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[2011] ZAGPPHC 138
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De Vasconcelos and Another v S (A207/2007) [2011] ZAGPPHC 138 (26 July 2011)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL
PROVINCIAL DIVISION)
CASE
NO: A207/2007
DATE:26/07/2011
In
the matter between:
EUGENE
DE
VASCONCELOS
....................................................................
FIRST
APPELLANT
STEVEN
DE
VASCONCELOS
................................................................
SECOND
APPELLANT
And
THE
STATE
.........................................................................................................
RESPONDENT
JUDG
MENT
MAVUNDLA
J,
[1]
The appellants were on 20 May 2005 convicted at the magistrates court
Nelspruit of assault with intent to do grievous bodily
harm and
sentenced to R2 000, 00 or 12 months imprisonment each.
[2]
After the issues were ventilated before us,
we called for
supplementary heads of argument, which were subsequently furnished.
Subsequent to the additional heads having been
furnished, a draft
judgment was prepared. Due to various factors there was a delay in
preparing the judgment. The delay was further
compounded by the fact
the laptop I had used for preparing the draft judgment crashed. I had
to wait for some considerable time
to know whether the data could be
retrieved. On it transpiring that it was not possible to retrieve
that data, I had to commence
de novo preparing this judgment. In
order not to cause further prejudice to the appellants and the State,
by further delay, we
deliberated about the merits of the matter and
submissions made and agreed that the magistrate erred in finding the
appellants
guilty, that the appeal must succeed and that the
conviction and sentence should be set aside. As part of our effort to
avoid further
delay and prejudice to the appellants, we deemed it
prudent to deliver our order to that effect, with the reasons to
follow. These
our reasons for that order.
[3]
The appellants were charged with the two counts of assault with
intent to do grievous bodily harm in that: Count 1:
On
or about 14 January 2004, at Bester Brown Centre in Nelspruit, they
wrongfully and intentionally assaulted Mr. Bongani Peter
Vilakazi, by
hitting him with first, kicking him, hitting him with hard object,
all over the body, face and head;
Count
2:
On
or about 14 January 2004, at Bester Brown Centre, in Nelspruit, they
wrongfully and intentionally assaulted Ms Thandiwe Susan
Mbuyane by
kicking her on her kidneys.
[4]
The appellants were found not guilty in respect of count 2 and were
discharged at the end of the trial. They were, however .convicted
and
sentenced in respect of count 1 and sentenced as stated hereinabove.
[5]
The appellants were duly represented through out the trial. They
pleaded not guilty and did not disclose their defence. The
State lead
the evidence of the foilowing witnesses: Mr. Vilakazi, the
complainant in count 1, Ms Thandiwe Susan Mbuyane, the complainant
in
count 2, Ms Helda Johann Aborough; Dr Lawrence Mathebula and Ms
Elzaan Groenwald. After the close of State case, only the first
appellant testified, whereafter the second appellant closed his case
without testifying or calling any witness.
[6]
I do not intend to chronicle in minute detail all the evidence that
was lead in this matter. The evidence of Mr. Vilakazi is
that the
first appellant hit him with clenched fists and kicked him. As he was
falling backwards, he fell on the second appellant
who was behind
him. The second appellant hit him and two of the appellants' friends
also joined in the assault and hit him on his
jaw and also kicked
him. At one stage he landed on the ground and was kicked several
times. Friends of the appellant trampled on
him as he was on the
ground.
[7]
According to Ms Mbuyane, the appellants, were four in number, met the
first complainant in a passage. The first appellant hit
the first
complainant with clenched fists and also kicked him. She knows both
the appellants but not the two boys they were with.
She rushed to the
scene to assist the first complainant. The second appellant kicked
her on her tummy as she was grabbing the first
complainant. At that
stage the first appellant had the first complainant in his legs
1
.
[8]
According to Ms Alborough, the accused was hit with a chair by the
first appellant. The other person who was with the first
appellant
also grabbed a chair and hit the first complainant therewith. The
first complainant was all along standing when the assault
took place.
The second complainant came to the scene and called on the fighting
people to stop. The first appellant also kicked
the first complainant
while he was on the ground
2
.
[9]
The evidence of Dr. Mathebula merely confirmed that he examined the
first complainant and completed the J88 form which reflected
that he
had a swollen upper lip, tenderness on the neck, soft tissue on the
upper lip, neck, the chest and the genital area. Dr
Groenewald's
evidence related to the examination of the second complainant. For
purposes of this judgment, as it would appear herein
below, there is
no need to say more about her evidence.
[10]
According to the first appellant, he had witnessed a group of men
outside the shops trying to open a vehicle belong to someone
who was
doing signaging at the shopping complex. When he confronted these
men, one of them produced a knife threatened him therewith.
He
produced his service pistol and the men fled. He went back into the
shopping complex to his shop. He saw the first complainant
speaking
to the second complainant. He told the first complainant that he is
not doing his work when he is busy talking: the first
complainant
became abusive and even followed him to his shop making noise. He
guided the first complainant out of his shop. The
complainant hit him
in the face, cutting open his mouth. He pushed the first complainant
back and they started punching each other.
His girlfriend pulled him
back. He was bleeding profusely from his mouth. He rinsed his mouth
at the back of his shop. There were
a lot of people milling around.
His girlfriend telephoned his brother, who arrived thereafter and
took him home. He did not witness
the assault of the first
complainant by other people as he was at the back rinsing his mouth.
The whole incident happened very
fast.
[11]
It is trite that the trite that a court of appeal has limited powers
to interfere with the trial court's factual findings,
unless they are
palpably wrong and the court has misdirected itself
3
.
[12]
It is also trite that the State bears the onus of proving the guilt
of the accused beyond reasonable doubt. The accused person
bears no
onus of proving his innocence, it suffices if his version is
reasonably possible true, even if the court des not believe
him, he
is entitled to his acquittal
4
.
[13]
What is important is that it is common cause that there was a fracas
on the night in question, between the first appellant
and the first
complainant. The magistrate found that the appellants were the
aggressor who assaulted the first complainant. The
Magistrate
accepted the evidence of the first complainant that he was assaulted
by the appellants. The assault upon the first complainants
is
supposed to have been witnessed by the complainant in the second
charge. She too testified that she was also assaulted by the
appellants and that the complainant in the first count witnessed the
assault on her.
[14]
The Magistrate rejected the version of the appellants that it was Mr.
Vilakazi who assaulted them and that they acted in self
defence. The
Magistrate found that M. Alborough's evidence materially contradicted
that of the first and second complainants. He
also found that the
evidence of Ms Albough somehow corroborates that of the first
appellant in respect of his testimony that the
second appellant was
not there.
[15]
The Magistrate found that the State did not prove its case against
the appellants in respect of the second count and found
the
appellants not guilty on this count. The Magistrate, however,
rejected the version of the appellants and convicted them on
count 1.
[16]
It was not refuted by the State that the first appellant received
treatment. The magistrate found that the evidence of Ms Alborough
materially contradicted that of the complainants. The import of these
findings is that the State's case was then premised on evidence
of
witnesses who contradicted one another. The second complainant had
testified that she was kicked by the second complainant.
Ms Alborough
did not testify about the assault of the second complainant. The
second complainant said nothing about the first complainant
being
assaulted with a chair, as testified by Ms Alborough.
[17]
The Magistrate was correct in finding that the were material
discrepancies in the evidence of Ms Alborough and that of the
complainants. The State's case was premised on the evidence of
witnesses who materially contradicted themselves, it is wrong, in
my
view, to selectively accept that evidence of the State, which impale
an accused person. The State's case must be seen as a whole.
If the
witnesses conflict materially on their evidence, that puts a question
mark on their veracity and on their observation of
the events they
testify about, as a collective and individually, bearing in mind the
version of the accused person. It can be accepted,
from the evidence
as a whole, that there was a fracas that took place and that it
happened very fast. The question to be asked
is whether the version
of the appellants must be discounted. Is it not reasonably possibly
true? What is of importance from the
evidence of the first
complainant and Ms. Albourough is the fact that there were other
people who joined in the fracas. The possibility
cannot be excluded
that the first complainant was also assaulted by the other persons
who joined in the fracas and not by the second
appellant. The version
of the first appellant cannot be, in my view, be said not to be
reasonably possibly true. Even if one does
not believe him, if the
version is reasonably possibly true, he is entitled to his acquittal.
In my view the Magistrate
misdirected
himself in accepting the evidence of the State, regardless of the
material contradictions in it, and finding that the
State has proven
the guilt of the appellants beyond reasonably doubt. He should have
found that the version of the appellants is
reasonably possibly true,
should have given him the benefit of any doubt he entertained in that
regard and thus found him not guilty
and acquitted him.
[18]
It follows, in my view, that if the State evidence is inadequate to
convict the first appellant, on account of material discrepancies
in
it, it is equally inadequate to convict the second appellant, even
though he did not give evidence.
[19]
It is for the aforesaid reasons that I recommended the following
order:
1.
That the appeal of both appellants against the conviction and
sentence by the Magistrates Court at Nelspruit on 20 May 2005 is
upheld.
2.
That both the conviction and sentence of both appellants are set
aside.
3.
That the order of the magistrate is substituted with the following:
"That
both accused are found not guilty and discharged."
MUVUNDLA
JUDGE
OF THE HIGH COURT
I
agree and it is so ordered.
JNM
POSWA
JUDGE
OF THE HIGH COURT
Order
delivered on 27 May 2011
Reasons
delivered on 26July 2011
1
Vide
paginated page 34
2
Vide
paginated page 35
3
Vide
S v Francis at
1999 (1) SACR 198
at 204c.
4
Vide
S Mafiri
2003 (2) SACR 121
(SCA) at 125c-e.