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[2018] ZAGPPHC 174
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Olckers v S (A171/2016) [2018] ZAGPPHC 174 (28 March 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION. PRETORIA)
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO
OTHER JUDGES
(3)
REVISED
Case No. A171/2016
28/3/2018
In
the matter between:
MARTHINUS
GERHAROUS OLCKERS
APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
MILLAR
AJ
1.
This
is an appeal against conviction granted on petition to this court on
22 February 2016.
2.
The
appellant was convicted on 1 September 2015 in the Magistrates Court
at Secunda on one count of common assault and one count
of
crimen
injuria.
He was sentenced to a fine
of R1 500,00 or three months imprisonment, half of which was
suspended for five years and to a fine of
R3 000,00 or three months
imprisonment, respectively .
3.
This
is a case which arose out of an altercation in a parking lot. Only
two witnesses were called to testify, the complainant and
the
appellant. That the incident occurred was not in issue - it is what
is alleged to have transpired during the incident that
formed the
basis for the complaint and prosecution.
4.
The
evidence of the complainant was that he had been driving in a parking
lot, against the direction set out by the road markings.
He was in
the vicinity of the vehicle of the appellant, who was parked, and
saw,
out
of the corner of his eye, that the appellant was gesturing at him .
He stopped, and the appellant waved him on. He started to
move and
saw that the appellant was speaking and proceeded to stop again and
opened his rear window to hear what the appellant
was saying. The
evidence of the appellant confirmed this. The complainant was alone
in his vehicle; the appellant was with his
wife and child in his
vehicle. The incident was up to this point in time unremarkable and
something that happens on
a
daily
bas is wherever there are drivers in parking lots.
5.
The
appellant then climbed out of his vehicle and walked to the
complainant's vehicle. The complainant was still seated in his
vehicle and opened his window. on the driver's side to talk to the
appellant. The appellant was angry and said that the complainant
had
almost caused a collision . The complainant testified that he had
asked him if he was "playing" as there had been
no
collision.
6.
The
complain ant testified that the appellant had put his hands through
the window and had tried to throttle him. He had put both
his hands
around the neck of the complainant. This was described as
"strangling". The complainant leant to his left and
broke
the appellant's hold. He then told the appellant that he was going to
report him to the police and it was then at this point
that the
appellant swore at him. The appellant went back to his vehicle and
drove off; the complainant followed and took down his
registration
number before going to the police to make a report.
7.
The
evidence of the appellant was, from the time he arrived at the window
of the complainant's vehicle , that he had simply asked
the
complainant if he had a driver's licence. The complainant had been
arrogant and had asked him if he was "playing"
and he had
then left, got back into his vehicle and driven off.
8.
The
learned Magistrate made no adverse findings as to the credibility or
the demeanor
[1]
of either the complainant or the appellant and the case was decided
on the respective versions.
9.
The
test to be applied in the present matter is set out in
Olawale
v S
[2]
where the Supreme Court of Appeal
held as follows:
" Onus of proof-
Prosecution must prove its
case
beyond reasonable
doubt and
a
mere
preponderance of probabilities is not enough
-
In view of this
standard of proof in
a
criminal case,
a
court does not
have to be convinced of every detail of an accused's version is true
-
If
the accused's version is reasonably possibly true in substance, the
court must decide the matter on the acceptance of that version."
10.
The
two versions as to what transpired at the window of the complainant's
vehicle are mutually destructive. One is the truth and
one is not. Is
the version of the appellant “
reasonably
possibly true in substance”?
11
It was not disputed that the complainant and the appellant did not
know each
other before the incident and that there was no reason for
any acrimony between them. Furthermore, on both versions the
complainant
was seated in his vehicle throughout the incident and did
not alight from it. The appellant corroborated the evidence of the
complainant
that he had asked him, when he had gone to his window,
whether the appellant was "playing ".
12.
The
state of mind of the parties at the time of the incident and the
evaluation of their respective versions in light thereof is
crucial
to the determination of this appeal. The complainant was entirely
passive throughout the incident. The appellant on the
other hand not
so.
13.
Just
prior to alighting from his vehicle the state of mind of the
appellant is apparent - when he testified:
"He stopped right behind
my car. Now he was blocking me your worship, from driving any
further,
and
I did at that time realize that something is going to happen
,"
(my
underlining.)
14.
It
is in this state of mind that the appellant alighted from his vehicle
and went to the complainant. The version of the appellant
that he
simply went to ask the complainant if he had a driver's licence is in
the circumstances "not only improbable, but
also falls beyond
reasonable doubt
[3]
" , when regard is had to all the circumstances of the incident.
15.
The
complainant had no reason whatsoever to lie and no reason was
suggested, or basis laid for this by the appellant. While the
complainant was the only witness
[4]
called by the respondent, it has been held that
"in
evaluating the evidence of
a
single
witness,
a
final
evaluation can rarely, if ever, be made without considering whether
such evidence is consistent with the probabilities.
[5]
"
16.
In
the present instance, the evidence of the complainant is entirely
consistent with the probabilities whereas the evidence of the
appellant is so improbable so as to be untrue. It is for this reason
rejected.
17.
After
argument was concluded and judgment reserved, counsel for the
appellant indicated that the appellant had not been given proper
notice of the hearing of the appeal. This was not raised when the
matter was called or during argument.
18.
In
the result, the following order is proposed:
The appeal is dismissed.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
I
AGREE
M TEFFO
JUDGE OF T E HIGH COURT
GAUTENG DIVISION, PRETORIA
I
AGREE, AND IT IS SO ORDERED
P MABUSE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
HEARD
ON:
23 MARCH 2018
JUDGMENT
DELIVERED ON:
28 MARCH 2018
COUNSEL
FOR THE APPLICANT:
ADV. D VAN DEN BERG
INSTRUCTED
BY:
CRONJE DE WAAL ATTORNEYS
REFERENCE:
MRA BECKER
COUNSEL
FOR THE RESPONDENT: ADV. S SCHEEPERS
INSTRUCTED
BY:
THE STATE ATTORNEY
REFERENCE:
VB26/2017
[1]
S v Francis
1991 SACR 198
(A) at 198 D-E.
[2]
[2010] 1 ALL SA 451
(SCA) at 451 B-C and also
R v Dhlumayo and
Another
1948 (2) SA 677 (A).
[3]
S
v
V2000 (1) SACR 453 (SCA) at 453 8-C
[4]
See
Section 208
of the
Criminal Procedure Act 51 of 1977
.
[5]
S
v Texeira
1980 (3) SA 755
(A) at 761 A-8.