About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 294
|
|
Kruger v S (A71/2022) [2022] ZAFSHC 294 (27 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number: A71/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ALWYN
KRUGER
Appellant
and
THE
STATE
Respondent
CORAM: REINDERS,
J et BOONZAAIER, AJ
JUDGMENT
BY: REINDERS,
J
HEARD
ON: 3
OCTOBER 2022
DELIVERED
ON: 27
OCTOBER 2022
[1]
The appellant was convicted in the magistrate’s court on a
charge of
crimen iniuria
and assault. Both incidents according
to the annexures to the charge sheets occurred on 29 May 2020 in
Bloemfontein. The first
charge avers that the appellant impaired the
dignity of the complainant ‘by saying that she is a “kaffer”.’
The second charge to wit the assault was that on the same date and
place the appellant pushed a table and hit the complainant on
her
knee.
[2]
The matter was heard before the learned magistrate who ultimately
convicted the appellant
on both counts. The appellant was sentenced
on the first count to a suspended sentence of six months’
imprisonment and on
the second count to a fine of R 2 000-00 or
two months’ imprisonment.
[3]
The appellant was granted leave to appeal by the trial court against
the convictions
on both counts.
[4]
The convictions were based on the evidence of the complainant who was
a single witness
in respect of the two incidents which occurred,
according to her evidence, at the same time. The state also adduced
the evidence
of Dr T Schoeman who examined the complainant on 2 June
2020.
[5]
The appellant testified and called two witnesses. The magistrate
found the appellant’s
version to be inherently improbable and
rejected his version.
[6]
It is the appellant’s argument that the magistrate erred in
finding the single
witness for the state’s evidence to be
sufficient, reliable and corroborated to serve as basis for the
convictions and at
the same time rejecting the appellant’s
version as being false beyond a reasonable doubt.
[7]
Sec 208
of the
Criminal Procedure Act 51 of 1977
provides that a
court may convict an accused on the evidence of a single, competent
witness. In
S v Sauls and Others
1981 (3) SA 172
(A)
it was
held that the presiding officer should weigh the evidence, consider
the merits and demerits and then decide whether the
evidence of the
single witness is trustworthy, notwithstanding the shortcomings,
defects or contradictions therein and ultimately
that the court is
satisfied that the truth has been told (at 180h-j).
[8]
Applying the above principle the onus remained on the state to prove
its case beyond
a reasonable doubt. The appellant on the other hand
had no onus. If his version is reasonably possibly true, he is
entitled to
his acquittal.
S v Mbuli
2003 (1) SACR 97
(SCA).
[9]
The complainant testified that on the day in question she was
employed at NTT Nissan
and was cleaning and making coffee.
Approximately 10:00 that morning the appellant called her and told
her to go upstairs because
there was no coffee, sugar and “stuff”.
She went upstairs where the appellant shouted at her certain
instructions,
amongst others to clean the canteen and keep it clean
and ensure that there is always coffee, milk and tea. She told the
appellant
that it was not her job to work upstairs as her job was
downstairs to make tea and coffee for clients and went downstairs
again.
Later she estimated that the appellant (and other employees)
were finished and went upstairs to sweep and mop the floor of the
canteen. Whilst mopping the appellant entered and stood beside a
table. The appellant pulled the table and told her furiously: “you
kaffer” how many times should I tell you what you are supposed
to do”. While the appellant was saying the aforementioned,
he
pushed a table against her knee resulting in her knee bleeding and
injured.
[10]
During cross-examination the complainant estimated the time of the
aforementioned incidents to
be around 11:00 as her recollection was
that she heard the news on the radio. When confronted with video
footage taken by close
circuit cameras installed at the dealership,
she confirmed the correctness of the captured video footage at 10:00
where she received
instructions from the appellant to fill up the
canisters and clean upstairs. She acknowledged the images of her with
a tray going
upstairs to the canteen (due to appellant’s
instructions) and confirmed her coming down from the canteen carrying
the tray
(leaving the appellant and two other employees behind in the
canteen). She admitted that according to other clips of the video
footage she could also be seen between 10:20 and 11:08. In the last
mentioned video footage of the reception area she carries a
red
plastic bag whilst appellant is visible in his office. She stated
that the video showed her after the crimes had been committed.
[11]
The complainant did not dispute the video footage of the appellant’s
office in the reception
area showing appellant to be in his office
until 11:00 where after his movements were confirmed to be in the
reception area, the
car parts counter area and the workshop and back
to his office at 11:08, the time when the complainant appeared from
the canteen
with the red plastic bag. The importance of the above is
that if whatever is portrayed in the video footage is reasonably
possibly
true, the complainant’s version could not be true as
the video footage shows that appellant was not near the canteen at
11:00
as testified by the complainant. The complainant during
cross-examination obviously realised this inconsistency, and upon
being
confronted therewith amended her evidence from originally
admitting the correctness of the video footage to testifying that the
video footage must be wrong. It should be remembered that the state,
who bears the onus throughout, did not during the state case
adduce
the evidence of the video footage. It was the appellant, who bore no
onus, who adduced the evidence through the testimony
of the
technician responsible for all the computer networks,
data, cameras and telephone communications system at the
building
where the alleged offences took place.
[12]
The magistrate admitted the video footage as evidence, however had
his concerns whether the time
portrayed thereon was correct. The
problem that I see with this approach is that the magistrate in this
way placed an onus on the
appellant that he did not carry. It was
only for the appellant to place evidence before court which might
reasonably possibly be
true. In this respect, the appellant’s
testimony as to his movements and timeline thereof corresponds with
the video footage
which was not only attested to by the technician,
but of which the correctness originally in cross-examination was
confirmed by
the state witness.
[13]
I therefore find it difficult to conclude that appellant’s
version could have been rejected.
Apart therefrom, the complainant
was not a satisfactory witness in all respects. She not only
contradicted her own evidence, but
did not really have an explanation
for the fact that the video footage did not support her version.
There was a serious discrepancy
between the account of the events as
filled out by her originally on the grievance form in respect of the
alleged injury she had
sustained. In testimony she testified that the
table was pushed against her knee whilst she was mopping. In the
grievance form
it was stated that the table was pushed against her
hip. In cross-examination she gave various reasons for the
discrepancy, stating
that her memory capacity has not been
complete since the incident, that she was confused and even that she
was coerced
to make the statement. There were also differences
between the statement made to the police and her evidence in court.
These discrepancies
were explained by her to be as a result of
confusion and that she did not know where she was on the day the
statement was made
to the South African Police Services.
[14]
The evidence of Dr Schoeman did not assist the state case much.
Contrary to the complainant’s
evidence, the doctor testified
that the complainant walked normally without a limp, no swelling and
confirming no cut on the knee.
At best, on examination of the
complainant a bruise could be identified on the right knee.
[15]
It is evident in my view that due to the afore mentioned reasons, the
magistrate could not have
been convinced that the truth has been told
by the complainant and that the evidence of the single witness could
muster the test
as set out in
S v Sauls
supra
.
The admitted video footage not only supports the version of the
appellant, but indeed confirms his version. Against the afore
mentioned background I am of the view that the learned magistrate
erred in rejecting the appellant’s version and that the
appellant should have been acquitted.
[16]
Having reached the above conclusions, I am therefore convinced that
the appeal should succeed.
The Director of Public Prosecutions did
not attempt to persuade me otherwise. Wherefore I make the
following order:
16.1
The appeal is
upheld.
16.1.1
The convictions on
both counts 1 and 2 is set aside and replaced with the following:
“
The
accused is found not guilty on counts 1 and 2 and discharged.”
REINDERS,
J
I
concur.
BOONZAAIER,
AJ
On
behalf of the Appellant:
Adv.
JJ Buys
Instructed
by:
Willie J Botha Inc.
On
behalf of the Respondent:
Adv. BG Claassens
Instructed
by:
Director of Public
Prosecutions