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[2023] ZAECBHC 29
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S v Salusalu - Review Judgment (CA&R 23/2023) [2023] ZAECBHC 29; 2025 (1) SACR 554 (ECB) (7 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION,
BHISHO
CASE NO: CA & R:
23/2023
Delivered on 7
September 2023
In the matter between:
THE STATE
and
SABELO
SALUSALU
REVIEW JUDGMENT
Bloem J
1.
The matter came on review in terms of
section 302(1)(a)
of the
Criminal Procedure Act 51 of 1977
.
The accused was charged under
section 17(1)(a)
of the
Domestic
Violence Act 116 of 1998
with having contravened the prohibitions
contained in a protection order. Despite his plea of not
guilty, he was convicted
as charged and sentenced to imprisonment.
2.
It is common cause that on 13 January 2020
the magistrate’s court at Middledrift issued an interim
protection order at the
instance of the accused’s mother, the
complainant. In terms of that interim order, the accused was
prohibited from
physically, verbally or psychologically abusing and
intimidating the complainant; entering her premises; and demanding
money from
her. The interim protection was made final on 18
February 2020. The accused was arrested and charged with having
contravened
the prohibitions contained in the protection order on 20
January 2023 “
by insulting the
complainant [by] swearing at her by her private parts and chasing
her
”. The magistrate found
the accused was in contravention of the prohibitions contained in the
protection order and convicted
him, as charged. The accused was
sentenced to 18 months’ imprisonment.
3.
The accused was not charged with having
entered the complainant’s residence or that he demanded money
from her, in contravention
of two of the prohibitions contained in
the protection order. The magistrate was accordingly required
to consider only whether
the state proved that the accused
physically, verbally or psychologically abused or intimidated the
complainant. There was
no evidence that the accused physically
abused or intimidated the complainant. What should be
determined is whether the magistrate
correctly found that the state
proved beyond reasonable doubt that he did so verbally or
psychologically.
4.
The complainant testified that she was at
home on 20 January 2023 when the accused arrived and enquired from
her what the outcome
was of a meeting that his family members were
supposed to hold. They were meant to discuss his demand for
money from her
and calling her a liar, which caused “fights”.
She told him that the meeting had not taken place. She
testified
that the accused shouted and swore at her and swore at her
neighbour.
5.
The next state witness, Nomfuneko Thamba,
testified that on the day in question she was doing laundry when the
complainant and her
daughter arrived at her house. She heard
the complainant saying to her daughter that the accused was
misbehaving by demanding
a sword. She did not hear or see the
accused saying or doing anything on the day in question.
6.
The accused testified that before the day
in question he went to the complainant’s house because she had
called him during
January 2023 to repair a kraal. While
cleaning the house on the day in question, he asked the complainant
where his sword
was, as he did not see it in the house where he had
left it the previous night. She told him where she had put
it.
He did not find it. She retrieved the sword and
put it next to his bed where he had placed it before.
After a
while, the police arrived and told him that they were looking
for the sword. He handed it to the police officers. He
was arrested. He denied that he had an argument with the
complainant on that day.
7.
There were two versions before the
magistrate. The state’s version, based on the
complainant’s evidence, was that
on the day in question the
accused arrived at her home and made an enquiry regarding a family
meeting. He also asked
her about the whereabout of his
sword. He insulted her. She went to her neighbour, Ms
Thamba, and thereafter to the
police station. The accused, on the
other hand, testified that he went to the complainant’s house
before the day in question
because she had called him to repair the
kraal.
8.
Having looked at the two versions, the
magistrate convicted the accused on the basis that he was unable to
explain why the complainant
testified that he had insulted her.
The magistrate’s finding in this regard, which forms the
ratio
of his judgment, reads as follows:
“
When
the accused denied having insulted the complainant, on
cross-examination he was asked why would the complainant, who was
living
with him for months prior to the date of the incident, allege
now that he has insulted her. His response was he did not
know.
With all of the above considerations, it is clear to this
court that the accused was indeed in contravention of the domestic
violence
protection order issued on 18 February 2020 and made himself
GUILTY
of
the crime
.”
9.
I have a difficulty with the way in which
the magistrate arrived at the decision to convict the accused. It is
impossible to understand
what “
the
above considerations
” are to
which the magistrate referred, when the judgment consisted only of a
summary of the evidence given by the witnesses
and the above
quotation.
10.
The
magistrate placed an onus on the accused to advance a reason why the
complainant testified that he insulted her when, according
to him, he
did not insult her. There is no such onus on the accused.
In
S
v BM
[1]
it
was held that the approach, that accused persons are necessarily
guilty because the complainants have no apparent motive to implicate
them falsely and they are unable to suggest one, is fraught with
danger. That danger was articulated as follows by Mahomed
J (as
he then was) in
S
v Ipeleng
:
[2]
“
It
is dangerous to convict an accused person on the basis that he
cannot advance any reasons why the State witnesses
would
falsely implicate him. The accused has no
onus
to
provide any such explanation. The true reason why a State witness
seeks to give the testimony he does is often unknown
to the accused
and sometimes unknowable. Many factors influence prosecution
witnesses in insidious ways. They often seek to curry
favour with
their supervisors; they sometimes need to placate and impress
police officers, and on other occasions they nurse
secret
ambitions and grudges unknown to the accused. It is for these reasons
that the Courts have repeatedly warned against the
danger of the
approach which asks: 'Why should the State witnesses have falsely
implicated the accused?”
11.
To
secure a conviction, the onus is on the state to establish beyond
reasonable doubt that an accused person is guilty. An
accused
person cannot be convicted if there is a reasonable possibility that
his or her version might be true. A determination
of whether
the state proved its case beyond reasonable doubt must be based on a
consideration of all the evidence.
[3]
12.
It is against the above background that it
must be considered whether the magistrate correctly found that the
state proved beyond
reasonable doubt that the accused verbally or
psychologically abused or intimidated the complainant by swearing at
her. The
undisputed evidence is that, after the accused had
made enquiries about the family meeting, he asked the complainant
where his
sword was. His evidence was that he had left the
sword in a room the night before, whereas the complainant said that
he had
left it in that room when he last stayed there. The
evidence as to what happened thereafter is unclear. The
complainant’s
evidence was that, when the accused asked about
the whereabouts of the sword, she told him that it was in that room,
albeit that
she had covered it and hidden it in that room. He
became angry and went to collect the sword. At that stage she
left
home to go to the police station because she did not know what
he was going to do with the sword. He was angry at that stage
and her experience taught her not to trust him when he was angry.
On the complainant’s own evidence, she left her premises
before
the accused did anything. Although she testified that he was
angry, it is unclear what caused his anger, to whom it
was addressed
and how he expressed his anger.
13.
At one stage, the complainant testified
that he swore at her. Only she gave evidence relating to the alleged
swearing. She
testified that after she had told the accused
that the family meeting had not taken place, he said that she was a
liar. That
was an insult, according to her. But that is
not the insult with which he was charged. According to the
charge sheet
he insulted her by referring to “
her
private parts and chasing her
”.
The complainant did not testify that the accused referred to her
private parts. Her direct evidence, relevant
to being chased,
was that she ran away because the accused “
was
angry. He did not chase me, Your Worship. I noticed or I
saw that he is going to chase me, Your Worship, then I
ran to the
neighbours
.”
14.
In all the circumstances, there was no
evidence to support a finding that on 20 January 2023 the
accused insulted the complainant
by referring to her private parts
and thereby either physically, verbally or psychologically abused or
intimated the complainant
in any way. The state accordingly
failed to establish its case against the accused beyond reasonable
doubt. The conviction
and accordingly sentence must be set
aside.
15.
In
the result, it is ordered that the conviction and sentence of the
accused be and are hereby set aside.
GH BLOEM
Judge of the High
Court
I agree.
MJ LOWE
Judge of the High
Court
[1]
S
v BM
2014
(2) SACR 23
(SCA) at par 25.
[2]
S
v Ipeleng
1993
(2) SACR 185
(T) at c-d.
[3]
S
v Van Der Meyden
1999
(1) SACR 447
(W).