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2021
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[2021] ZALMPPHC 49
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Choshi and Another v S (A07/2020) [2021] ZALMPPHC 49 (30 August 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: A07/2020
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED
In
the matter between:
DOCKRY
CHOSHI
FIRST
APPELLANT
CABRY
CHOSHI
SECOND
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The two appellants appeared before magistrate M Komape at Seshego
magistrate court on two counts of assault
with intent to do grievous
bodily harm, and one count of contravention of section 6 read with
section 17 of Act 116 of 1998 (Domestic
Violence Act). Both
appellants have pleaded not guilty to all the three counts that they
were facing. Both appellants appeared
in person. Both appellants were
found guilty of two counts of assault GBH, whilst the first appellant
was found not guilty and
discharged on the count of contravention of
a protection order. The second appellant was found guilty of the
count of contravention
of a protection order. The appellants are
appealing against conviction only. The appeal is with the leave of
the court a quo.
[2]
The first witness to testify for the State was Margaret Teffo (first
complainant). She testified
that she knows the appellants, and that
they are both brothers. That their father married her sister
Josephine Choshi (second complainant
in count 2 and 3) after their
mother passed away. On 11
th
June 2017 she was with second
complainant in her bedroom at about 20h00, and when she looked
through the camera she saw people
fighting outside the house. When
they went outside to go and check, they found that it was the first
appellant and McDonald who
were fighting. McDonald is the second
complaint’s child. The complainants told them to stop
fighting as they were children
from the same parents, but they did
not listen to them and continued fighting.
[3]
She went back to the house, and as she was going back into the house,
the first appellant phoned
his brother (second appellant). The second
appellant arrived been in possession of something which looked like
an iron rod or plank.
Both appellants went to the second complainant
room where they found the first and the second complainants. On
arrival in the room,
the first appellant went to the first
complainant, whilst the second appellant went to the second
complainant. The first appellant
started hitting first complainant
with fists. She could not see what the second appellant was doing to
the second complainant as
she was been assaulted by the first
appellant who also pushed her outside the house. When the first
appellant was pushing her outside
the house, the second appellant
came and hit her with the object he was having and she fell down.
Whilst on the ground, the second
appellant hit her on the side of her
head with that object. When she got up, she saw their uncle Elias
Choshi who told the appellants
to kill them.
[4]
Police were called, and when the police arrived, they told
complainants to go to the hospital.
She does not remember how the
fight stopped, as by the time the police arrived the fight had
stopped, and they were already running
to the hospital. She was
swollen on the side of her head and chest as a result of the assault.
The first complainant further testified
that the first appellant was
staying with the second complainant and McDonald, whist the second
appellant was having his own homestead.
Both appellants cross
examined the first complainant.
[5]
The State’s second witness to testify was Mcdonald Choshi. He
testified that he knows the
two appellants and he and the appellants
are brothers but with different mothers. That on 11
th
June
2017 at about 20h00 he was coming from the shops and going home. He
entered the house through the kitchen and found the first
appellant
standing on a chair changing an electric bulb. As he was about to
pass the first appellant, the first appellant hit him
with an
electric bulb on his head and a fight ensued. As they were fighting,
the first and second complaints came and asked them
why they were
fighting. They continued fighting until they stopped the fight on
their own. When they stopped fighting, he was bleeding
on his
forehead, and he went to his room to stop the bleeding.
[6]
When he was in his bedroom, the first appellant phoned the second
appellant. When he got out of
his room, he found the two appellants
in the second complaint’s room. On entering the second
complainant’s room he
saw the second appellant holding
something black in colour, but could not tell what that thing was. He
saw the two appellants assaulting
both the complaints. However, he
just peeped and saw the two appellants assaulting the complaints and
he went outside to go and
seek for help. He saw the second appellant
having something like a stick hitting both complainants whilst the
first appellant was
pushing the two complaints out of the house. When
he came back to the house, the two appellants pushed all of them out
of the yard.
[7]
When they were out of the yard, community members arrived at the
house. When the community members
arrived, the second appellant was
still busy assaulting the first complainant until she fell down. By
then the first appellant
was pushing them out of the yard. After the
first appellant had succeeded to push them out of the yard, he closed
the gate. Outside
the yard as it was dark, he could not see the
appellants assaulting anyone. After the first appellant had closed
the gate, both
appellants went out of the yard and left.
[8]
Under cross examination by the second appellant when it was put to
the witness that the
first complainant testified that the
second appellant did not assault her, the witness stated that he just
observed and ran outside.
The witness further stated that he saw the
second appellant assaulting both complainants.
[9]
Josephine Choshi was the third witness to testify for the State. She
testified that on 11
th
June 2017 she was in her bedroom
with the first complainant. As she was in her bedroom, she checked
the cameras and saw a chair
been thrown out of the house. She
requested the first complainant that they go and check what was
happening. When the two complainants
arrive in the kitchen, they
found McDonald fighting with the first appellant. The two
complainants tried to stop them, but they
continued fighting, and she
phoned the police. The first appellant phoned the second appellant
telling him that people were assaulting
him.
[10]
The second appellant arrived in possession of a black object which
looked like a stick. On arrival
the first appellant grabbed the
second appellant and told him not to assault them as they were going
to curse or bewitch the wounds
where he might have assaulted them.
The second appellant asked the first appellant as to why he had
phoned him and that he will
assault him. The first appellant let the
second appellant go, and the second appellant followed the second
complainant to her bedroom.
On entering the room, the second
appellant hit the second complainant with that stick on her forehead,
left arm and lower abdomen.
Thereafter the second appellant pushed
them out of the house, and that the first appellant did not
participate in pushing them
out of the house, even though the first
appellant had attempted to assault the first complainant with fists.
[11]
The second complainant further testified that on 25
th
June
2015, she was granted a protection order by Seshego Magistrate
against the second appellant. The second complainant further
testified that the protection order was later made final and that the
second appellant was present when it was made final. The
second
complainant was cross examined by both appellants. Thereafter the
State proceeded to close its case.
[12]
The first appellant took the witness stand and testified under oath.
He testified that on 11
th
June 2017 at about 20h00 he was
busy replacing an electric bulb when McDonald arrived. The first
appellant had climbed on a chair
in order to replace the electric
bulb. On arrival McDonald asked the first appellant whether his
mother (first appellant) had left
a chair before she passed on.
Thereafter McDonald pulled that chair which the first appellant had
climbed, and the first appellant
fell on the ground. McDonald picked
up a brick and hit the first appellant with it at the back of his
head. Whilst on the ground
the first appellant heard the first and
second complainants saying this dog wanted to be taught a lesson.
[13]
The first appellant stood up and he was bleeding from his nose.
McDonald picked up a coffee table and hit
him at the back with it.
The first appellant tried to phone the second appellant but could not
succeed. As the first appellant
was bleeding profusely, he went to
his bedroom. Whilst in the bedroom he phoned the second appellant to
come and fetch him as he
was injured. On arrival of the second
appellant, the first complainant went outside the house and screamed
for help saying people
were killing them. The second appellant then
locked all the doors of the house and all of them went out of the
house. The first
appellant was taken to hospital. When the first
appellant returned from hospital, he found some community members
inside the yard.
[14]
Under cross examination by the State, the first appellant stated that
the second appellant had told the two
complainant and McDonald to go
outside, whilst he (first appellant) pushed the complainant and
McDonald out of the house. The first
appellant denied that the second
appellant had pushed the two complainant together with McDonald out
of the house. The first appellant
also denied that he had assaulted
the first complainant.
[15]
The second appellant took the witness stand and testified under oath.
He testified that the first appellant
is his younger brother. That
the second complainant is his aunt. On 11
th
June 2017 at
about 20h00 he was at his homestead when he was phoned by the first
appellant informing him that they have injured
him at home. The
second appellant together with his wife drove to the homestead where
the first appellant was. On arrival at the
said homestead he found
the first appellant in a pool of blood and his clothes were torn. The
first appellant told him that he
was attacked by the two complainants
and McDonald.
[16]
As the second appellant was not in good speaking terms with the
second complainant, he told the first complainant
that every time she
was at that homestead, something happens to the first appellant. The
second appellant told the first complainant
to leave that homestead
and go to her homestead. The second appellant thinks that what he
told the first complainant had bothered
the second complainant and
McDonald as it was already late and there was no transport to take
the first complainant to her homestead.
The second appellant then
took the first appellant to the headman’s kraal because they
have already reported their problems
to the headman.
[17]
On arrival at the headman’s kraal, the headman saw that the
first appellant was injured, and the headman
told him (second
appellant) to take the first appellant to hospital and that they will
call the police. The second appellant took
the first appellant to
hospital where he was treated. From hospital the appellants went the
police station to open a criminal case.
The second appellant further
stated that when the two complainants saw that the appellants had
opened a criminal case against them,
they too opened a counter charge
against the appellants.
[18]
The second appellant was cross examined and he conceded that the
second complainant was married to his late
father. However, the
second appellant denied that the house that the second complainant
was staying in was hers, but that the house
belonged to his (second
appellant) late mother. The second appellant conceded that the second
complainant had obtained a protection
order against him. The second
appellant also conceded that one of the conditions of the protection
order was that he was not supposed
to enter the second complainant’s
homestead. The second appellant disputed that he had assaulted the
second complainant.
That concluded the evidence of both appellants
and they closed their case.
[19]
Both appellants appeal is directed against conviction only. It is
trite that a court of appeal will not readily
interfere with the
factual findings of the trial court unless it is clear from the
record that the trial court had materially misdirected
itself or
erred to the extent that its findings were vitiated and fell to be
set aside. The court of appeal must also remain cogniscant
that the
trial court has the advantage of having observed and heard witnesses.
(See
Mnyandu
v
Padayachi
[1]
).
[20]
It is trite that the State bears the onus of establishing the guilt
of the accused beyond reasonable doubt.
An accused is entitled to be
acquitted if there is a reasonable possibility that he might be
innocent. (See
S
v van Aswagen
[2]
).
The question which this court must determine is whether the State has
discharged its onus on all the counts which the appellants
have been
convicted of.
[21]
The State has called three witnesses to testify against the two
appellants. According to the first complainant,
she was assaulted by
the first appellant who hit her with fists, and also pushed her out
of the house where she fell. As she was
on the ground, the second
appellant came and hit her with an object. The second State witness
testified that he saw the appellants
assaulting the two complainants,
further that the second appellant was assaulting both complainants
with a stick, and thereafter
both appellants pushed both complainants
out of the house. However, when asked during his evidence in chief to
give the details
of the alleged assault, the second State witness
testified that he had just peeped into the room and saw the two
appellants assaulting
both complaints and he turned back and went
outside to go and seek for help. Even during cross examination when
asked about the
details of the alleged assault, the second State
witness stated he just observed the second appellant assaulting both
complainants,
and thereafter he ran out of the house.
[22]
The second complainant testified that she was assaulted by the second
appellant who hit her on the forehead,
left arm and lower abdomen
with a stick. The second complainant further testified she was pushed
out of the house by the second
appellant and that the first appellant
did not participate in pushing her out of the house, although the
first appellant did attempt
to assault the first complainant with
fists.
[23]
Regarding the first appellant, there are material contradictions in
whether he had assaulted the two complainants.
The second complainant
had testified that the first appellant had attempted to assault the
first complainant with fists and that
he did not participate in
pushing her out of the house. The second State witness could not give
a clear picture of what role the
first appellant played in assaulting
the complainants as his testimony is to the effect that when he
peeped into the room where
he observed the two appellants assaulting
the two complainants and thereafter he ran out of the house to go and
seek for help.
However, during cross examination what the second
State witness emphasised was that he saw the second appellant
assaulting both
complainants.
[23]
Even the State when it addressed the court on merits of the case, it
was non-committal about whether the
first appellant should convicted
or not. What State submitted was that with regard to the first
appellant, the court may take a
decision, and that it was difficult
for the State to ask for a conviction against the first appellant.
When the court a quo asked
the State whether chasing or pushing
someone out of the house does not amount to assault and the State
replied that the first appellant
had stated that when he was
incriminating himself.
[24]
It remains the duty of the State to prove the guilt of an accused
beyond reasonable doubt and there is no
duty on the accused to
convince the court of the truthfulness of any explanation which he
gives. (See
S
v V
[3]
).
It is clear that the State did not have faith in its case against the
first appellant and the court quo convicted the first appellant
on
his self incriminating evidence after he took the witness stand. The
question is whether at the time the State closed its case,
did the
State prove its case against the first appellant beyond reasonable
doubt. If not, the first appellant is entitled to an
acquittal, and
not to convict him on the basis of self incriminating evidence which
was adduced when the first appellant took the
witness stand. In fact
the appellant should have been found not guilty and discharged in
terms of section 174 of the
Criminal
Procedure Act
[4]
(CPA)
in order to avoid
self incrimination. The appellants were unrepresented, and it was the
duty of the court quo to assist them in
presenting their defence, and
that will include in assisting an unrepresented accused to apply for
a discharge in terms of section
174 of the CPA where the accused has
no case to answer. The court a quo in this case had failed to assist
the unrepresented first
appellant in applying for discharge in terms
of section 174 of the CPA, but waited for the first appellant to self
incriminate
himself.
[25]
In
Machete
v S
[5]
it was held that
if the prosecution has no faith in its case it will be an unusual
outcome for the court to say that the evidence
nonetheless suffices
to discharge that onus. The court held further that the function of
the prosecution is not to obtain conviction
at all costs, but to
present the prosecution case fairly, which includes making
concessions whenever it is appropriate to do so.
There were material
contradictions in the case against the first appellant, and there was
no basis for the court a quo to have
ignored those contradictions.
This court is alive to the fact that the mere contractions in the
State case is not a ground to discharge
an accused person in terms of
section 174 of the CPA. However, the test is whether with the
evidence presented at the close of
the State case, will a reasonable
court convict an accused at the end of the case based on that
evidence. In the case at hand,
the evidence presented at the close of
the State case against the first appellant was of such a poor quality
that no reasonable
court would have convicted the first appellant at
the end of the case, unless he self incriminate himself, like it
happened in
this case. In my view, the court a quo misdirected
itself in convicting the first appellant on both counts of assault
GBH
despite the material contradictions in the State case.
[26]
Turning to the second appellant, all the three State witnesses have
implicated him. The first appellant is
the second appellant’s
younger brother. He was called to the scene by the first appellant,
and when he was called the first
appellant told him that he was been
assaulted by the people in the house. On arrival at the scene he
found that the first appellant
was injured and his clothes were
bloodied, which confirmed that indeed he was assaulted. The second
appellant was not in good terms
with the second complainant whom the
first appellant had implicated as one of the people who had assaulted
him. The second complainant
had a protection order against the second
appellant, of which one of the conditions of that protection order
was to prevent him
from entering the second complainant homestead.
[27]
The second appellant defied the protection order and entered the
second complainants homestead. The second
appellant does not believe
that the said house belonged to the second complainant, but in his
view it still belonged to his late
mother. That gives a picture of
the animosity that prevails between the second appellant and the
second complainant. Therefore
in view the second appellant did not go
to the second complainant homestead for a friendly visit. Since the
second appellant did
not regard the second complainant as the
rightful owner of the house, when he found his younger brother
injured and with bloodied
clothes as result of the alleged assault by
his enemies, in my view, he decided to retaliate and revenge for his
younger brother
by assaulting and chasing the complainants and
McDonald out of the house.
[28]
In my view, having assessed the evidence on record in its totality,
with regard to the second appellant,
he was correctly convicted on
all the counts. The appeal with regard to the second appellant stand
to fail.
[29]
In the result I make the following order:
29.1 The appeal against
the first appellant is upheld on both counts.
29.2 The appeal against
the second appellant is dismissed on all the counts.
29.3 The order of the
court a quo with regard to the first appellant is set aside and
substituted with the following:
“
Accused 1 is
found not guilty and discharged on all the counts”
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
I AGREE
MULLER J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the appellants
Adv
KP Mokwena
Instructed
by
DS
Sello Attorneys
Counsel
for the respondent
Adv
P Magoda
Instructed
by
Office
of DPP Limpopo Polokwane
Date
heard
30
th
July 2021
Date
delivered
30
th
August 2021
[1]
2017 (1) SA 151
(KZP) at para 28
[2]
2001 ZASCA 61
(17 May 2001)
[3]
2000 (1) SACR 453
(SCA) at 455b
[4]
51 of 1977
[5]
2017 ZASCA 70
(31 May 2017)