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[2014] ZASCA 96
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Prinsloo v S (534/13) [2014] ZASCA 96 (15 July 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
NOT
REPORTABLE
Case
No: 534/13
In
the matter between:
LOURENS
STEPHANUS
PRINSLOO
..........................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral citation
:
Prinsloo v State
(534/13)
[2014]
ZASCA 96
(15 July 2014)
Coram:
Bosielo, Saldulker JJA and Mathopo
AJA
Heard:
29 May 2014
Delivered:
15 July 2014
Summary:
Criminal
law ─ appeal against conviction ─
crimen
iniuria
and assault
─ the proper approach where the state and defence versions are
mutually destructive ─ evaluation of the
probabilities,
strength and weaknesses of both versions.
ORDER
On
appeal from:
Free
State High Court, Bloemfontein (Musi and Daffue JJ sitting as court
of appeal):
The
appeal against conviction is dismissed.
JUDGMENT
Mathopo
AJA (Bosielo and Saldulker JJA concurring):
[1]
This appeal arises from an altercation about parking at a female
residence called
Vergeet-My-Nie
situated at the University of the Free State. The appellant was
convicted of two counts of
crimen
iniuria
and one
count of assault by the Bloemfontein Magistrate Court on 4 January
2012. All the counts were taken together for purposes
of sentencing.
He was sentenced to a fine of R6 000 or twelve months imprisonment,
wholly suspended for a period of five years
on suitable conditions.
The appellant appealed only against his conviction to the Free State
High Court, with the leave of the
trial court. The appeal was
dismissed on 14 February 2013. The appeal on conviction before us is
with leave of the court below.
[2]
The circumstances giving rise to the conviction and sentence may be
summarised as follows: On 3 February 2010 Ms Mkhiwane,
the
complainant in count one, testified that she went to the
Vergeet-My-Nie
female residence at the University of the Free State with her
two daughters Ms Ayanda Mkhiwane (Ms Ayanda) and Ms Zintle
Mkhiwane
(Ms Zintle). Her youngest daughter Ms Zintle was enrolled as a first
year student and would be housed at that residence.
Upon their
arrival at the residence there were no available parking bays. Ms
Mkhiwane parked her vehicle next to the residence,
in a
non-designated spot, as she had to offload Ms Zintle’s luggage.
After offloading the luggage, they returned to the motor
vehicle. She
entered first. She then overheard Ms Ayanda speaking to someone and
noticed the appellant and three ladies pointing
their fingers at
them. Ms Ayanda asked them what the problem was. At that stage,
the appellant, who was 30 metres away from
them, moved towards their
vehicle and uttered the following words whilst pointing at her: ‘Yes
I have a problem but I do
not want to talk to you, I want to talk to
the stupid and rude one’. The appellant also said to Ms Ayanda
that she does not
have a driver’s licence because she is black.
[3]
Ms Mkhiwane alighted from her vehicle to reprimand the appellant not
to speak to her in that manner and told him that she was
old enough
to be his mother. Undaunted, the appellant grabbed her on the chest
with his left hand and said, ‘I will beat
the hell out of you,
woman’. She was scared; she lost her balance and informed the
appellant that she was going to have him
arrested.
[4]
Undeterred, the appellant told her that by the time she had him
arrested he would have beaten ‘the hell out of her’
and
boasted that he would represent himself in court as he is a lawyer.
At that stage the appellant’s girlfriend, Ms Blaa
u
w,
came and physically pulled the appellant away from the parking lot to
the residence. A few seconds later the appellant returned,
and in an
angry and aggressive manner, pointed at Ms Mkhiwane and her two
daughters and blurted the following words: ‘Julle
fucking
kaffirs’. Once again Ms Blaauw intervened and restrained the
appellant, who was visibly angry.
[5]
According to Ms Mkhiwane, she and her daughters then left the scene
to report the incident, however, before they did so, they
returned to
the residence to ask for the appellant’s name. The appellant
refused and crudely asked, ‘What the fuck
are you going to do
with the name?’ Ms Mkhiwane then decided to take down the
registration number of a blue City Golf belonging
to one of the women
who was with the appellant. She thereafter went to report the matter
to a Professor Viljoen at the university.
Thereafter she reported the
matter at the police station.
[6]
In a direct response to a question about how she felt when the words
in the aforegoing paragraphs were used, she responded
that she felt
naked, worthless, belittled, dirty and that she felt like something
had been taken away from her. She testified further
that she
understood the word
kaffir
to be derogatory
and racist. It was her evidence further that these words were also
heard by a young man who was nearby, and who
was equally disturbed
and wanted to take up the cudgels on her behalf and assault the
appellant. However Ms Mkhiwane stopped him
from taking such action.
What incensed and humiliated her most was the fact that the appellant
uttered those words in the presence
of her two daughters and other
members of the public.
[7]
She denied emphatically under cross-examination that she and her
daughters were aggressive and unruly towards the appellant
and his
companions and that they incited the argument. She reiterated that
the appellant was initially talking to her daughter
Ms Ayanda, and
later approached her after she alighted from the vehicle. At that
stage she observed from the appellant’s
facial expression that
he was angry. She disputed the allegations that she referred to
herself as a doctor and had threatened to
ensure that the appellant
did not obtain his degree from the university.
[8]
The next witness for the State was Ms Ayanda. At the time of the
incident she was reading for her Master’s degree at
the same
university. She corroborated her mother’s evidence in all
material respects. The last witness for the State was
Ms Zintle, Ms
Mkhiwane’s youngest daughter. Save for a few unimportant
discrepancies in her evidence, it is essentially the
same as that of
her mother and sister. An ill-fated attempt was made to discredit her
by pointing out some discrepancies in her
evidence in court and the
statement which she allegedly made to Ms Elize Saayman, the
university internal investigator. The Magistrate
rightly attached no
value to the statement as she found that it was not property taken
from Ms Zintle, and further that it was
not read back to her before
she signed it. Ms Saayman also confirmed in evidence that the
statement was written down in a rush.
She only caused Ms Zintle to
sign it the following day, in the absence of her parent or guardian,
notwithstanding the fact that
she was 17 years old at the time.
[9]
The appellant testified in his defence and called the two female
friends who were with him at the residence as his witnesses.
He
conceded in his evidence that he saw a vehicle parked on the pavement
and he and his two female friends spoke about the fact
that the
vehicle was parked at the wrong place. Whilst they were talking, they
saw Ms Mkhiwane and her two daughters. Ms Ayanda
stood at the front
passenger door and asked them whether there was a problem, to which
they did not respond. He testified that
she appeared aggressive and
provocative. Although he did not reside at the residence, he felt
obliged to tell them that they had
parked in the wrong place. Ms
Ayanda then said to them ‘Who do you think you are to tell me
where to park?’ and referred
to him as an idiot who wanted to
impress the girls he was with.
[10]
He testified further that Ms Mkhiwane alighted from her vehicle and
calmly took his arm and asked what the problem was. Ms
Ayanda kept
intervening while he was talking to Ms Mkhiwane. He then told her to
keep quiet as he was talking to her mother. He
told Ms Mkhiwane that
they had parked at the wrong place, whereupon Ms Mkhiwane asked
whether the appellant was in charge of the
parking area. He told her
that he was not in charge but that if they went to campus control
they would be told not to park there.
[11]
According to the appellant, Ms Mkhiwane suddenly became aggressive
and said that the university would castrate him for what
he was
doing. At this stage Ms Zintle also got out of the car and screamed
at him. A serious verbal altercation ensued. Ms Blaauw
then came over
and removed him from the parking lot. As he was being removed, Ms
Ayanda then said to Ms Blaauw ‘You must
teach your boyfriend to
behave’ to which she responded ‘He knows how to behave’.
Ms Ayanda then referred to him
as a racist.
[12]
The appellant confirmed that he and the two ladies left the scene
and returned a few minutes later. He testified that at this
stage
that Ms Mkhiwane got out of the car, screamed at him and said ‘You
mother fucker, who do you think you are?’
.
He further testified that all three of them shouted and swore at him.
At this stage Ms Mkhiwane asked for his name and student
number and
he replied that he is not a student at the university. He refused to
provide his personal particulars. She then said
that she would find
out who he is and would ensure that he does not pass a single subject
at the university and does not graduate.
[13]
The appellant’s friends, Ms Blaauw and Ms Botha, testified in
support of his evidence. I find it expedient to deal with
their
versions together as their evidence is essentially the same. They
both described the appellant as calm during the incident
and imputed
offensive and aggressive behaviour to the second State witness Ms
Ayanda. They testified that all three State witnesses
swore at the
appellant. They denied emphatically that the appellant uttered the
words he was accused of. Importantly, they said
that Ms Zintle
uttered derogatory words to the effect that they should ‘Leave
the mother fuckers alone’. Ms Blaauw
further testified that the
appellant was calm and was verbally attacked for no reason. However,
her evidence contradicts the evidence
tendered by the appellant, in
which he admitted that he was angry.
[14]
In this court the main thrust of the appellant’s contention
was that the Magistrate misdirected herself in that she
failed to
specifically mention in her judgement that she had considered the
credibility of the each of the witnesses. It was contended
that in so
doing she had adopted a piecemeal approach to the evaluation of the
evidence. In my view, this contention is misplaced.
Although the
Magistrate did not explicitly state that she considered the
credibility of each of the witnesses, it is clear from
her judgment
as a whole, that in arriving at her conclusion, she had had regard to
the credibility of the witnesses. On the contrary,
the record reveals
that the Magistrate made a proper assessment and analysis of all the
evidence by, amongst other things, weighing
the strength and the
weaknesses of the state’s case
vis-à-vis
that of the appellant, including the probabilities and
improbabilities of both versions of events. It is axiomatic that an
examination
of the probabilities is not done
in
vacuum
. Such an
exercise requires an analysis and evaluation of the evidence as a
whole. See
S v M
2006 (1) SACR 135
(SCA) para 189.
[15]
An attempt was made to discredit Ms Zintle on the basis that she
deviated from her statement to the police. In my view, the
alleged
discrepancies are not material and cannot affect the probative value
of the evidence of the State witnesses. To expect
witnesses to
remember and recall their evidence
verbatim
appears to me to be irrational. The criticism levelled against Ms
Zintle’s statement is baseless because on the evidence
of Ms
Saayman, the statement was taken in a hurry. To my mind this implies
that Ms Zintle had little time to consider her statement.
This
explains why the same statement was altered the next day. It is not
unreasonable to assume that she was seriously traumatised
by this
unfortunate incident. It would be unrealistic to expect her to give a
lucid and coherent account of the events shortly
after the incident.
Furthermore, Ms Zintle, who was a minor at the time, was allowed to
depose to a statement without the support
or guidance of her parent
or legal guardian. In all likelihood she did not intend this
statement to replace the evidence which
she would give in a
subsequent trial. In short, the making of a statement is not the same
as giving evidence in court, where in
many instances crucial evidence
only will only come to light through cross-examination. I find the
criticism against her evidence
to be without substance. See
S
v Mafaladiso
2003
(1) SACR 583
(SCA).
[16]
Counsel for the appellant argued further that because the State
witnesses did not repeat in their evidence some of the words
which
were used in the charge sheet, the State witnesses should be
disbelieved as this constituted discrepancies. I do not agree.
It is
a known fact that the drafting of charge sheets is the prerogative of
the Public Prosecutor. This is done on the basis of
the facts
contained in the statements in the docket made by witnesses. The
witnesses play no role or part in this regard. To expect
the charge
sheet to regurgitate the exact words used by the witnesses when they
made their statements to the police is to my mind
unrealistic. The
evidence given by witnesses is intended to explain and support the
averments in the charge sheet. It is to be
expected that witnesses
will, whilst giving evidence in court, elaborate and explain the
legalistic averments contained in the
charge. Consequently, I find
this ground to be without merit.
[17]
I find the following pieces of evidence by the appellant to be
destructive to his credibility and reliability as a witness:
first,
the appellant fared badly when he was confronted with the evidence of
the State witnesses that he had to be dragged from
the scene by his
girlfriend in order to put a stop to the first altercation at the
car; secondly, it is telling that, after being
pulled into the
dormitory, he returned a few seconds later, still aggressive, and
continued insulting them. Furthermore, the appellant
contradicted
himself concerning the question whether he was angry or not at the
material time. He maintained in his evidence in
chief that he was not
angry with the State witnesses that day. His two witnesses also
denied that he was angry. However, later
in cross examination he
conceded that he became angry during the altercation. Self-evidently,
this is a glaring and material contradiction
on a material aspect of
the case. In my view, this contradiction between the appellant
and his witnesses is destructive of
their credibility. It is no doubt
this contradiction is the result of a poor attempt by the appellant
and his witnesses to deny
the fact that he was angry and that he
blurted these derogatory words while in that state. This
contradiction between the
appellant and his witness is destructive of
their credibility.
[18]
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. If his explanation is found
to be
reasonably possibly true, the court will have no reason to reject it.
See
S v Mbuli
2003 (1) SACR 97
(SCA) at 110D-E. See also
S
v V
2000 (1) SACR
453
(SCA) at 455B. However, this does not require proof beyond any
shadow of doubt by the State. See
S
v Phallo
1999 (2)
SACR 558
(SCA) para 10.
[19]
The Magistrate delivered a well-reasoned judgment which accounted for
all the proven facts. She found the following serious
improbabilities
in the appellant’s version; first, that the defence witnesses
did not hear the appellant swearing at the
State witnesses, but they
heard Ms Ayanda calling the appellant a racist; secondly, whilst this
incident happened at the same place,
it is clear that they chose to
hear and testify about what was favourable to the appellant; thirdly,
although present at the scene,
none of them witnessed the appellant
grabbing Ms Mkhiwane by her shirt; fourthly, they could not explain
why Ms Ayanda reacted
in an aggressive manner to the appellant, if he
was indeed calm and had only politely informed them that they had
parked in an
unauthorised place; fifthly, that Ms Mkhiwane, who on
the appellant’s version, alighted from her vehicle in a calm
and composed
manner, suddenly and for no reason, hurled abuses at the
appellant; sixthly, that Ms Mkhiwane would utter such abusive words
in
the presence of her own daughters; and lastly, why Ms Blaauw
had thought it necessary to pull the appellant away from the
parking
lot into the dormitory if he was as composed as he alleged.
These improbabilities demonstrate unquestionably that
the appellant
and his witnesses’ evidence is unreliable, as correctly found
by the trial court. I am satisfied that their
evidence was correctly
rejected by the trial court as false.
[20]
Against this backdrop I have no doubt that the appellant behaved in a
high-handed and cantankerous manner, and further that
he uttered the
words attributed to him. The word
kaffir
is racially abusive and offensive and was used in its injurious
sense. This was an unlawful aggression upon the dignity of the
complainants. The State witnesses testified about how they felt when
so insulted by the appellant. It is trite that in this country,
its
use is not only prohibited but is actionable as well. In our racist
past it was used to hurt, humiliate, denigrate and dehumanise
Africans. This obnoxious word caused untold sorrow and pain to the
feelings and dignity of the African people of this country.
The
appellant cannot claim that he did not know that the use of such word
is offensive and injurious to the dignity of the complainants.
I agree with the trial court’s finding that such conduct seeks
to negate the valiant efforts made to break from the past
and has no
place in a country like ours which is founded upon the democratic
values of human dignity, and the advancement of human
rights and
freedoms.
[21]
In conclusion, I find that the trial court was correct in finding
that the appellant uttered the words allegedly used, and
further that
he had intended to and did in fact humiliate, denigrate and injure
the dignity of the complainants. It follows
that the appeal
must fail.
[22]
In the result I make the following order:
The
appeal against conviction is dismissed.
____________________
R
S Mathopo
Acting
Judge of Appeal
Appearances
For
the Appellant: R Heathcote SC (with him W J Edeling)
Instructed by:
Horn & Van Rensburg Attorneys,
Bloemfontein
For
the Respondent: S Giorgi
Instructed by:
Director of Public Prosecutions,
Bloemfontein