with the appellant’s submission that the State
failed to prove its case beyond reasonable doubts.
[8]
The crucial aspect of this case is to be found in what the appellant
did when he was confronted by the three persons. He said
he was
assaulted by the complainant then he ‘drew a firearm and fired
a shot whilst they were standing by the door’.
To me this
suggests that when he fired a shot his life was not in danger as the
people ‘were standing by the door’,
apparently after they
had assaulted him. I concluded that it was not necessary to fire the
shot in the manner he did as his warding
off the attack was more
harmful than it was necessary and it was not the only way to avert
the attack. I am aware that one must
warn himself against being an
arm-chair critic in the coolness of the court-room after the fact,
however there must be a reasonable
relationship between the attack
and the defensive act.
[9]
The trial court preferred the State’s version, rightly so in my
view, to that of the appellants and rejected that of the
appellant as
highly improbable and therefore not reasonably possibly true. The
appellant raised the defence of self-defence or
private defence. On
the factual findings of the trial court, this court should be slow
and reluctant to interfere (see
R v
Dhlumayo & another
1948 (2) SA 677
(A) at 705) especially where there has been no misdirection on the
facts.
[10]
For the appellant to defend himself the unlawful attack must have
commenced or imminently threatening (
S v
Engelbrecht
2005 (2) SACR 41
(W) para
228). In the present case the appellant alleged that the complainant
and his passengers attacked him by slapping him on
the face –
but is unable to show any serious injuries save for a minor cut on
his mouth. The court a quo concluded that even
assuming that he was
attacked by the complainant and company - it is clear that the
appellant over-reacted and exceeded the bounds
of self-defence by a
very considerable margin. It is trite that self-defence should not be
out of proportion to the initial unlawful
attack. There is absolutely
no evidence that a warning shot was fired or that it was impossible
to fire such a warning shot. Instead
the complainant’s evidence
that the appellant responded by saying “my son ek sal jou
skiet” was never disputed
by the defence under
cross-examination.
[11]
It is trite that the onus rests on the State to prove beyond
reasonable doubt that an accused acted unlawfully and that he
realized or ought reasonably to have realized that he was exceeding
the bounds of self-defence. (
See S v
Motleleni
1976 (1) SA 403
(A);
S
v Goliath
1972 (3) SA 1
(A) at 11 and
S
v Ntuli
1975 (1) SA 429
(A) at 436). I
am unable to find any fault or misdirection by both the trial and
court a quo in their conclusions based on the
objective evidence
adduced by both the State and the defence. In my view the appellant
was correctly convicted therefore the appeal
against the conviction
must fail.
[12]
I now turn to deal with sentence. It is trite that an appeal court
may only interfere with the discretion of the trial court
where the
trial court misdirected itself when considering sentence.
Alternatively where it can be shown that the sentence imposed
is
shockingly and disturbingly inappropriate. In the present case the
trial as well as the court a quo took into consideration
the triad as
stated in the famous case of
S v
Zinn
(1969
(2) SA 537
(A) at 540H) as well as the surrounding circumstances.
[13]
It is clear that the tempers were high – both appellant and the
complainant were angry. It is not far-fetched to conclude
that the
appellant felt that he had been provoked by this ‘pesky
youngster’ – He expected the youngster to show
some
respect to an elder. If one considers this aspect one can conclude
that the trial and court a quo misdirected themselves in
considering
a custodial sentence. The trial court should have called for a
pre-sentence report in order to determine the background
of the
appellant in view of the fact that he was a first offender and of
advanced age. In view of the appellant’s age and
the fact that
a custodial sentence would not have the desired effect, a wholly
suspended sentence appears to be appropriate. However,
attempted
murder is a serious offence. The appellant must consider himself
lucky that the bullet did not hit the complainant higher
up on his
body - because that could have struck the complainant on his spine
and most probably caused more serious injuries or
death. Therefore a
suspended sentence would be an appropriate sentence.
[14]
I must say something about this case taking so long to reach
finality. It is said that the Registrar of the trial and court
a quo
delayed in the preparation of the record to be placed before the
appeal court. It is highly undesirable and unacceptable
to
inordinately delay the preparation of a record. This kind of delay
gives credence to the adage that justice delayed is justice
denied.
It must be avoided at all cost.
[15]
One more issue I wish to comment on is the test applied by the trial
court when granting leave to appeal. It said:
‘
I
think I am known for being not judge in my own case. So in principle
I really do not have a problem if an accused wishes to appeal
against
a sentence and conviction. So leave is granted’.
The
test applied in granting leave to appeal to the high court was
clearly incorrect. The test is whether there are reasonable prospects
of success on appeal. (See
R v Ngubane
1945 AD 185).
What the test of
reasonable prospects of success postulates is a dispassionate
decision, based on the facts and the law. The question
is whether a
reasonable person, adopting a different line of reasoning –
usually by attaching more weight to factors ignored
or downplayed in
the judgment, or by attaching less weight to factors accentuated in
the judgment, could come to a different conclusion.
That there is a
possibility of success, the fact that the case is arguable, or that
it is not a hopeless case, do not constitute
grounds for granting
leave to appeal. (See also
S v Smith
2012 (1) SACR 567
(SCA) para 7). In my view, had the trial court
applied the correct test, it would, in all probability have refused
leave.
[16]
In the result I would dismiss the appeal.
_______________________
J
B Z SHONGWE
JUDGE
OF APPEAL
BOSIELO
JA dissenting (Mathopo AJA concurring)
[17]
I have had the benefit of reading the judgment of my colleague
Shongwe JA. I regret that for reasons that follow hereunder,
I do not
agree with him.
[18]
To a great extent the background facts which led to this case have
been set out in the judgment of Shongwe JA. However, there
are some
salient facts which have either been downplayed or not recounted in
their correct perspective which I will refer to, to
clarify my
dissent.
[19]
The main difference I have with my colleague’s judgment
commences with how the critical events unfolded at the Engen
garage
when the two vehicles finally came to a standstill and whether in
those circumstances it can be found that the appellant
did not act in
self-defence as Shongwe JA did. As Shongwe JA correctly pointed out,
prior to this, the complainant and the appellant
had been jostling
for the road en route to Atteridgeville. It is clear from the
description of their manner of driving that they
were both angry and
reckless. It is common cause that en route to Atteridgeville they
drove past a police station before they stopped
at the Engen garage.
[20]
The complainant testified that upon arrival at the garage, he stopped
his vehicle, alighted and walked to the appellant who
was seated in
his vehicle. He asked him to open the driver’s door which he
did. He then confronted him about his manner of
driving whereupon the
appellant replied that ‘my son ek sal jou skiet’. He
replied that ‘jy vat `n kans’.
Predictably this set the
scene for the tragic event which then followed. The complainant’s
version is that he was not angry
when he spoke to the appellant. He
never threatened nor assaulted him. After speaking to the appellant
he walked peacefully to
his vehicle. There was no altercation. When
he was about to open his vehicle, he heard a gunshot and the next
thing he felt a bullet
entering his body. He then fled and was taken
to hospital later that night. He explained that the bullet entered
his body, from
behind and exited in front. He was hospitalised on 29
October 2002 and discharged the next day. At this stage, a medical
report
was accepted as ‘exhibit A’ by consent.
[21]
In his evidence-in-chief the complainant had stated that the
appellant fired five (5) shots. He changed this in cross-examination
to only two shots. The complainant maintained that he was alone when
he went to confront the appellant. Furthermore, he denied
that he was
in a fighting mood. His version is that he asked the appellant in a
calm manner why he was driving as he did. He vehemently
denied
assaulting the appellant in any manner.
[22]
It is common cause that after his release from hospital on 30 October
2002, the complainant left for Polokwane without reporting
the
incident to the police. He only reported it when he returned on 14
February 2003, some 4 months later. On being asked why he
failed to
report the incident much earlier he said that he thought that the
appellant would report it.
[23]
The State then called Mr Isaac Mokaba (Mokaba). To a large extent, he
corroborated the complainant. However, contrary to what
the
complainant stated, Mokaba testified that the appellant alighted from
his vehicle and further that both the complainant and
the appellant
were shouting at each other whilst outside the appellant’s
vehicle. Furthermore, he testified that when the
complainant
approached the appellant he was angry. Of importance, Mokaba
testified that the appellant pointed a firearm at him
when he
returned to the vehicle later. However, there is no evidence that he
laid any charge against the appellant for unlawfully
pointing at him
with the firearm.
[24]
Rivonia Mangena was the next state witness. Essentially her version
was similar to that of the complainant except in the following
respect. She testified that after the two spoke, the appellant
alighted from his vehicle. She further testified that when the
appellant shot the complainant, he was outside his vehicle. The State
then closed its case.
[25]
The appellant testified in his defence. He confirmed that there were
problems with the complainant whilst driving to Attridgeville
as
testified by the complainant. His version is that he ultimately
stopped at the Engen garage as one of his passengers wanted
to buy a
cold drink. Three men alighted from the vehicle which had been racing
with him earlier and approached him whilst he was
seated in his
vehicle. Two of them came to his side whilst the third one went to
the other side of the car. One of them pulled
his drivers’ door
open whilst the complainant started to assault him with fists and
kicks. He started to bleed and feared
for his life. He then drew his
firearm to defend himself. He fired one shot whereupon all three
fled. The next day he went to report
the incident to the police.
[26]
One Letlhogonolo Kgobe (Kgobe) testified for the defence. As his
evidence is similar to that of the appellant, there is no
need to
rehash it. Of importance is that he confirmed that the appellant was
punched and kicked by the complainant as a result
of which he bled,
and further that a shot was fired during that fracas. His version was
that the appellant was inside his vehicle
when the assault and
shooting took place.
[27]
It is trite that the State bears the onus to prove the guilt of the
accused beyond reasonable doubt. There is no obligation
on an accused
where the State bears the onus, to convince the court of the
truthfulness of any explanation which he or she may
tender. If his
version is reasonably possibly true he is entitled to be acquitted
even if his explanation might be improbable.
S
v V
2000 (1) SACR 453
(SCA) at 455a-b.
[28]
The State’s version must be evaluated against this salutary
test. The legal question for determination in this appeal
is whether
the state has proved the guilt of the appellant beyond reasonable
doubt.
[29]
It is common cause that a problem erupted between the appellant and
the complainant as they were driving that night from central
Pretoria
to Atteridgeville. It is not in dispute that they had engaged in some
kind of a racing match until they both stopped at
the Engen garage in
Atteridgeville. The reckless manner in which they drove suggests that
their tempers had flared. It required
only a small spark to explode
into a confrontation. This is where all the commonalities in their
versions end.
[30]
There were a number of contradictions which emerged from the
complainant himself. Furthermore, there are other material
contradictions
in the complainant’s evidence and that of his
witnesses on crucial aspects of the case. First, the complainant
denied that
he was angry when he confronted the appellant. His own
witness, Mokaba testified to the contrary. Secondly, the complainant
testified
that the appellant fired five shots. However, in
cross-examination he reduced these to two. Thirdly, the complainant
said that
he spoke in a friendly tone to the appellant whereas Mokaba
testified that the complainant and the appellant were screaming at
each other. The complainant testified that the appellant shot him
whilst still seated in his car but Mangena, his other witness
testified to the contrary.
[31]
I have gleaned the following unsatisfactory aspects from the
complainant’s version. He testified that as he was driving
along to Atteridgeville he realised that his life was in danger,
presumably from the appellant, yet he passed a police station
along
the way. Instead, he decided to stop at the Engen garage. If he was
in danger why pass a police station? Is the reason not
that he wanted
to confront the appellant? He claimed that he was the victim of an
unlawful and unsolicited attack and that he sustained
serious
injuries. Yet, upon being released from hospital on 30 October 2002,
he travelled to Polokwane without first reporting
the matter to the
police. He only returned and reported the matter in February 2003,
four months after the incident. On being asked
why the delay, he
responded that he thought that the appellant would report the
incident. This begs the question: why would the
appellant, the
alleged guilty party go and report himself?
[32]
It is true that a medical report was introduced into the evidence by
mutual consent of both parties. However, this medical
report proved
to be inconclusive. Under the heading ‘clinical findings’
where the doctor is required to indicate the
entrance and exit points
of the bullets, he made two question marks. The only reasonable
inference to be drawn, absent any explanation,
is that the doctor was
unable to determine the entrance and exit wounds. However in the same
medical report on the schematic drawing
of the findings, he indicated
the entrance wound as being on the upper right buttock and the exit
wound on the right hip.
[33]
It is clear that the regional magistrate relied on the medical
evidence to reject the appellant’s defence of self-evidence,
the assumption being that the complainant was shot at the back whilst
running or walking away from the appellant. The logical conclusion
therefore being that the appellant was not in any danger which
justified his shooting. I am of the view that the regional magistrate
erred in accepting and relying on such inconclusive medical evidence.
The obligation was on the State to prove beyond reasonable
doubt that
the complainant was shot from behind. The medical report is of no
assistance on this crucial aspect.
[34]
Faced with such a glaring contradiction on such a crucial aspect of
the case, the regional magistrate had a remedy. He should
have called
the medical doctor in terms of s 186 of the Criminal Procedure Act 51
of 1977 (CPA) to clarify this uncertainty. This
is so particularly as
this evidence was used as corroboration for the complainant’s
version that he was shot from the back.
[35]
It is not in dispute that there is inherent contradiction in the
medical report. My colleague Shongwe JA agrees that the medical
doctor should have been called as an expert to explain this glaring
contradiction. However he is of the view that the failure to
call the
doctor is not fatal to the State’s case. I respectfully
disagree with him. It suffices to state that in line with
the dictum
in
R v Difford
1937 AD 370
and restated in
S v V
(above), the duty is on the state to prove the guilt of the accused
beyond reasonable doubt. It follows therefore that there is
no
obligation on an accused person to make out a case for the State
against himself. In any event this would be subversive to s
35(3)(
h
)
and (
j
) of
the Constitution
to be presumed innocent,
to remain silent and not to testify during proceedings nor to be
compelled to give self-incriminating evidence.
See
S
v Legote en `n andere
2001 (2) SACR 179
(SCA) paras 8 and 9.
[36] Particularly
because of this serious uncertainty posed by the medical report,
which is undeniably ambiguous and called for
clarification, it is
important to remind judicial officers presiding over criminal trials
that there are times when justice demands
that, instead of remaining
passive umpires, merely there to ensure that the rules of the game
are observed, they have to be proactive,
without compromising their
impartiality, to call for the relevant evidence, particularly where
they are of the view that such a
course is necessary to ensure a just
outcome. This is such a case. This is the
raison d’ être
for
s 186
of the
Criminal Procedure Act 51 of 1977
which provides
that:
‘
186
court may subpoena witness.
The court may at any
stage of criminal proceedings subpoena or cause to be subpoenaed any
person as a witness at such proceedings,
and the court shall so
subpoena a witness or so cause a witness to be subpoenaed if the
evidence of such a witness appears to the
court essential to the just
decision of the case.’
[37] Some 86 years
ago, this court described the function of a judge conducting a
criminal trial succinctly as follows in
R v Hepworth
1928 AD
265
at 277:
‘
A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side,
and a
judge’s position in a criminal trial is not merely that of an
umpire to see that the rules of the game are observed
by both sides.
A judge is an administrator of justice, he is not merely a figure
head, he has not only to direct and control the
proceedings according
to recognised rules of procedure but to see that justice is done.’
[38]
Undoubtedly this dictum salutary as it is, introduces an
inquisitorial element to a fundamentally adversarial criminal justice
system. However this is intended to avert the possibility of an
injustice which might occur should a court remain supine in the
face
of a need to be proactive to obtain the necessary evidence. However,
such a court must be astute to avoid creating the impression
that it
has descended into the arena. This is impermissible as it will result
in the court getting involved in the dust of conflict
between the
prosecution and the defence with the concomitant loss of its
impartiality, an essential pre-requisite for a fair trial.
See
S
v Rall
1982 (1) SA 828
(A);
S
v Gerbers
1997 (2) SACR 601
(SCA).
[39]
Given the glaring uncertainty in the medical report, I am of the view
that the regional magistrate erred in accepting it without
any
further investigations. Faced with a similar situation where there
was some uncertainty in a medical report concerning the
injuries
allegedly sustained by a complainant, Wallis JA expressed the
following warning in
S v MM
2012 (2) SACR 18
(SCA) para 24 that ‘It is most unsatisfactory
to have to reach a conclusion on the basis of uncertainty concerning
the meaning
of the medical report… Certainly, wherever the
implications of the doctor’s observations are unclear, the
doctor should
be called to explain those observations and to guide
the court in the correct inference to be drawn from them’.
Regrettably
the regional magistrate seemed to have relied on the fact
that the medical report was accepted as an exhibit by consent. This
begs
the question: what did the appellant’s legal
representative consent to? Does his consent explain away the glaring
uncertainty
in the medical report? The simple answer is no.
[40]
We are now left with the two conflicting versions to consider. In
line with established authorities I have to consider the
State’s
version and the appellant’s version holistically and not on a
piecemeal basis. This salutary approach was recently
restated by this
Court in
S v M
2006 (1) SACR 135
(SCA) para 189 as follows:
‘
the
point is that the totality of the evidence must be measured, not in
isolation, but by assessing properly whether in the light
of inherent
strength, 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.’
[41]
I have already pointed out the various contradictions and
inconsistencies in the complainant’s own version as well as
his
version in contradistinction to that of his witnesses. It is clear
that the complainant was at pains to project himself as
an innocent
victim of an unprovoked attack by the appellant.
[42]
In contradistinction to the State version, the appellant’s
version is corroborated by his witness, Kgobe that whilst
he was
seated in his vehicle at the Engen garage, the complainant confronted
him angrily and interrogated him on his manner of
driving. Although
the complainant denied it, it appears to me to be probable, in the
light of everyday human life experiences,
in particular during road
rage situations that tempers flared and the complainant was angry
with the appellant because of his manner
of driving earlier on, that
when he stopped at the garage. The complainant went to confront him
in his vehicle and an altercation
ensued between them, in the process
the complainant assaulted the appellant and the appellant produced
his firearm and shot at
the complainant to ward off this unlawful
attack by the complainant. I furthermore found it probable that in
this situation in
which the appellant found himself trapped in his
vehicle, he could not have had the luxury of time to choose where he
was shooting.
His life was in actual danger.
[43]
It is noteworthy that after the complainant had received medical
treatment, he never reported this near fatal incident which
on his
own version caused him serious bodily injuries, to the police.
Instead he moved away to some remote place in Polokwane.
He only
reported this incident some four months later during February 2003.
On being asked for a reason, he responded that he had
expected the
appellant to report the incident to the police. The inference is
irresistible that the complainant went away without
reporting the
incident because he knew that he was guilty as he initiated the
altercation and he feared that the police might come
for him. He
needed a cooling off period at a remote area where he could not be
traced by the police.
[44]
In rejecting the appellant’s version the regional magistrate
relied on some discrepancies which emerged from the appellant’s
version and that of his witnesses. These discrepancies relate to the
number of passengers in the appellant’s motor vehicle
and an
indication on the sketch map of how the vehicles stood. Regrettably
the regional magistrate does not explain how these discrepancies
impact on the reliability and cogency of the appellant’s
version. Having read the record, I find that these discrepancies,
given the general conspectus of the evidence are minor and have no
bearing on the other parts of the appellant’s version.
To my
mind this is to be expected from an imperfect witness.
S
v Mkohle
1990 (1) SACR 95
(A) at 98E-F.
Absent any serious criticism against the appellant and his witness,
the regional magistrate erred in rejecting his
version as it could
not be said that it was not reasonably possibly true. See
S
v V
(above). It follows that this
appeal must succeed.
[45] In the result
the appeal is upheld and the conviction is set aside.
_______________________
L
O BOSIELO
JUDGE
OF APPEAL
Appearances
For
the Appellant: H L Alberts
Instructed
by:
Justice
Centre, Pretoria
Justice
Centre, Bloemfontein
For
the Respondent: P Vorster
Instructed
by:
Director
of Public Prosecutions, Pretoria
Director
of Public Prosecutions, Bloemfontein