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[2019] ZAGPPHC 163
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Ngema v S (A728/2016) [2019] ZAGPPHC 163 (26 March 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(NORTH GAUTENG HIGH COURT,
PRETORIA)
Case No: A 728/2016
27/3/2019
In
the matter of:
Siphiwe
Ngema
Appellant
And
The
State
JUDGMENT
Maumela
J.
1.
This
matter came before court as an appeal against both conviction and
sentence. Before the district court for the District of Witbank,
(the
court
a quo),
Appellant
was charged with the offence of Assault. He was legally represented
throughout the trial.
ALLEGATIONS.
2.
The
allegations were that upon or about the 4
th
of August 2015, and at or near Kusile Power Station in the Regional
Division of Witbank, the Appellant did unlawfully and intentionally
assault Hermanus Stephanus Legrarige, by beating him with fists and
kicking him with booted feet.
3.
The
Appellant understood the charge put. He pleaded not guilty. When
offered an opportunity to disclose the basis of his defence
in terms
of section 115 of the Criminal Procedure Act, Appellant opted to
exercise his rights to remain silent.
4.
The
state called
Mr Hermanus Stephanus
Legrange,
the complainant, as its
witness. Under oath, this witness testified that he is employed at
Topfix; a firm located at Kusile Power
Station. He stated that
Appellant is one of his drivers. On the 4
th
of August 2015, he was at work together with a group of employees
under his charge. He stated that on that day an incident took
place.
As a result, he looked for the workers under him, including the
Appellant. He could not find the Appellant in particular.
A search
all over for the Appellant proved in vain. Acting on a tip-off, he
found the Appellant sitting inside one of the vehicles;
a Toyota
Quantum. He told court that sitting in a vehicle during working hours
is contrary to applicable regulations.
5.
He
said that he opened the door of the vehicle and asked the Appellant
to alight. The Appellant, who kept on fidgeting with his
cell phone
ignored him. After waiting for a while, to no avail he asked
Appellant several times to alight and to follow him to
his office. As
he walked towards his office, he heard Appellant banging the door of
the vehicle. He walked back and requested Appellant
not to slam the
door of the vehicle, reminding him that the vehicle does not belong
to him. He stood there holding the door of
the vehicle. He stated
that the Appellant attempted to pull the door and to get the
complainant's hand off the door. He resisted
the Appellant who kicked
him on his stomach.
6.
The
witness testified further that when he asked Appellant what he was
doing, the latter hit him with a fist on his eye. He stated
that he
clung to the Appellant to avoid suffering further assault. He said
that his spectacles flew in the air during the fracas
and he could no
longer see. He had to use eye drops over a long period to treat his
injured eye. He consulted and received treatment
at a hospital where
his X-Rays were taken. The witness confirmed a J 88 form generated at
the time of his treatment in hospital.
When he was at the HR section,
photos depicting some of his injuries were taken. Despite objections
by the defence, photos shot
from the complainant's cell phone were
admitted as exhibits. The J 88 form was also admitted into the record
as an exhibit.
7.
Under
cross examination the witness disputed that on the day of the
incident Appellant pointed out to him that he was busy on the
phone
with his bank. He denied that he got angry and impatient with the
Appellant or that he demanded for the Appellant to alight
from the
vehicle even though he was not done with communicating with his bank.
He was adamant that Appellant never responded when
he spoke to him.
He testified that when he found him, Appellant was hiding in the
Quantum vehicle. He said that Appellant lay flat
on the seat. He was
adamant that the Appellant kicked him on the stomach.
8.
The following issues were not in
dispute:
8.1.
That
around the day of the incident in this case the Appellant and the
complainant Mr Le Grange were both employed at Top Fix, at
Kusile
Power Station, (the workplace).
8.2.
That
both were present at the workplace on the 4
th
of August 2015, (day of the
incident).
8.3.
The
J 88 form submitted into the record purporting to reflect sustained
by the complainant was not in dispute.
8.5.
After looking for him for a long time,
the complainant found the appellant seated in the vehicle at the
workplace.
8.6.
That on the day of the incident, at the
workplace, an altercation took place between the appellant and the
complainant.
8.7.
That during the altercation complements
spectacles fell to the ground. He picked them up walked to his
office.
8.8.
Both the appellant and the complainant
were suspended from work.
AD
CONVICTION.
9.
T
he
state called one witness, namely the complainant. It handed in the J
88 form on which injuries were recorded which were found
at the time
the complainant underwent a medical examination. The only evidence to
be considered was that given by the complainant.
Appellant opted
neither to give evidence nor to call witnesses. The Appellant argues
that the court
aquo
erred
in convicting him. He seeks an order setting aside his conviction in
the hands of the court
a quo.
10.
It is trite that in any criminal case,
the onus rests upon the state to prove its case against the accused
beyond a reasonable doubt.
In the case of S v Thebus and Another
[1]
,
the court
stated
the
following:
"The State bears the
onus of proving every element of an offence without the assistance of
the accused. It is clear from the
Constitution that the presumption
of innocence implies that an accused person may only be convicted if
it is established beyond
a reasonable doubt that he or she is guilty
of the offence. That in turn, requires the proof of each element of
the offence. However,
our Constitution does not stipulate I that only
the State's evidencemay be used in determining whether the accused
person has been
proved guilty. Indeed our law has always recognised
that the question of whether the accused has been proven guilty or
not is one
to be determined on a conspectus of all the admissible
evidence, whatever is provenance."
11.
It is also trite that Appellate Courts
do not have a free hand to interfere with findings of trial courts.
In this case, it is submitted
on behalf of the Appellant that the
court a
quo
erred
in admitting evidence of the complainant who was a single witness. In
the case of Myandu v Padayachi
[2]
,
the court stated the following concerning power of the appellate
court where it regards factual findings.
"It
is trite that
a
court
of appeal will not interfere with the findings of fact and
credibility of the trial court unless it is apparent from the record
that the court
a
quo
either materially misdirected itself or erred to the extent that its
findings are vitiated and fall to be set aside. The court
of appeal
must
a/so
remain
cognisant that the trial court has the advantage of having observed
and heard the witnesses."
12.
Our courts hold that
it is only in instances where demonstrable and material misdirection
by the trial court is evident where the
appellate court will be
justified to interfere with findings of the trial court. In the case
of S v Hadebe and Others
[3]
, the court stated the following:
"It
was well to recall yet again the well-established principles
governing the hearing of appeals against findings of fact,
which
were, in short, that in the absence of demonstrable and material
misdirection by the trial court, its findings of fact were
presumed
to be correct, and would only be disregarded if the recorded evidence
showed them to be clearly wrong."
13.
The Appellant raised
the issue that in this case only the complainant testified about the
assault. That the court a
quo
erred in
admitting evidence of the complainant was a single witness. Section
208 of the CPA provides the following:
"208
An accused may be convicted of any offence on the single evidence of
any competent witness."
14.
Our courts emphasise that caution has to
be exercised when evidence of a single witness is considered. In the
case of S v Sauls
and Others
[4]
,
the court stated as follows:
"There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness...
The trial
judge will weigh his evidence, will consider its merits and demerits
and, having done so will decide whether there are
shortcomings or
defects or contradictions in his testimony, he is satisfied that the
truth has been told. The cautionary rule referred
to by De Villiers
JP in 1932 (in R v Mokoena), may be a guide to a right decision but
it does not mean "that the appeal must
succeed if any criticism,
however slender, of the witnesses' evidence where well founded ...."
It has been said more than
once that the exercise of caution must not
be allowed to displace the exercise of common sense."
15.
In testifying, the complainant did not
contradict himself. He explained the on-goings of the day of the
incident in very clear terms.
He explained how after the incident at
the workplace he looked in vain for the appellant. When he eventually
tracked him on the
basis of information he was given, the Appellant
was seated in a Toyota Quantum vehicle and he was operating his cell
phone. When
the complainant questioned the Appellant for sitting in a
vehicle during working hours, the latter did not respond. When the
complainant
set out to return to his office, the Appellant banged the
door of the vehicle in which he was seated.
16.
The complainant returned to the vehicle
where a tug of war unfolded when both the Appellant and the
complainant held on the door,
each seeking to do with the door as
they wanted. The complainant testified that it is during this
tug-of-war that the appellant
kicked him twice. He stated that he
needed medical attention as a result of the assault.
17.
The Appellant did not testify, neither
did he call any witness. However the plea he tendered and the line of
cross examination on
the complainant revealed that he denies all
allegations against him made by the complainant. The court a
quo
accepted the version of the state
Appellant. It found that the appellant did assault the complainant.
It convicted him on the offence
charged. It is this judgment against
which the Appellant's lodged an appeal.
18.
The court has to determine whether the
court a
quo
was
correct or not in finding that the state proved its case beyond a
reasonable doubt. In order to do so, the court has to assess
the
available evidence. As indicated, only the complainant testified. As
a result, the available evidence comprises only of the
version of the
complainant. The court also has to determine the appropriateness or
otherwise of the sentence imposed upon the Appellant
by the court a
quo.
Evidence
by the complainant proved beyond a reasonable doubt that the
Appellant assaulted him. The appeal against conviction stands
to be
dismissed.
AD
SENTENCE.
19.
The Appellant also appeals against the
sentence imposed on him by the court
a
quo.
He was sentenced to pay a fine
of R 1 000-00 or to undergo 60 days imprisonment. In S v Zinn
[5]
,
the court stated that in imposing the sentence, the court has to take
into consideration, the crime committed, the interests of
the
accused, and the interest of the community. This principle was
reiterated in the case of S v Kumalo
[6]
,
where the court stated the following:
"Punishment
must fit the criminal
as
well
as
the
crime, be fair to society, and be blended with
a
measure of mercy according to the
circumstances.”
20.
It is clear from the above that
sentences imposed by courts are to be tinged with a measure of mercy.
In S v V
[7]
,
Holmes JA emphasised that
'the
element of mercy,
a
hallmark
of civilised and enlightened administration, should not be
overlooked.”
Holmes JA added
that mercy was an element of justice and referred with approval to S
v Harrison
[8]
;
where the learned judge stated:
'Justice
must be done; but mercy, not
a
sledge-hammer, is its concomitant.
"
21.
In passing sentence courts are to aim at
the achievement of specific goals. In the case of S v Motswathupa
[9]
,
the court made it clear that punishment is not among goals to be
achieved through sentencing. In that case the court stated the
following:
"In addition to that
the court must also consider the main purposes of punishment, which
are deterrent, preventive, reformative
and retributive.3 In the
exercise of its sentencing discretion a court must strive to achieve
a judicious balance between all relevant
factors 'in order to ensure
that one element is not unduly accentuated at the expense of and to
the exclusion of the others.
"
THE
OFFENCE.
22.
The crime of assault involves the
employment of violence. It undermines the rights of others to
security, respect and dignity. It
is rife, much as it is overly
resorted to in most instances where dialogue should rather be
employed to resolve differences. It
promotes a culture to undermine
the human rights of others. The violence in it tend to breed more
violence. More often than not
victims directly or indirectly develop
keenness to counter it with violence thereby laying the ground for
all to take the law into
their hands. This is 'recipe' for
lawlessness.
THE
INTERESTS OF THE APPELLANT.
23.
The appellant was 40 years of age when
he was sentenced. He is a first offender. He has 3 school-going
children with different unemployed
mothers. They are aged 17, 15 and
14. He is also responsible for the upkeep 3 of his sister's children
who receive child grants.
They are aged 15, 13 and 10. His salary at
Top Fix was R 7 000-00 per month. It was submitted that there are a
number of people
who will suffer adverse consequences should the
appellant be incarcerated. It was submitted before court that at time
sentence
was being considered by the court
a
quo
the appellant had received a
final warning at his place of employment.
24.
It was also pointed out that the
appellant’s conviction may prove to be a hindrance to him
renewing his driver's license and
if that were to happen, he may lose
his employment. Should he lose his employment, you will need to go
out and seek employment
afresh. The general job scarcity obtaining
renders job-seeking to be more than daunting, much as it presents
with massive financial
challenges to the job-seeker. It was argued
that appellant is a good candidate for rehabilitation.
THE
INTERESTS OF THE SOCIETY.
25.
Most societies are forever inundated
with spate after spate of acts of indiscriminate violence. Little
children start witnessing
episodes of violence among adults and as
perpetrated against other children from tender age. Courts have to be
stern in punishing
offences like assault where unnecessary violence
is unleashed against defenseless and innocent victims.
26.
In considering the appeal against
sentence the court has to bear it in mind that in every case
sentencing is a matter for the discretion
of the trial court. It is
for that reason that appellate courts cannot consider themselves as
having a free hand in interfering
with sentences passed by courts a
quo.
27.
In the case of S v Romer
[10]
, the court stated the following:
"It
has been held in
a
long
line of cases that the imposition of sentence is pre eminently
within the discretion of the trial court. The appellate
court will be
entitled to interfere with the sentence imposed by the trial court
only if one or more of the recognised grounds
justifying interference
on appeal have been shown to exist. Only then will the appellate
court be justified in interfering.
These
grounds are that the sentence appealed against is:
(a)
disturbingly inappropriate;
(b)
so
totally
out of proportion to the magnitude of the offence;
(c)
sufficiently disparate;
(d)
vitiated by misdirection showing
that the trial court exercised its discretion unreasonably; and
(e)
is otherwise such that no
reasonable court would have imposed it."
See S v Giannoulis
[11]
S v Kibido
[12]
and S v Salzwedel and Others
[13]
."
28.
In
the case of S v Beja
[14]
,
the court stated the following:
"It
is trite the sentence must always fit the crime and the fact that the
person to be punished has a long list of previous
convictions of
similar naturel while it may be an important factor, could never to
extend the period of sentence so that it is
disproportionate to the
seriousness of the crime for which such person must be punished. A
period of imprisonment must always be
reasonable in relation to the
seriousness of the offence”.
29.
The
question the court has to answer is not whether this court in the
place of the court
a quo
would
have, or could have imposed a different sentence. It is rather
whether or not the court a quo exercised discretion reasonably.
In S
v Pieters
[15]
, the Honourable Botha JA stated at page 7340-F that the decisive
question facing a Court of appeal on sentence was whether it
was
convinced that the court which imposed the sentence being adjudicated
upon exercised its discretion to do so unreasonably.
If so, the Court
of appeal was entitled to interfere and, if not, then it cannot.
30.
In
S v Petkar
[16]
,
the court stated that a court on appeal can only interfere with a
sentence if it is vitiated by certain attributes. In that regard
the
court stated the following:
"This
Court's powers to interfere with a sentence on appeal are
circumscribed. It may only do so if the sentence is vitiated
by (1)
irregularity, (2) misdirection, or (3) is one to which no reasonable
court could have come, in other words, one where there
is
a
striking disparity between the
sentence imposed and that which this Court considers appropriate. The
main thrust of the argument
of Mr Engelbrecht, for the appellant, was
that the appellant's sentence fell into the third category.
"
31.
When
compared to the offence committed, the interests of the Appellant and
those of the community the sentence imposed upon the
appellant does
not appear to be out of proportion. It is not shockingly
disproportionate to the offence committed in the circumstances
of the
Appellant. That being the case there seems to be no basis upon which
interference with the sentence imposed by the court
a
quo
can be justifiable. Therefore
the appeal against sentence also stands to be dismissed.
32.
In
the result, the appeal against both conviction and sentence stands to
be dismissed and the following order is made:
ORDER.
1.
The appeal against both conviction and
sentence is dismissed.
Maumela
J
Judge
of the High Court of South Africa.
I agree.
Mokose SNI
Judge
of the High Court of South Africa.
Heard
: 07
February 2018
Delivered
: 26
March 2019
APPEARANCE
For
the Appellant
:M Marriott
For
the Respondent
:Gibbs Mkhwanazi Galane Inc
[1]
2003(2) SACR 319 (CC), at page 356, paragraph 84.
[2]
[2016] 4 All SA 110
(KZP).
[3]
1997 (2) SACR 641
(SCA), at page 642.
[4]
1981 (3) SA 172
(A) at 180E-G.
[5]
1969 (2) SA 537 (A).
[6]
1973 (3) SA 697
(A), at 698 a.
[7]
1972 (3) SA 611
(A), at page 614 D - E.
[8]
1970 (3) SA 684
(A), at page 686 A
[9]
2012 (1) SACR 259
SCA, at page 261.
[10]
2011 (2) SACR 153
(SCA), in paragraph [22].
[11]
1975
(4) SA
867
(A) at
873G - H.
[12]
1998 (2) SACR 213
(SCA) at 216g - j.
[13]
1999 (2) SACR 586
(SCA)
(2000 (1) SA 786
;
[2000] 1 All SA 229)
, at
paragraph 10."
[14]
2003 (1) SACR 168 (SE).
[15]
1987 (3) SA 717 (A).
[16]
1988 (3) SA 571
(A).