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[2019] ZAFSHC 14
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Labuschagne v S (A274/2018) [2019] ZAFSHC 14 (28 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A274/2018
In
the matter between:
GERT
PIETER
LABUSCHAGNE
Appellant
and
THE
STATE
Respondent
CORAM:
MBHELE, J et MATHEBULA, J
HEARD
ON:
18 MARCH 2019
JUDGMENT
BY:
MATHEBULA, J
DELIVERED
ON:
28 MARCH 2019
[1]
The appellant was charged in the Magistrate’s Court at Hoopstad
with assault with intent to do grievous bodily harm. Despite
his plea
of not guilty, he was convicted as charged. I will return to the
phrase “guilty as charged” at a later stage.
He was
sentenced to pay a fine of R800.00 or three (3) months imprisonment
which was wholly suspended for a period of three (3)
years. The trial
court granted him leave to appeal against both conviction and
sentence.
[2]
The Notice of Appeal was not filed timeously within the prescribed
time period in terms of the Uniform Rules of Court. The application
for condonation supported by affidavits deposed to by Joachim Venter
(attorney of record) and his city correspondent Jonathan Le
Riche
served before us. The respondent did not file any opposing papers and
in oral submission counsel for the respondent confirmed
that the
application is not opposed. The reason relied upon for the
noncompliance with the rules resulting in the lateness of the
filing
of the notice is a perennial problem of the compilation and
submission of the typed record by the transcribers. Satisfied
that
there was no wilful default on the part of the appellant, we granted
the application.
[3]
An outline of the facts is necessary as a background. On 4 December
2015 in the evening the appellant and the complainant were
at
Vennaker bar . The complainant spoke to the appellant’s
father. It appears that he took an exception because the
complainant
was speaking ill about him in his absence. Accordingly he was
pretending to be friendly to his father. He walked up
to him to deal
with this matter.
[4]
The tempers flared between them
as they were both speaking in high pitched
voices. This bust-up led to the appellant pushing the complainant. In
a blink of an eye
he followed it up with a clenched fist on the face
of the appellant who hit the canvas and remained unconscious for some
time.
The intervention of other patrons probably saved him from
further punishment. His injuries recorded in the J88 are abrasions on
the nose, contusion on the left upper eyelid, contusion and
subcutaneous bleeding on the frontal head as well as subconjunctival
haemorrhage (bleeding in the medial eye) colloquially referred to as
a “blue eye”.
[5]
An appeal court can interfere where it is shown that the trial court
was wrong in its analysis of the facts.
[1]
In this matter the trial court made certain factual findings. On
appeal I could not find any reason(s) to interfere with
those factual
findings.
[6]
The trial court was aware that it is incumbent on the State to prove
its case against the appellant (accused) beyond reasonable
doubt.
Equally if the version of the appellant (accused) is reasonably
possibly true, then he is entitled to an acquittal. The
trial court
also proceeded to analyse the evidence holistically aware of the
inherent improbabilities on both sides and correctly
rejected the
version of the appellant and preferred that of the complainant and
his witness Johan de Bruin.
[7]
The version of the appellant was that they had a heated argument with
the complainant. He pushed him and noticed him clenching
a fist.
Fearing that he might be attacked, he unleashed a blow that left the
complainant poleaxed.
[8]
In order for self-defence to succeed, it must be shown that the
defensive act undertaken was necessary for protection purposes.
There
must also be a reasonable relationship between the attack sought to
be averted and the defensive act employed for that purpose.
[2]
As the Supreme Court of Appeal observed in
Grigor
supra, there must be a balance between the attack and the defence.
[9]
In this matter, it is unequivocally clear that on the day in question
the appellant was the aggressor. He walked up to the complainant
to
confront him about being friendly to his father when he is
badmouthing him. He even had the audacity to tell him to leave the
bar even though they were at a public space.
[10]
When he did not get his way, he pushed the complainant. This on its
own constituted an assault. He was not charged with it.
There is no
evidence that the complainant even attempted to resist or retaliate.
The evidence is that the complainant was holding
a glass of beer in
one hand while the other hand was in his side pocket. There is a
contradiction between witnesses as to what
is it that he was holding.
I conclude as the trial court did, that this is a minor contradiction
which is not material to the evidence
tendered on behalf of the
respondent. The fact of the matter is that he was not posing any
danger to the appellant.
[11]
According to the appellant he attacked the complainant because he saw
him clenching his fist and ready to launch an attack.
This is a
fallacy. When he pushed the complainant, logic dictates that there
was now some space between them. His counsel submitted
that at that
stage he was well within his rights to attack because if he had
turned his back, it would have rendered him vulnerable.
I find this
submission unsound. He could have easily walked away. Moreso, there
is no evidence that the complainant moved an inch
towards him to
attack. Therefore his view that he thought the attack was imminent is
misplaced and not consistent with the evidence
before the trial
court.
[12]
In pronouncing the verdict, the trial court concluded that the
appellant is guilty as charged. On the J15 the learned magistrate
wrote “guilty assault”. In my opinion this does not cause
any confusion. It is a simple mistake. The appellant pleaded
not
guilty to the “assault with intent to do grievous bodily harm”
charge. The evidence tendered before the trial court
proved the
commission of that offense. This then lays the contention to rest.
[13]
The next instalment to be considered in this appeal is the issue of
sentence. Counsel for the appellant correctly conceded
that there is
nothing shockingly inappropriate in the sentence imposed by the trial
court. In fact the trial court was lenient
to impose such a sentence.
It is unnecessary to deliberate any further on this point.
[14]
Therefore, I propose the following order:-
14.1 The appeal against
both conviction and sentence is dismissed.
__________________
MA
MATHEBULA, J
I
concur and it is so ordered.
_____________
NM
MBHELE, J
On
behalf of appellant: Adv. S. Van Rensburg
Instructed
by: Phatshoane Henney Inc.
Bloemfontein
On
behalf of respondent: Adv. E. Van Rensburg
Instructed
by: Director of Public Prosecutions
Bloemfontein
[1]
R v Dlumayo and another
1948(2) SA 677 (A) and
S
v Francis and others 1991 (2) All SA 9 (A)
[2]
Grigor v
S
2012 ZASCA 95