About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2011
>>
[2011] ZAGPPHC 14
|
|
Cannon v S (A1117/09) [2011] ZAGPPHC 14 (11 February 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENGDIVISION, PRETORIA
CASE
NUMBER: A1117/09
DATE:
11 February 2011
WILLIAM
JOHANNES
CANNON
...................................................................
APPELLANT
V
THE
STATE
......................................................................................................
RESPONDENT
Judgment:
MabuseJ
JUDGMENT
MABUSE
J:
1.
This is an appeal against both conviction and sentence. On 28
September 2009 a Magistrate Court sitting at Springs, convicted
the
appellant of assault with intent to do grievous bodily harm and
sentenced him to R3000.00 or three months imprisonment half
of which
was suspended for a period of 3 years on condition that the appellant
was not again convicted of common assault or assault
with intent to
do grievous bodily harm committed during the period of suspension.
2.
The allegations against the appellant in the court a quo were that on
4 March 2009, and at or near Geduld in the district of
Springs, the
appellant had unlawfully and intentionally assaulted one Bennie
Mulder hereinafter referred to as "the complaint"
by
hitting him with fists with intent to do grievous bodily harm. The
appellant was represented in the court a quo by one Mr. Van
Aswegen.
He pleaded not guilty to the charge against him and made a plea
explanation in terms of the provisions of section 115
of the Criminal
Procedure Act 51 of 1977 (CPA). According to his plea explanation
which was given by his legal representative,
the complainant hit the
accused on the chest and the appellant warned him against it. He hit
the appellant in the chest for the
second time and over and above
that, slapped the appellant in the face. At this point the appellant
slapped the complainant in
self defence.
3.
Having listened to the evidence from both sides, the court a quo was
satisfied that the State had proved its case beyond reasonable
doubt.
It accepted the State evidence and rejected the appellant's version.
It convicted the appellant accordingly and sentenced
him as I have
indicated above. The appellant now appeals to this court, leave to
appeal having been granted by the court a quo
against both conviction
and sentence on grounds fully set out in his application for leave to
appeal.
4.
In the court a quo the State led the evidence of the complainant and
his witness Trudie Mulder ("Trudie"), while the
appellant
himself testified and called a witness to testify in his defence. The
complainant testified that on 4 March 2009, around
14hl5 at or near
Bargain Auto, Geduld, and while walking home in the company of his
sister Trudie, the appellant called him from
behind. The appellant
approached him and asked him if he was Bennie. The complainant
confirmed that indeed he was Bennie upon which
the appellant, and
without much ado, attacked him.
5.
The appellant hit him with fists six times in the face and as a
result of which he fell. According to him the appellant attacked
him
over one Ronel, his girlfriend. He knew the reason for his assault
because the appellant had on an earlier occasion sent him
an "sms"
in which he warned him that he would send him to a hospital if he did
not stay away from Ronel. By sending him
to the hospital, according
to the complainant, meant that the appellant would assault him.
6.
At the time of the incident Ronel was not present but he had seen her
earlier when she just walked passed him.
7.
The complainant denied that he had first attacked the appellant. He
testified furthermore that while the appellant was beating
him with
fists he never fought back. As a consequence of the appellant's
assault on him, his face was swollen, his eyes were blue
and his
mouth sustained some abrasions inside. After the assault, he went to
report at the local police station where he was sent
to the doctor
with a medical form to be completed by the doctor. This was handed in
as an exhibit. Trudie also testified and corroborated
the
complainant's testimony. The appellant also testified and called a
witness who supported his version. His version is that on
the date in
question, he was walking inside a venue in the company of his
girlfriend whom he had gone to fetch from school. When
he was at the
corner of Wedding World, he saw the complainant on the other side of
the street. The complainant was with his sister.
The complainant
called him. It is not clear from the evidence whether or not he went
to the complainant. Nonetheless where they
met, the complainant
bumped him. He warned the complainant that if he continued bumping
him he would be in trouble.
8.
The complainant then bumped him again and this time also hit him with
an open hand in the face. He then fought back and hit the
complainant
once in the face with a flat hand as a result of which he fell. His
girlfriend thereafter pulled him back and asked
him that they should
leave. They left the scene immediately. He denied that he had hit the
complainant in the manner he and his
sister had testified.
9.
Mr van Aswegen, the appellant's legal representative, filed extensive
grounds of appeal. As such grounds are on record, I do
not deem it
necessary to repeat them in this judgment. It is important however,
to point out that in the third ground of appeal,
the appellant
contends that the Magistrate in the court a quo erred in finding that
the State had proved its case beyond reasonable
doubt; that the court
failed to analyse or assess the evidence of the State witnesses
properly and to take the inherent improbabilities
in the State
versions into account; that the court erred in rejecting the
appellant's version as not to be reasonably possibly
true.
10.
The approach that this appeal court should adopt in a matter of this
nature has been properly set out by Greenberg JA, as he
then was, in
R v Dlhumayo and Another
1948 (2) SA 678
A.D. The approach is
captured aptly by the learned author, A Kruger in Hiemstra's Criminal
Procedure. He states, on pages 30.45
as follows:
"A
court of appeal must bear in mind that a trial court saw the
witnesses in person and could assess their demeanour. If there
was no
misdirection of facts by the trial court, the point of departure is
that its conclusion was correct. The court of appeal
will only reject
a trial court's assessment of evidence if it is convinced that the
assessment is wrong. If the court is in doubt,
the trial court's
judgment must remain in place (S v Robbinson
1968 (1) SA 666(A)
at
675H). The court of appeal does not zealously look for points upon
which to contradict the trial court's conclusions, and the
fact that
something has not been mentioned does not in itself mean that it has
been overlooked."
11.
It is not the duty of this court to substitute the judgment of the
court a quo with its own judgment. An appeal court must decide
the
appeal on the facts before it as contained within the four corners of
the record of appeal. It is the duty of this court to
establish from
the record of appeal firstly, if the court a quo has misdirected
itself on the facts of the matter and secondly,
to satisfy itself
that the court a quo assessment of the evidence was not wrong. Based
on authority of Pillay v Krishner and Another
1946 SA 946
AD at page
941 there is a duty on the appellant to satisfy this court that the
court a quo misdirected itself as far as the facts
of the case are
concerned and furthermore that the court a quo's assessment of the
evidence at the trial was wrong.
12.
It is common cause between the State and the Defence that the issue
in dispute at the trial of the matter was whether or not
the
appellant acted in self defence at the time he hit the complainant.
As a consequence of the appellant's plea, it was common
cause between
the State and the Defence furthermore in the court a quo that the
appellant had hit the complainant. What the court
a quo had to do was
to establish whether the complainant was assaulted in the manner in
which he testified or in the manner in
which the appellant and his
witness testified.
13.
Mr Moeng, who appeared for the appellant, submitted that the
appellant's version is reasonably possibly true and that the
respondent
did not prove it to be false beyond any reasonable doubt.
With regard to the burden of proof, he submitted furthermore that the
respondent, which bore the onus to prove its case beyond reasonable
doubt, had failed to do so. He further submitted on behalf
of the
appellant that there was doubt in the Respondent's case and that in
the premises, the Appellant should have benefitted from
such doubt
and that the appellant should have been found not guilty and
acquitted. On the other hand, Mrs Molepo, counsel for the
respondent,
submitted that the appellant had been correctly convicted by the
court a quo and that the appellant's appeal against
his conviction
should be dismissed.
14.
It is clear that there are very serious problems with both the
respondent's and the appellant's versions. The magistrate remarked
that there was nothing wrong with the evidence of the respondent's
witness or the manner in which they testified. He found both
witnesses impressive and on that basis accepted their evidence.
15.
The magistrate found that the evidence of the respondent's witnesses
was inconsistent but found that these inconsistencies were
not
material. According to the complainant, the appellant hit him six
times with fists in the face and it is this assault that
resulted in
the injuries that he sustained on that particular day. At the same
time, the complainant's witness, Trudie, testified
that the appellant
threw four to live punches which hit the complainant. It is clear
that, with regard to the number of punches
which the appellant
allegedly threw at, and hit the complainant with, the respondent's
evidence is inconsistent. It is this inconsistency
that the court a
quo referred to as being immaterial and here I must agree with the
magistrate's analysis of the evidence. In this
regard see S v Mkohle
1990(1) SACK 95(A) at 98 F-G where the court stated that:
"Contradictions
per se do not lead to the rejection a witness' evidence. As Nicolas
J, as he then was, observed in S v Oosthuizen
1982 (3) SA 571
(TPD)
at 576 B-C, they may simply be indicative of an error. And (at
576G-H) it is stated that not every error made by a witness
affects
his credibility; in each case the trier of fact has to make an
evaluation; taking into account such matters as the nature
of the
contradictions, their number of importance, and their bearing on
other parts of the witness' evidence indicative of an error."
16.
Although there are inconsistencies in the respondent's witnesses'
evidence, the inconsistencies, the court a quo correctly found,
were
not of a material nature.
17.
Mr Moeng argued that the court a quo should have found that there was
doubt in the evidence of the respondent's witnesses. The
origin of
this doubt, so he argued, is that it is not clear whether the
injuries that the complainant sustained resulted from the
assault on
him with an open hand by the appellant or as a result of him falling
on the ground. This leads me to consider the evidence
of appellant in
the court a quo.
18.
According to the appellant, he only hit the complainant once with a
flat hand. The injuries that the complainant sustained and
which have
been accurately captured in the J88 were according to the appellant
the result of the aforementioned assault with an
open hand. The
complainant's version that the appellant hit him with fists has been
corroborated by his witness, even though the
witness does not know
the number of fists that the complainant was hit with. This is not a
material difference. According to the
complainant, the injuries that
he sustained during the incident were caused by the appellant when he
hit him with fists. Although
he fell, his evidence does not reveal
that he sustained injuries as a consequence thereof. The testimony of
the complainant that
the appellant hit him with fists on the face is
further corroborated by the J88. It is highly unlikely that by their
nature and
location, the complainant's injuries could have been
caused by an assault with a single open hand.
19.
The court a quo seems to have concluded that the appellant, acting in
self defence, hit the complainant six times with fists
and under
those circumstances exceeded the bounds of self defence. This reason
is, in my view, flawed and is not based on the facts
of the matter.
It is also not based on the evidence of the state witnesses who
denied that the complainant attacked the appellant.
In the
circumstances the court a quo could not have been justified in coming
to a finding that the appellant had acted in self
defence.
20.
The court a quo could only have come to a finding that the injuries
inflicted on the complainant were serious and that their
seriousness
could only be in accord with the evidence of the respondent's
witnesses namely that the appellant had hit the complainant
with
fists. If the court accepts that the appellant hit the complainant
with fists, then it must find that it happened under the
circumstances testified by the complainant and his witness and that
the appellant did not therefore act in self defence at the
time he
assaulted the complainant.
21.
Accordingly the necessary facts for drawing an inference that the
appellant acted in self defence are lacking.
"Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective
facts from which to
infer the other facts which it is sought to establish ... But if
there are no positive proved facts from which
an inference can be
made, the method of inference fails and what is left is mere
speculation or conjecture." See Ciswell v
Powell Duffey and
Associated Collieries Ltd.
1940A AC 152
196, 1939(3) A ER 722 733.
See also AA Onderlinge Assuransie Beperk v De Beer 1982(2} SA 6 23.
22.
Based on the State's case and the nature and seriousness of the
injuries that the complainant sustained, the court a quo was
correct
in finding that the appellant was guilty of assault with the intent
to do grievous bodily harm. The appellant, in my view,
was correctly
convicted and his appeal against conviction should fail.
23.
The appellant has also noted an appeal against the severity of the
sentence on the basis that it is harsh and inappropriate
in the
circumstances of this case. Mr. Moeng argued that in imposing
sentence, the court a quo should have given due weight to
the fact
that, at the time of the sentence, the appellant was merely 20 years
old, a relatively young man and furthermore that
he had a clean
record. He furthermore argued that the court should have striven to
keep the appellant out of jail.
24.
Counsel for the respondent, on the other hand, submitted that the
court a quo had taken into account the appellant's personal
circumstances, the interests of society and the seriousness of the
offence in sentencing the appellant. She submitted that the
court a
quo had exercised its discression properly in the imposition of
sentence; that the sentence imposed was appropriate in
the
circumstances of this case and that the appeal against sentence
should be dismissed.
25.
R v Maphumulo and Others
1920 AD 26
at 57 stated as follows:
"The
infliction of punishment is pre-eminently a matter for the discretion
of the trial court. It can better appreciate the
atmosphere of the
case and can better estimate the circumstances of the locality and
the need for having a light sentence than
an appeal tribunal and we
should be slow to interfere with its discression."
26.
In order to succeed with his appeal against sentence, and I must
pause here and state that these are the grounds the appeal
tribunal
shall look into on appeal, the appellant must satisfy the appeal
court that "the magistrate in the court a quo has
misdirected
himself as to the facts or the law or that he has exercised his
discretion capriciously upon a wrong principle or so
unreasonably as
to induce a sense of shock." See R v S 1958(3) SA 102 at p. 104
a-b.
27.
This court is now enjoined to go fully into the evidence and
pronounce against the court a quo's perceived misdirection. Although
the court a quo referred to the purposes of sentence, the personal
circumstances of the Appellant, the seriousness of offence and
the
interest of the community, it is quite clear that it merely paid lip
service to these factors. The court has failed to evaluate
the
sentence it imposed on the appellant.
28.
The court a quo imposed the sentence it did on the appellant because:
"Assaultingpeople
tent (sic) to be a norm nowadays."
The
court a quo made no reference to the fact that, among others, the
appellant was a scholar at the time of the imposition of sentence
and
furthermore that he had a clean record. The court over emphasized the
prevalence of the offence at the expense of the personal
circumstances of the appellant and by doing so committed a
misdirection which entitles this court to interfere with the sentence
imposed on the appellant. Accordingly I agree with Mr. Moeng that the
sentence imposed by the court a quo on the appellant should
be
interfered with.
29.
I accordingly propose the following order:
1.
The appeal against conviction is hereby dismissed.
2.
The conviction of the appellant by the court a quo is hereby
confirmed.
3.
The appeal against sentence is hereby upheld.
4.
The sentence imposed on the appellant by the court a quo is hereby
set aside and replaced with the following:
"The
accused is sentenced to R3000.00 (three thousand rand) or three (3)
months imprisonment which is wholly suspended for
five (5) years on
condition that the accused is not again convicted of common assault
or assault with the intent to cause grievous
bodily harm committed
during the period of suspension."
P.M.
MABUSE
JUDGE
OF THE HIGH COURT
I
agree, and it is so ordered
M.
W. MSIMEKI
JUDGE
OF TOE HIGH COURT
Appearances:
Appellant's
Counsel: S. Moeng
Respondent's
Counsel: NC Molepo
Date
Heard: 2 August 2010