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[2019] ZANCHC 17
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Mrwetyana v S (CA&R 39/2018) [2019] ZANCHC 17 (8 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA, NORTHERN CAPE DIVISION, KIMBERLEY.
Reportable/Not
reportable
Case no: CA &
R 39/2018
In the matter
between:
IZEKA
MRWETYANA
APPELLANT
And
THE
STATE
RESPONDENT
Heard:
28 January 2019
Delivered:
08 March 2019
Coram:
Phatshoane ADJP and Mamosebo J
The appeal
upheld, the conviction and sentence set aside.
Judgment
PHATSHOANE ADJP
Introduction:
[1]
Constable
Izeka Mrwetyana, the appellant, was 27 years old when he was tried by
Magistrate OS Mazwi in the Magistrate Court for
the District of
Gordonia, sitting in Groblershoop, on a count of assault with intent
to do grievous bodily harm (“assault
GHB”) in that on or
about 27 August 2017 at or near Groblershoop he unlawfully and
intentionally assaulted 34 years old Mr
Elvin Baitsiwe (“the
complainant”) by hitting him with open hands and fists with the
intention to cause him grievous
bodily harm.
[2]
The
appellant pleaded not guilty to the charge but tendered a plea
explanation in which he admitted that on 27 August 2017, on two
occasions, acting in self-defense, he pushed the complainant away
from him and hit him with a fist in his face. These admissions
were
formally recorded in terms of s 220 read with
s 115(2)(b)
of the
Criminal Procedure Act, 51 of 1977
.
[3]
The
trial Magistrate rejected the appellant’s self-defense ground
of justification. He found him guilty of common assault
and sentenced
him to pay a fine of R2000 or, in default of payment, to undergo five
months imprisonment wholly suspended for a
period of three years on
condition that he was not convicted of assault or assault GBH
committed during the period of the suspension.
He now appeals against
his conviction only with leave of the Court
a
quo
.
[4]
Before
us it was contended, for the appellant, that the Magistrate erred in
finding a number of contradictions in the evidence presented
by the
state to be immaterial. It was further argued that the Magistrate
misdirected himself in concluding that the complainant’s
evidence was corroborated by the evidence of the other two state
witnesses, Mr Michael Booysen and Dr Molefe Godfrey Moletsane.
Furthermore, the Magistrate erred, it was argued, in rejecting the
appellant’s version as improbable and convicting him of
assault
simpliciter
.
The state concedes that the conviction is not justified.
The
Background:
[5]
The
factual milieu to which this appeal gives rise is as follows. The
complainant says that he was a spectator of a soccer match
on 27
August 2017 at Samuel Gouws Stadium, Groblershoop, where his team,
Topline, was playing against Wits. In the course of cheering
on his
nephew, Jerome Links, who was playing for Topline, he coached him not
to play too deep into the soccer pitch because he
was not a fast
runner. The appellant approached him and warned him not to talk to
the player in that manner. Out of the blue the
appellant struck him
once with an open hand on his left cheek. He enquired from the
appellant if he was done hitting him but he
slapped him once more on
the same cheek. As a consequence, his left ear was bleeding. He had
consumed alcohol and was not “completely
sober”.
[6]
The
complainant departed the scene for a local police station to lay a
criminal charge against the appellant. The police requested
him to
return on the Monday following the incident because: “
Die
mense maak sake dan trek hulle dit die volgende dag terug.”
He consulted Dr Moletsane the next day who examined his ear and told
him that it was internally injured. He referred him to an
ear
specialist. He was booked off sick for a week because his ear was
swollen.
[7]
Dr
Moletsane confirmed having examined the complainant and completing
the J88 form. The complainant relayed to the doctor
that he was
“punched in the face twice” and that his left ear was
bleeding. However, on his otoscopic examination,
the doctor says, he
did not find any abnormality (obvious inflammation/redness or injury)
in any of the complainant’s ears.
The meatus and its membrane
were clean. He only observed that the complainant had a bruise below
his left eye.
[8]
Mr
Michael Booysen was seated high on the pavilion of the stadium while
the complainant and “others” stood near the
soccer pitch,
some unmeasured distance from Booysen. He only observed the appellant
striking the complainant once not twice with
an open hand. He did not
see what happened between the antagonists before this incident but
afterwards noticed that the complainant
had a nose and mouth bleed.
[9]
The
above was a sum total of the evidence presented by the state. Prior
to the closure of its case the prosecutor informed the Court
that he
would not call any further witnesses because their evidence would
best serve the interest of the
defence
.
[10]
The
appellant says he was a reserve player on the day in question. He
stood next to the football pitch (close to the touch line)
and heard
the complainant screaming that the players were playing “
s…it
”
(unprintable expletive”). He cautioned the complainant not to
abuse the players as they would lose concentration.
The complainant
accosted him in a confrontational mood and enquired what he wanted to
do to him. The appellant pushed him backwards
with open hands to his
face. This may probably explain the bruise found by the doctor below
the complainant’s left eye. The
security personnel removed the
complainant from the scene.
[11]
Not
long afterwards the complainant accosted the appellant once more and
said to him: “
ek
hou my lankal hardegat.”
He prodded the appellant’s chest, who in turn pushed the
complainant back. The security personnel intervened again and removed
the complainant from the scene. A while later, the complainant
approached the appellant and attempted to pummel him with a fist
but
he ducked. The fist struck Mr Henny Horn, who stood next to the
appellant. The complainant punched the appellant twice in his
face.
The appellant retaliated by hitting the complainant once with a fist
on the left side of his face. The complainant fell.
[12]
Two
mutually destructive versions regarding the fracas were therefore
placed before the Magistrate. Each party disputed the other’s
version. In addition, a number of contradictions, enumerated below,
emerged in the case presented by the state which the appellant
contended were material:
12.1
As already highlighted, the complainant intimated that when he
attempted to lay a criminal
charge against the appellant he was told
to return on the Monday because “
Die mense maak sake dan
trek hulle dit die volgende dag terug.”
When confronted
with his statement to the police in which he said: “
I was
advised to come the following day because I was under the influence
of alcohol,”
he changed his version and intimated that the
police officer also said: “
More is dit ʼn ander storie
want sy sien ons is ʼn bietjie gedrink.”
12.2
The complainant denied having conveyed in the police statement that
he was struck with
a fist on the right ear. He went on to say that he
informed the prosecutor that that part of his statement was incorrect
but the
prosecutor advised him to proceed with the statement as is.
Quite remarkably, the prosecutor did not move for any amendment of
the charge sheet to reflect that the complaint was merely slapped in
the face.
12.3
The complainant was also confronted with the doctor’s report
(the J88) which indicates
that he had a bruise below his left eye. He
denied that he had the bruise. However, he later conceded that the
doctor may have
detected injuries which he may have been unaware of.
12.4
The doctor testified that the complainant informed him that his right
ear was injured.
The complainant denied this.
12.5
On the evidence that the doctor did not find any abnormality in any
of his ears the complainant
explained that when he was ferried home
by ambulance, from the police station, the ambulance crew saw his ear
bleeding and gave
him some medicine to clean it. This does not
explain why the doctor had recorded that he did not observe any
inflammation in his
ears.
The
Judgment of the Court
a quo
:
[13]
The
Magistrate found it inconceivable that the complainant would have
sworn at his cousin who had been playing for his team or at
the other
players. He rejected the innuendo that the complainant was in an
inebriated state and reasoned that the complainant recalled
how many
times the appellant slapped him and that he managed to walk to the
police station which was situated approximately three
km from the
scene.
[14]
The
Magistrate went on to hold that: “
The
mere fact that the doctor examined the right ear and further observed
bruising below the left ear seems, in my view, to corroborate
the
version by the complainant that he was slapped twice on the left
cheek and on the right side of the ear. Other than that it
seems, in
my view, that there would be no logical explanation as to why one, if
the complainant was hit with a fist once, would
cause bruising on the
left eye and still cause the need for medical examination on the
right ear.”
The
Magistrate found the contradictions in the evidence presented by the
state to be immaterial. He held that the complainant’s
evidence
was clear and by no means exaggerated. He was of the view that if the
complainant intended to implicate the appellant
falsely he would have
conceded that the appellant struck him with a fist to make the
charges appear more severe. Resultantly, he
accepted the
complainant’s version as the truth and rejected the contention
by the appellant that he acted in self-defence.
Having concluded that
the appellant slapped the complainant twice he was unpersuaded that
he did so with intent to cause the complainant
grievous bodily harm.
As already alluded to, he convicted the appellant of assault
simplicite
r.
The
analysis:
[15]
Stripped
to its bare essential the question arising for consideration is
whether the Magistrate correctly concluded, in light of
all the
contradictions pointed out, that the state proved its case beyond a
reasonable doubt. It should also be determined whether
the Magistrate
correctly rejected the appellant’s version that he acted in
self-defense.
[16]
Although
the Magistrate referred to
S
v Chabalala
[1]
in
his judgment he paid no attention to the holistic approach enunciated
therein of weighing up all the elements which points towards
the
guilt of the accused against all those indicative of his innocence;
and further of assessing the probabilities and improbabilities
on
both sides of the spectrum.
[17]
In my
view, some of the contradictions, although may seem inconsequential,
brings into sharp focus the complainant’s credibility
as a
witness. He did not fare well under cross-examination; was a bit
argumentative when he had to respond to questions posed and
somewhat
prevaricated. He intimated that there were many people who saw what
happened but none of them were called to testify.
As already
mentioned, the state opted not to call them because they could not
have furthered its interest but that of the appellant.
It is not the
function of a prosecutor disinterestedly to place a hotchpotch of
contradictory evidence before a court. Where an
accused is
represented, the prosecutor is not obliged to call evidence which is
destructive of the state’s case, or which
advances the case of
the accused.
[2]
[18]
Mr
Booysen, the only eye witness called by the state, did not witness
the whole brawl and contributed little support to the state’s
case. Neither was the complainant’s version corroborated
in all material respects by the doctor who examined him.
[19]
This
should be compared to the case presented by the appellant. His plea
explanation accorded to the evidence he adduced. More pertinently,
the Magistrate did not point to anything in his evidence which placed
his
demeanour
in
question. This notwithstanding, he found his version to have been
highly improbable. He held that the appellant’s version,
that
the complainant made derogatory remarks against the players, was
highly improbable and concluded: “
As
a consequence thereof anything that flowed from such a suggestion in
particular, the suggestive advances by the complainant to
Mr Mretyana
[the appellant] would suffer the same fate and be rejected as false
as they would be without any basis
.”
[20]
In
concluding as set out above the Magistrate implied that all the
events leading up to the brawl including the scuffle itself,
as
explained by the appellant, were by parity of reasoning improbable.
This is not the correct way to assess the evidence. The
fact that a
witness may have been mendacious on one aspect of his/her evidence
does not necessarily have to result in the Court
jettisoning the
evidence in its entirety. In
S
v Mtsweni
[3]
the Court cautioned that the conclusion that because an accused is
untruthful, he therefore is probably guilty, must be guarded
against.
[21]
The
Magistrate concluded that it was highly improbable that the
complainant, who was not ‘completely sober’, would not
have said to a soccer player “
hy
speel k...”.
The unprintable epithets may well have been said. It is difficult to
understand why the appellant would confront the complainant
if he had
given sound advice to the players.
[22]
What
remains to be determined is whether on an objective consideration of
the facts of this case the appellant acted reasonably
and
legitimately in order to protect himself against the complainant. In
S
v Jackson
[4]
the Appellate Division restated the principle applicable to
self-defense as follows:
‘
In
this Court there is the judgment of WATERMEYER, C.J., in the case of
Rex
v Attwood
,
1946 AD 331
, which deals with the matter as follows on p. 340:
‘
The
accused would not have been entitled to an acquittal on the ground
that he was acting in self-defence if it appeared as a reasonable
possibility on the evidence that the accused had been
unlawfully attacked and had reasonable grounds for thinking that
he
was in danger of death or serious injury, that the means of
self-defence which he used were not excessive in relation to the
danger
and that the means he used were the only or least dangerous
means whereby he could have avoided the danger.'
[23]
The
following dictum in
S
v Steyn
[5]
is instructive:
‘
[19]
Every case must be determined in the light of its own particular
circumstances and it is impossible to devise a precise test
to
determine the legality or otherwise of the actions of a person who
relies upon private defence. However, there should be a reasonable
balance between the attack and the defensive act as 'one may not
shoot to kill another who attacks you with a flyswatter'. As Prof
J
Burchell has correctly explained'. . . modern legal systems do not
insist upon strict proportionality between the attack and
defence,
believing rather that the proper consideration is whether, taking all
the factors into account, the defender acted
reasonably
in the manner in which he defended himself or his property'. Factors
relevant to the decision in this regard include the following
(the
list is by no means exhaustive):
•
the
relationship between the parties;
•
their
respective ages, genders and physical strengths;
•
the
location of the incident;
•
the
nature, severity and persistence of the attack;
•
the
nature of any weapon used in the attack;
•
the
nature and severity of any injury or harm likely to be sustained in
the attack;
•
the
means available to avert the attack;
•
the
nature of the means used to offer defence;
•
the
nature and extent of the harm likely to be caused by the defence.’
[24]
The
complainant confirmed that he was much older and well-built than the
appellant. The fact that he was removed twice from the
scene by the
security personnel but kept pursuing the appellant is an indication
that he was the aggressor to the brawl. Whether
the appellant ought
to have retreated as opposed to retaliating is a difficult question
as the Court observed in
S
v Steyn
(supra).When the complainant hit the appellant with a fist he, to
avert harm to himself, promptly retaliated in an attempt to defend
himself by striking the complainant with a fist. Apart from the
complainant’s version, which was contradictory in the respects
already shown, the state did not lead evidence which demonstrated the
unlawfulness of the attack by the appellant and disproving
his
version that he acted in self-defense or that he exceeded its bounds.
[25]
From
the aforegoing analysis, the appellant’s version cannot be said
to be not reasonably possibly true. In my view, the Magistrate
misdirected himself in rejecting his version as improbable. It
bears reminding that there is no onus upon an accused person
to
convince the Court that he is not guilty. If his version is
reasonably possibly true he is entitled to his acquittal even though
his explanation may be improbable.
[6]
The concession by the state, that the conviction was unsustainable on
the facts of this case, was well made. It follows that the
appeal
must succeed. In the result I make the following order.
Order
1.
The
appeal is upheld;
2.
The
appellant’s conviction and sentence are set aside.
MV Phatshoane ADJP
Mamosebo J concur in the judgment of
Phatshoane ADJP
APPEARANCES:
FOR THE APPELLANT:
Adv I J Nel
Instructed by Geoff Smith Attorneys
FOR THE RESPONDENT:
Adv KF Ilanga
Instructed by The Director of Public
Prosecutions Northern Cape
[1]
2003 (1) SACR 134 (SCA)
[2]
S v Van Der Westhuizen
2011 (2) SACR 26
(SCA) at 32i-36g
paras 9-13
[3]
S v Mtsweni
1985 (1) SA 590 (A)
[4]
1963 (2) SA 626
(A) at
628G-H
[5]
2010 (1) SACR 411
(SCA) at 417 para
19
[6]
S v V
2000 (1) SACR 453
(SCA)