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[2018] ZAGPJHC 592
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S v Maluleke (A288/2017) [2018] ZAGPJHC 592 (2 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO: A288/2017
DPP
REF:10/2/5/1-2017-436
In
the matter between:
THE
STATE
and
MALULEKE,
GORDON
Accused
/ Appellant
JUDGMENT
BEZUIDENHOUT
AJ:
[1]
This is an Appeal by the Appellant following upon his conviction by
the learned Magistrate MF Maila, sitting in the Thembisa
Magistrate’s
Court on 11 April 2017. The Appellant was convicted on a charge of
Assault with Intent to do Grievous Bodily
Harm where it was alleged
that he assaulted the Complainant on 23 October 2016 with a pot and a
brick. The Appeal is against conviction
only.
[2]
The learned Magistrate gave a reasoned Judgment and rejected that the
Appellant acted in self-defence. The Magistrate did not
accept the
criticism that the Complainant diverted substantially from her
statement to the South African Police Service, because
she was
unreliable. The Magistrate held that Police statements are generally
not taken with a degree of care and accuracy and that
a witness’
credibility should not automatically be undermined because of
omissions in the Police statement. It is clear from
the record that
the Magistrate noted that there was a language barrier in the process
of taking down the statement.
[3]
During the Trial, the Appellant contended that he acted in
self-defence. The difficulty with the conduct of the Appellant lies
therein that the Complainant was injured on the back of her head. The
position of the injury of the Complainant therefore brings
into
question whether there was an attack on the Appellant when he
defended himself, on his version. The Appellant could not provide
an
acceptable explanation to the Trial Court as to why the Complainant
was hit with a brick on the back of her head.
[4]
In the Appeal before us, it was,
inter alia
, contended by the
Counsel for the Appellant that the learned Magistrate failed to
analyse the evidence holistically and incorrectly
concluded that the
Appellant’s guilt was proven beyond a reasonable doubt. It was
moreover contended that the Complainant
was a single witness and that
her evidence should be approached with caution. Counsel for the
Appellant ultimately contended that
the version of the Appellant
could reasonably have been true and that the Appellant should have
been acquitted by the Trial Court.
[5]
Counsel for the State submitted that the evidence led in the Trial
Court was clear. The Appellant assaulted the Complainant
with a pot,
before she was hit with a brick. Counsel submitted that there is an
objective fact which cannot be ignored, being that
the Complainant
was struck at the back of her head by the Appellant, which simply
meant that there was no attack on the Appellant
when he struck the
Complainant with a brick on the back of her head. Counsel moreover
submitted that the injuries sustained by
the Complainant were
consistent with her testimony.
[6]
During cross-examination by the State, the Appellant conceded that he
did not see the Complainant in possession of a knife.
The Appellant
moreover contradicted himself in material respects. The Magistrate
held that the different versions put by the Appellant
to witnesses,
compared to his plea explanation, evidence in chief and
cross-examination, contradicted each other.
[7]
We are not convinced that the Trial Court failed to analyse the
evidence correctly. Whilst the Complainant was a single witness,
there was no persuasive case made out before us as to why the
Magistrate was wrong in accepting the Complainant’s version.
It
has also not been shown to us as to where the Magistrate erred in
considering the evidence of the Appellant. The Appellant’s
version that he picked up the brick in order to scare the
Complainant, is not persuasive.
[8]
The Appellant did call a witness to testify in support of his case,
but in our view, the Magistrate correctly questioned the
reliability
of the witness, for the reasons which appear from the Judgment.
[9]
We are not persuaded that the conviction of the Appellant was wrong
and accordingly the Appeal is dismissed.
[10]
Order:
[10.1] The Appeal of the Appellant
against the conviction, is dismissed.
AP
BEZUIDENHOUT
ACTING
JUDGE OF THE HIGH COURT
I
agree.
L
WINDELL
JUDGE
OF THE HIGH COURT
For
the Appellant / Accused:
Legal
Aid South Africa
70
SA Eagle House
Fox
Street
Johannesburg
Counsel:
Adv AH Lerm
For
the State
:
Office
of the Director of Public Prosecutions
Gauteng
Local Division, Johannesburg
Innes
Chambers
corner
Kruis & Pritchard Streets
Johannesburg
Counsel:
Adv HHP Mkhari
Date
of Hearing: 30 October 2018
Judgment
Delivered: 2 November 2018