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[2008] ZASCA 8
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S v Swanepoel (508/2007) [2008] ZASCA 8; [2008] 4 All SA 389 (SCA) (18 March 2008)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
NOT REPORTABLE
CASE NO: 508/2007
In the matter between
JACO GUNTER SWANEPOEL ... APPELLANT
and
THE STATE ... RESPONDENT
CORAM:
FARLAM, MTHIYANE JJA and KGOMO AJA
HEARD: 15 FEBRUARY 2008
DELIVERED: 18 MARCH 2008
Summary:
Appellant employer alleged to have
assaulted and insulted employee following disciplinary inquiry –
Appellant failing to appear
in court on time due to misunderstanding
between his attorney and public prosecutor – whether charges of
assault,
crimen injuria
and
contempt of court proved against appellant.
Neutral Citation: JG
Swanepoel v The State (508/07)
[2008] ZASCA 8
(18 March 2008).
JUDGMENT
MTHIYANE JA
MTHIYANE JA:
[1] The appellant was convicted of assault with intent to do grievous
bodily harm,
crimen injuria
and a contravention of
s 55
of the
Criminal Procedure Act 51 of 1977
in the magistrate’s court for
the district of Pretoria. He subsequently applied for and was granted
leave by the magistrate
to appeal against his convictions and
sentences. The appeal to the Pretoria High Court (Legodi J et Louw
AJ) succeeded partially
when the court made an order:
(a) setting the conviction of assault with intent to do grievous
bodily harm aside and replacing it with a conviction of assault;
confirming the conviction of
crimen injuria
;
replacing the wholly suspended sentence of twelve months’
imprisonment, imposed in respect of both offences, taken as one
for
purposes of sentence, with a fine of R500 or two months’
imprisonment;
setting aside the conviction of a contravention of
s 55
of the
Criminal Procedure Act and
replacing it with a conviction of a
contravention of
s 170
of the
Criminal Procedure Act, and
confirming
the sentence of caution and discharge in respect of the said
offence.
[2] This appeal with the leave of this court is against the above
judgment and order of the High Court.
[3] The charges of assault with intent to do grievous bodily harm and
crimen injuria
arose out of an incident on 17 March 2003 at
the appellant’s place of work at Vibro Bricks (Pty) Limited in
Laudium. At the
time of the incident the appellant was a director and
the complainant, an employee of the company. On the day in question
the complainant
was called to answer to charges of poor work
performance, which led to the holding of a disciplinary enquiry. At
the conclusion
of the enquiry the appellant was found guilty and
given a written warning. The complainant alleges that when he
enquired why he
had been issued with the warning the appellant
insulted him by calling him a ‘kaffir’. The appellant
then made him
sign a resignation form and thereafter assaulted him by
kicking him on the ribs and neck.
[4] The above version was disputed by the appellant. In his plea
explanation in terms of
s 115
of the
Criminal Procedure Act, the
appellant denied that he had insulted the complainant and pleaded
self-defence to the allegations of assault with intent to do
grievous
bodily harm. In his defence the appellant alleged that it was the
complainant who had acted aggressively towards him by
lunging at him
with a bunch of keys. As the appellant tried to ward off the
complainant by pushing him on his shoulder, he hit
the complainant
inadvertently with his open hand on the cheek.
[5] The appellant also denied that he was guilty of contravening
s
170(1)
1
anc" HREF="#sdfootnote1sym">
1
of the
Criminal Procedure Act. He
pleaded that his failure to appear
in court on time was due to a misunderstanding between the public
prosecutor and his attorney.
The prosecutor had informed his attorney
that the matter was not on the roll for hearing that day, i.e. on 3
November 2003. The
prosecutor had however subsequently telephoned the
appellant’s attorney and informed him that there had been a
mistake and
that the matter was in fact enrolled for hearing. The
appellant had been contacted by his attorney and they hastily
proceeded to
court. By the time they arrived at court at 14:00 they
found that the matter had been called and a warrant had been issued
for
the appellant’s arrest. In a summary enquiry conducted in
terms of
s 170(2)
of the
Criminal Procedure Act, the
magistrate was
not satisfied with the explanation offered by the appellant through
his attorney and convicted him of contempt of
court.
[6] The complainant was a single witness for the State. Before
convicting the magistrate had to be satisfied that his evidence
was
clear and satisfactory in every material respect. The magistrate
accepted the complainant’s evidence and, in relation
to the
assault, found corroboration first, in the J88 medical report and
second, in the fact that the complainant had been seen
by a doctor.
The J88 medical report was admitted in evidence despite an objection
by the appellant’s attorney who argued
that it should be
excluded as hearsay because the doctor who saw the complainant and
prepared the report was not called to give
evidence.
[7] As a basis for admitting the J88 in evidence the magistrate
relied on a passage in Schmidt,
Bewysreg
, 3ed at p 319, where
the learned author deals with different methods whereby documents may
be admitted in evidence. The magistrate
dealt with only two of these.
The first is by a person who was the author of the document and the
second by the person who was
present when the document was drawn up.
It is the latter that the magistrate considered applicable. He found
that the complainant’s
presence when the doctor completed the
J88 medical report rendered it permissible for the J88 to be admitted
in evidence through
the complainant. However, the point missed by the
magistrate was that in the passage referred to the author was dealing
with proving
authenticity (‘egtheid’) rather than the
contents of a document. The heading under which the topic is
discussed makes
this clear. It reads:
‘
Inlewering: Identifikasie en
bewys van egtheid (i.e. Handing in: Identification and proof of
authenticity).’
In the discussion the author makes it clear that a document whose
authenticity has been proved is not necessarily admissible: the
contents thereof might still be inadmissible, where, for example they
are hearsay. He explains (at 318):
‘‘
n dokument wat eg bewys
is is nie noodwendig toelaatbaar nie. Die inhoud kan ontoelatbaar
wees – byvoorbeeld as dit hoorsê
is.’
[8] It follows therefore that the magistrate should not have allowed
the J88 to be admitted without the doctor having been called
to give
evidence. It is clear from his judgment that the J88 was tendered by
the State for its testimonial value (i.e. as evidence
of the truth of
what it asserts) and the magistrate accepted it as such. The
following passage in
R v Miller
1939 AD 106
at 119 is
instructive:
‘
. . . statements made by
non-witnesses are not always hearsay. Whether or not they are hearsay
depends upon the purpose for which
they are tendered as evidence. If
they are tendered for their testimonial value (i.e., as evidence of
the truth of what they assert),
they are hearsay and are excluded
because their truth depends upon the credit of the asserter which can
only be tested by his appearance
in the witness box. If, on the other
hand, they are tendered for their circumstantial value to prove
something other than the truth
of what is asserted, then they are
admissible if what they are tendered to prove is relevant to the
enquiry.’
[9] The magistrate also erred in regarding the J88 as providing
corroboration for the complainant’s evidence in relation
to the
assault. Counsel for the appellant objected to its admissibility and
contended that even if the J88 were properly received
it does not
provide corroboration. First, submits counsel, it contradicts the
complainant’s evidence that he was kicked on
the right ribs and
neck: the J88 records that he had tenderness on the left side of the
body. Nothing is noted on the right side
of the body. Second, the J88
records no visible injuries.
[10] The magistrate, as did the court
a quo
, accorded undue
weight to the fact that the complainant went to see the doctor and
reasoned that he would not have visited the
doctor if he had not been
assaulted. I have already alluded to the fact that this was
considered as providing corroboration of
the complainant. In this
respect the magistrate erred once again. The point is effectively
neutralised by the fact that the complainant
did not go to the doctor
of his own volition. As happens where the complainant has laid a
charge of assault with the police he
was handed the J88 medical
report form and referred to a doctor for the completion of the
relevant form. He had no choice in the
matter.
[11] The complainant’s evidence in relation to assault is not
without blemish. He contradicted himself in a material respect.
When
he gave his evidence in court he only mentioned one incident of
assault and said that this had taken place in the appellant’s
office. But he told the police a different story. In his statement to
the police, which he repeatedly averred in court to be the
truth, two
incidents are mentioned: one in the office and the other outside the
office. The magistrate dismissed this contradiction
as a mistake. It
remained unclear whether the mistake occurred with respect to his
evidence in court or in his statement to the
police. When the
appellant’s attorney pressed the complainant to explain the
contradiction during cross-examination, the
magistrate intervened and
ruled the question as unfair. The unwarranted intervention prompted
the attorney to enquire from the
magistrate whether he was limiting
him in his cross-examination of the witness whereupon the ruling was
immediately retracted and
the attorney was allowed to continue to
pursue the point. In my view the retraction was well made as there
was nothing unfair about
the question. The intervention was a veiled
attempt unduly to protect a witness who was hard pressed to explain
the contradiction.
Although the magistrate readily accepted this
contradiction as a mistake, there is in fact no explanation for it.
When the attorney
asked the complainant if he had made a mistake in
his evidence this was denied by the witness. When asked if what he
said in his
statement to the police was the truth, he answered in the
affirmative. The discrepancy therefore remained unclear and this must
of necessity detract from the complainant’s reliability as a
witness.
[12] As against the complainant’s evidence the testimony of the
appellant and his witnesses had to be considered. The magistrate
made
no adverse credibility findings against the appellant’s
witnesses but considered their evidence as not taking the matter
any
further in that they said that they had not seen what happened in the
appellant’s office. But if regard is had to the
fact that they
corroborate the appellant in his denial of the assault (at least
outside the office) their evidence cannot be considered
to be of
little value. They contradict the version contained in the police
statement, viz the suggestion that the appellant assaulted
the
complainant outside the office. It therefore follows that their
evidence cannot simply be rejected out of hand in as much as
it
throws serious doubt on the complainant’s version. That doubt
must in inure to the benefit of the appellant.
[13] I turn to the charge of
crimen injuria
. As already
indicated the complainant was a single witness for the State and his
evidence was not entirely satisfactory. There
is no corroboration of
the complainant’s assertion that the appellant used the ‘k’
word against him.
[14] Given the confrontation that took place in the appellant’s
office, followed by a highly emotive disciplinary enquiry
which
culminated in the complainant being issued with a written warning and
being asked to resign, his evidence should, in my view,
have been
approached with caution. The emotive scene I have sketched provided a
fertile ground for allegations and counter allegations
to be made by
both sides, which might not have been based on fact. In my view the
allegations made cried out for corroboration
to provide some
guarantee that the truth had been told. Under the circumstances it
is, in my view, not possible to say where the
truth lies and the
appellant should have been given the benefit of the doubt and
acquitted on both the charges of assault with
intent to do grievous
bodily harm and
crimen injuria
. This is by no means a
vindication of his version. The fact of the matter is that the State
bore the onus to prove his guilt beyond
reasonable doubt and that
onus was not discharged.
[15] As to the conviction for contempt of court there was at best for
the State, negligence on the part of the appellant. Counsel
for the
state fairly conceded that negligence was not sufficient to sustain
the conviction.
[16] Two further matters are worth mentioning concerning the
magistrate’s approach to the matter. The first relates to the
question of onus. At the commencement of his judgment the magistrate
correctly stated that the onus was on the State to prove its
case
beyond reasonable doubt and that if it failed so to do the appellant
was entitled to his acquittal. Where he went wrong, however,
was to
assert that once the State had established a prima facie case, the
appellant was required to ‘place evidence before
[the court] on
a balance of probabilities’ to rebut the prima facie case. The
consequence of this approach was to expect
more from the appellant
than the law requires. What is required in a criminal case is for the
State to establish, as I have said,
that there is no reasonable
possibility that his or her version is true. If that possibility is
not excluded he or she is entitled
to be acquitted.
[17] The second aspect relates to the magistrate’s comments
based on the fact that the appellant’s two witnesses, Messrs
Daniel Andries Swanepoel and Robert Mark Rhyn are directors of the
company. What the magistrate said in this regard was this:
‘
And further on, to look into
further aspects of this case, it is so that the accused, Daniel
Andries Swanepoel, Robert Mark Rhyn,
the three of them, are the
directors of the company. The complainant was in fact, according to
the version of the State, assaulted
at the time when the accused was
promoting the interest of this company. Legally speaking it is the
company itself, the whole company,
meaning the accused, together with
these accused, defence witnesses, should have been taken up as
accused 1 and 2 on the assault
case. It is so that at the end of the
day, the whole impact of the whole case does not only fall on the
accused person, it also
falls on the second and the third state
witness and it is highly improbable that under those circumstances
they will come and say
that the company itself has committed an
offence through the conduct of the accused, by hitting and calling
the complainant a kaffir.
Highly improbable.’
In my view this comment can only be described as bizarre. There was
no evidence that the appellant was acting in the furtherance
of the
interests of the company. The alleged assault took place after the
disciplinary enquiry and the resignation, both of which
were of
interest to the company, had long taken place. But even if the
company could have been charged as a co-accused this would
not have
justified the summary rejection of what the witnesses had to say.
Accordingly the magistrate misdirected himself in the
above respects
and this court is therefore obliged to reassess the evidence itself
on the record.
[18] For the above reasons the appeal succeeds and the following
order is made:
1. The order of the court
a quo
is set aside and replaced with
the following order:
‘
The appeal is allowed. The convictions and
sentences are set aside.’
______________________
KK MTHIYANE
JUDGE OF APPEAL
CONCUR:
FARLAM JA
KGOMO AJA
1
S
ection
170 reads:
‘
(1) An accused at criminal proceedings who
is not in custody and who has not been released on bail, and who
fails to appear at
the place and on the date and at the time to
which such proceedings may be adjourned or who fails to remain in
attendance at
such proceedings as so adjourned, shall be guilty of
an offence and liable to the punishment prescribed under subsection
(2).
(2) The court may, if satisfied that an accused referred to in
subsection (1) has failed to appear at the place and on the date
and
at the time to which the proceedings in question were adjourned or
has failed to remain in attendance at such proceedings
as so
adjourned, issue a warrant for his arrest and, when he is brought
before the court, in a summary manner enquire into his
failure so to
appear or so to remain in attendance and, unless the accuses
satisfied the court that his failure was not due to
fault on his
part, convict him of the offence referred to in subsection (1) and
sentence him to a fine not exceeding R300 or
to imprisonment for a
period not exceeding three months.’