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[2024] ZAECMKHC 37
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Baisley v S (CA & R 244/2022) [2024] ZAECMKHC 37 (28 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO.: CA & R 244/2022
In the matter between:
CLAIRE
BAISLEY
Appellant
and
THE
STATE
Respondent
APPEAL JUDGMENT
GQAMANA
J
Introduction
[1]
The appellant was arraigned in the Magistrate’s Court, East
London (the Court
a
quo)
,
on two counts of assault. The appellant was convicted of only
one count
[1]
and
was sentenced to pay a fine of R 5000.00 or 5 months’
imprisonment which was wholly suspended for 3 years on condition
that
she is not convicted of assault committed during the period of
suspension. The court
a
quo
also declared in terms of section 103(2) of Act 60 of 2000 the
appellant to be unfit to possess a firearm.
[2]
The application for leave to appeal was refused, but leave to appeal
on both conviction and sentence
was granted to this Court on
petition.
[2]
[3]
The appellant contends that the court a quo committed a misdirection
in its findings that, the case
against the appellant was proved
beyond reasonable doubt. In advancing the appellant’s case it
was argued that, had the court
a
quo
applied the cautionary rule in respect of a single witness
[3]
,
it should have found that the complaint’s evidence was infested
with serious and material contradictions.
[4]
In
S
v Leve,
[4]
this
Court pointed out that, if the trial court does not misdirect itself
on the facts or the law in relation to the application
of a
cautionary rule, but instead, demonstrably subjects the evidence to
scrutiny, the court of appeal would not readily
depart from the
trial court’s conclusions
[5]
.
[5]
The point of departure is that: in terms of
section 208
of the
Criminal Procedure Act 51 of 1977
, an accused person may be convicted
on the evidence of a single witness. Therefore a conviction would be
sustainable based on the
evidence of the single witness; if such
evidence is clear and satisfactory in all material respects.
[6]
In
R
v Mokoena
[6]
,
the
court said that:
“
Now
the uncorroborated evidence on a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by
[the section], but in my opinion that section should only be relied
on where the evidence of a single witness is clear and satisfactory
in all material respect. Thus the section ought not to be invoked
where, for instance, the witness has an interest or bias adverse
to
the accused, where he has made a previous inconsistent statement,
where he contradicts himself in the witness box, where has
been found
guilty of an offence involving dishonesty, where he has not had
proper opportunities for observation, etc.”
[7]
In
Rugnanan
v S
[7]
the
SCA remarked that the cautionary rule does not require the evidence
of SA single witness must be free of all conceivable criticism,
but
the requirement is that it should be substantially satisfactory in
relation to the material aspects or be corroborated.
[8]
The complaint’s evidence was that the appellant assaulted her
on the 9th of
August 2019 by kicking her with her feet
[8]
and
again on 11 September by pushing her
[9]
.
Both these incidents allegedly happened at the home of the
complainant’s son in Berea, East London. The appellant was also
residing at the same house, whilst the complainant was residing on
the outside flatlet on the same property. The first assault
incident
was triggered by an argument between the complainant and the
appellant which had happened a day or so before the alleged
assault.
[9]
On the date of the first assault, the complainant confronted the
appellant about harassing
her granddaughter. When she
approached the appellant, the latter was sitting on the verandah of
the main house. The
appellant ignored her at first. Despite
that, the complainant confronted her and advanced closer to her
seeking her attention.
Again the appellant minded her own business
and ignored the complainant. Suddenly the appellant lashed out and
kicked the complainant
in the stomach, three to four times. She
steadied herself by the table. The appellant was also swearing at her
and the complainant
left her and went back to her flatlet. The
complainant only approached the doctor on 11 August 2019 because it
was too sore for
her to walk to the doctor before that day.
[10]
The appellant obtained a protection order against the complainant
after the first incident.
[11]
A month later
[10]
a
similar incident occurred where the complainant pushed her. The
second incident allegedly occurred in the main house and was diffused
by one
Sylvia
,
a domestic worker employed by the complainant’s son.
[12]
The appellant denied that she assaulted the complainant on both
occasions. Her evidence
on count 1 was that, the complainant
approached her and was shouting at her. She ignored her and continued
minding her own business
playing games on her cellphone while she was
seated by a glass table with her feet on one chair and her bum on the
other chair.
Her reaction angered the complainant and the
latter approached her closer and picked up a coffee mug that was on
the table. The
complainant wanted to hit her with that mug and the
appellant veered her off. She put her foot up to brace herself.
The appellant
denied kicking the complainant. Under cross-examination
the complainant’s version was not put to the appellant.
[13]
In
S
v Manicum
[11]
Broome
DJP (sitting with Booysen J) said that:
“
The
fact the appellant was not cross examined is something which must
enter the scales. It has been said time and again that if
evidence is
not challenged in cross examination, it may be accepted without
further ado. I refer to a judgment in the case
of Sv Xoswa and
thers 1965(1) SA 267 (C) at 273C-E where his Lordship, Van Wanes J,
as he was then said:
‘
The
prosecutor left the statement unchallenged. I agree with the remarks
of the Full Bench of the Transvaal Provincial Division
in the case of
Rev Ngema
1960 (2) SA 263
(T), that where the State intends to
discredit the evidence of an accused to meet the State’s attack
….While it does
not follow in every case that the failure to
cross examined would necessarily be fatal to the State’s case ,
nevertheless
I agree with the attitude taken up by the State
representative, which was that in the particular circumstances of
this case the
absence of any challenge in cross examination by the
prosecutor…………leaves the appellant’s
guilt
in some doubt’.
The same position
applies in the present case. The position is also dealt with in
Hoffmann and Zeffert The South African Law of
Evidence 4th ed at 461
under heading ‘Failure to cross-examine’ and the learned
author says:
‘
Failure
to cross-examine may therefore prevent a party from disputing the
truth of the witness’s evidence.’
[14]
The court
a quo
in dealing with the cautionary rule simply
stated that the evidence of the complaint on count 1 was “
clear
and straightforward. There is nothing that suggests or creates the
doubt in the minds of the Court in her evidence.”
The
court
a quo
then accepted her evidence as satisfactory and
rejected the appellant’s evidence.
[15]
The evaluation of the evidence of a single witness requires the trial
court to consider such
evidence in the context of and together with
all other evidence adduced at the trial to prove the guilt of the
accused beyond reasonable
doubt
[12]
.
The
conclusion reached by the court must account for all the evidence.
The complainant’s evidence was riddled with so much
improbabilities. The assault allegation in the context of and
together with all the other evidence does not make sense. It is so
improbable that the appellant would have been able to kick the
complainant three to four times while seated. The injuries
reflected on the J88 were not a corroboration of the complainant’s
version. Such injuries are not consistent with her
version if
one takes into account her stature and her weight. If the complainant
was kicked three to four times in the manner described
by her, more
serious injuries would have been expected under such circumstances.
[16]
In light of the above the court
a quo
committed a misdirection
in its conclusion that the complainant’s evidence was “
clear
and straight forward”.
[17]
In addition, it is trite that, in criminal cases, the onus is upon
the State to prove the guilt
of the accused beyond reasonable doubt.
The accused has no onus to prove her innocence. Where there is
a reasonable possibility
that the accused’s version is
reasonable possibility true she is entitled to the benefit of doubt.
[18]
In this matter, the court
a quo
failed to give due weight to
the fact that the appellant was not cross-examined on her version
meaning, the truth of her evidence
was not disputed. The authorities
referred to in paragraph 13 above supports my view that, in the
absence of any challenge by the
prosecution of the evidence of the
appellant leaves her guilt in some doubt.
[19]
For all the above reasons, the appeal must be upheld, and both the
conviction and the resultant
sentence are set aside.
[20]
In the result, the following order is issued:
1.
The appeal is upheld.
2.
The conviction and sentence of the appellant are set aside.
N GQAMANA
JUDGE OF THE HIGH
COURT
I agree:
A GOVINDJEE
JUDGE OF THE HIGH
COURT
APPEARANCES:
Counsel
for the Appellant:
Adv
R Simms
Instructed
by:
C/O
Whitesides Attorneys
Makhanda
Counsel
for the Respondent:
Adv
A Nohiya
Instructed
by:
Director
of Public Prosecutions
Makhanda
Heard
on:
14
February 2024
Judgment
Delivered on:
28
March 2024
[1]
On
count 1.
[2]
The
order was granted by Bloem and Malusi JJ on 14 April 2023.
[3]
Ms
Ruth Schaffer, (the complainant)was the only that testified on
behalf of the State during trial.
[4]
2011
1 SACR 87
(ECG) at 18.
[5]
See
also S v Prinsloo and others
2016 2 SACR 25
(SCA) at 183.
[6]
1932
OPD 79
at 80.
[7]
Rugnanan
v S (259/2018)
[2020] ZASCA 166
(10 December 2020) (unreported
judgment, SCA).
[8]
Count
1.
[9]
Count
2.
[10]
On
11 September 2019.
[11]
1998
2 SACR 400
(NPD) at 404e-j.
[12]
Minister
of Basic Education, Sport and Culture v Vivier NO and another
2012 2
NR 613(SC)
at [17].