About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2018
>>
[2018] ZAFSHC 170
|
|
Mofutsana v S (A287/2017) [2018] ZAFSHC 170 (1 November 2018)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: A287/2017
In
the matter between:
RAMASELA
SOLOMON
MOFUTSANA APPELLANT
and
THE
STATE RESPONDENT
HEARD
ON:
15 OCTOBER 2018
CORAM:
MHLAMBI, J
et
M OPPERMAN, J
JUDGMENT
BY:
M OPPERMAN, J
DELIVERED
ON:
1 NOVEMBER 2018
BACKGROUND
1.
Appellant appeals against his conviction and sentence.
2.
He stood trial together with his wife. Counts 1 & 4 were
applicable to Appellant, accused 1, only. Counts 2 & 3 related
to
accused 2 (the wife) only. The charges eventuated from one incident
hence the manner in which they were charged. Only accused
1 lodged an
appeal. The Appellant was convicted of:
2.1 Count 1: Assault and;
2.2
Count 4:
“Resisting arrest”
[1]
as stipulated in section 67(1)(a) read with section 1 of the South
African Police Services Act 68 of 1995.
[2]
2.3 The detail averred in
the charges is that Appellant assaulted a police officer by “striking
her with open hands and pulling
her.” The other charge stems
from the fact that the Appellant allegedly resisted or wilfully
hindered or obstructed a member
in the exercise of her powers, duties
or functions by “refusing to be arrested by the police
officials and driving away from
the scene.”
3.
The sentences imposed were:
3.1 “R1000-00 (One
thousand rands) or 4 (four) months imprisonment wholly suspended for
a period of 5 (five) years on condition
that the accused is not found
guilty of assault committed within the period of suspension. (Count
1)
3.2 R1000-00 (One
thousand rands) or 4 (four) months imprisonment wholly suspended for
a period of 5 (five) years on condition the
accused is not found
guilty of the contravention of section 67(1)(a) of Act 68 of 1995
committed within the period of suspension.
(Count 4)”
3.3 The Appellant was
regarded fit to possess a firearm in terms of the
Firearms Control
Act 60 of 2000
.
4.
Leave to appeal was denied by the court
a quo
but on 30 May
2017 petition was granted in respect of both conviction and sentence
on both counts.
5.
An attorney on mandate of Legal Aid South Africa aided the Appellant
during the trial. The matter was also brought to this court
by Legal
Aid South Africa.
COMMON
CAUSE
6.
The incident happened on the 4
th
of September 2016 at a
petrol station. It is trite that the Appellant arrived there with his
family to get fuel for his vehicle.
7.
A verbal argument ensued between the Appellant and the petrol
attendant. The wife of the Appellant (Accused 2) also became involved
hence counts 2 and 3; the assault and crimen injuria in relation to
the petrol attendant and solely against accused 2. A police
officer
and her colleague that were also on the premises heard a “commotion”
and walked over to render assistance.
Counts 1 and 4 pertain to the
incident that followed between the Appellant and the police officer.
GROUNDS
OF APPEAL
8.
The grounds
of appeal started off as general and vague.
[3]
They were depicted in the application for leave to appeal and the
petition. The Heads of Argument brought more detail and were
based on
the following primary issues:
8.1
“Appellant
pleaded guilty and gave no explanation. He
denied
assaulting
[4]
the complainant and explained
that
he was authorised to depart
with his vehicle, thus not resisting arrest;”
8.2 “On perusal of
the record, it is clear that the altercation between appellant and
witness 1 (Motena Sithebe) and ultimately
between Appellant and
witness 2 (Palesa Thabana) had caused a moving scene having
differences between witnesses at what transpired.”
8.3 “I submit,
following the evidence of Palesa Thabana, the question arises whether
she was
intending/going to arrest/ informing him of her intended
arrest
– however, did she place him under arrest? Further,
did the Appellant form the intent to assault Palesa Thabana, or did
he
defuse the situation his wife (Accused 2) was in? The court`s
finding that indeed Palesa Thabana had told him he was under arrest,
is not consistent with the evidence led.
8.4 Constable Ganare,
a
vital witness, was not called
. This to be specifically pertaining
to arrest. The plea of the Appellant is clear; Ganare had told
Appellant to depart.
8.5 The emphasis that the
court placed on the
attitude and demeanour
of the Appellant
during the trial is of concern for the Appellant. She found that he
has a disrespect for authority. This might
have influenced the court
in the direction of a conviction rather that she should have
adjudicated whether the facts proved the
elements of the crime.
9.
Detail in
the appeal against sentence is limited to strikingly inappropriate,
out of proportion to the totality of mitigating factors
and does not
take cognisance of the factors in mitigation. The sentences should
have been explicitly ordered to run concurrently
according to
Appellant.
[5]
10.
The State supported the conviction and sentence.
11.
Synoptically the following issues crystallised:
11.1 The evaluation of
evidence in a criminal trial,
11.2 demeanour as an
assessment tool when evaluating evidence,
11.3 the absence of the
evidence of a vital witness in the trial,
11.4 the issues of arrest
and obstructing/resisting a member in the performance of her powers
and duties and lastly;
11.5 the matter of the
assault.
THE
EVALUATION OF EVIDENCE
12.
In
S
v Trainor
2003 (1) SACR 35
SCA,
[6]
Navsa
JA stressed that whether it be to convict or to acquit the court must
account for all the evidence, some of the evidence
might be found to
be false; some of it might be found to be unreliable; and some of it
might be found to be only possibly false
or unreliable; but none of
it may simply be ignored. A conspectus of all the evidence is
required. Evidence that is reliable should
be weighed alongside such
evidence as may be found to be false. Independently verifiable
evidence, if any, should be weighed to
see if it supports any of the
evidence tendered. In considering whether evidence is reliable, the
quality of that evidence must
of necessity be evaluated, as must
corroborative evidence, if any. Evidence, of course, must be
evaluated against the onus on any
particular issue or in respect of
the case in its entirety.
13.
Also, the correct approach for a court to follow with regard to a
factual dispute between the evidence of state witnesses and
the
defense is to apply its mind not only to the merits and demerits of
the state and defense witnesses, but also to the probabilities
of the
case. It is only after so applying its mind that a Court would be
justified in reaching a conclusion as to whether the guilt
of an
accused has been established beyond reasonable doubt. (
Singh
1975(1) SA 227 (N) 228G-H) The evidence
must be considered as a whole, taking into consideration the
following: The probabilities,
the reliability and opportunity for
observation of the different witnesses, the absence of an interest or
bias, the inherent merit
or lack thereof of the evidence itself, any
inconsistencies or contradictions, corroboration, demeanor and any
other relevant factor.
(
Civa
1974(3)
SA 844 T)
14.
The onus is on the State to prove its case beyond a reasonable doubt.
If the version of the accused is reasonably possibly true
after the
evaluation of the evidence as a whole, the accused must receive the
benefit of the doubt and go free.
15.
The test for intent is subjective. This is a vital aspect to have
regard for when the guilt of the Appellant on the “resisting
arrest” is evaluated.
Intention
or wilfully in whatever form, consists of two elements, namely a
cognitive (or intellectual) and a conative (volitional
or
voluntative) element. The cognitive element consists in the
accused’s knowledge of the act, of the circumstances
mentioned
in the definitional elements and of the wrongfulness. The ability to
realise right and wrong. The conative element consists
in directing
the will towards a certain act or result: The accused realises the
consequences and wrongfulness of the act, reconciles
himself
therewith and commences to commit the act.
[7]
16.
The answer to the determination of the subjective mentality of the
accused during the event
in
casu
lies in the hands of the accused person. If he chooses not to avail
himself thereof or is deceitful, he has only himself to blame
if an
adverse verdict is given. An accused's claim to the benefit of a
doubt when it may be said to exist must not be derived from
speculation but must rest upon a reasonable and solid foundation
created either by positive evidence and gathered from reasonable
inferences which are not in conflict with, or outweighed by, the
proved facts of the case.
[8]
DEMEANOR
AS AN ASSESSMENT INSTRUMENT
[9]
17.
The court
a quo
described that the Appellant`s demeanour
showed that he has serious problems with police in general. He also
clearly has an issue
with authority.
18.
The fact that the Appellant is an angry man with attitude issues and
difficulties with authority does not make him guilty of
the crime of
the contravention of
section 67(1)(a)
of Act 68 of 1995. The elements
of the crime must still be proven beyond a reasonable doubt.
Demeanour as assessment instrument
is: “at the best, a tricky
horse to ride.”
[10]
19.
Demeanour of witnesses can be, amongst others, described as their
manner of testifying, their behaviour in the witness-box,
their
character and personality and the impression they create.
[11]
20.
It is considered real evidence in the sense that it is something that
the trial court observes. The observation or evaluation
is therefore
in the eye of the beholder and very much subjective with the danger
of error due to basic human nature. This instrument
must be applied
wisely by the trier of evidence. From cases such as
Medscheme
Holdings (Pty) Ltd and Another v Bhamjee
2005 (5) SA 339
(SCA) the following principles evolved as concluded
by Schwikkard
et
al
:
[12]
(a) Demeanour, in itself,
is a fallible guide to credibility and should be considered with all
other factors: it is in the overall
scrutiny of evidence that
demeanour should be considered and then only if there are sufficient
indications thereof to be significant.
[13]
(b) The limited value of
a finding on demeanour becomes even less where an interpreter is
used.
[14]
(c) The Constitutional
Court has pointed out the danger of assuming that:
“
all triers of fact
have the ability to interpret correctly the behaviour of a witness,
notwithstanding that the witness may be of
a different culture,
class, race or gender and someone whose life experience differs
fundamentally from that of the trier of fact.”
[15]
(d) Demeanour can hardly
ever be decisive in determining the outcome of a case. Demeanour is
merely one factor to be taken into
account: “In addition to the
demeanour of the witness”, said Krause J in
R v Momekela
& Commandant
1936 OPD 24
, “one should be guided by
the probability of his story, the reasonableness of his conduct, the
manner in which he emerges
from the test of his memory, the
consistency of his statements and the interest he may have in the
matter under enquiry.”
(e) A trial court is
obviously in a better position than the court of appeal to make a
finding on demeanour; and the court of appeal
“must attach
weight, but not excessive weight” to the trial court's finding.
It is as a general rule important that
a trial court should record
its impression of the demeanour of a material witness.
[16]
THE
ABSENCE OF THE EVIDENCE OF A MATERIAL WITNESS
[17]
21.
The defence of the Appellant was clear from the start. Constable
Ganare permitted him to leave. This vital witness was not called
and
there is not any explanation for this neglect.
22.
It is trite that an inference can be drawn that the prosecutor was
afraid that the witness would create contradictions which
could
impair the evidence of the single witness. (
S v Teixeira
1980 (3) SA 755
(A) at 763D–764B)
23.
The State ought to explain why the witness was not called or can make
the witness available to the defence. The fact that the
prosecutor is
of the view that the witness is not reliable is in itself no reason
not to draw a negative inference if the witness
is not called (
S
v Ngxumza and Another
2001 (1) SACR 408
(Tk) at 412d–413b,
R v Phiri
1958 (3) SA 161
(A)).
24.
The inference is always stronger against the side on whom the onus
rests. The onus is on the State to prove that the plea explanation
of
the Appellant that was repeated in his evidence and corroborated by
later events that will be discussed later, is not reasonably
possibly
true. If he subjectively believed that he had the permission to leave
there cannot be any possibility of him wilfully
contravening section
67(1)(a).
THE
ISSUE OF THE ARREST
25.
The above taints the State`s case. Add to this the fact that the
complainant testified that she was
going
to
arrest Appellant; not that she is placing him under arrest and that
the Appellant was allowed to drive his cousin to the place
where he
was to catch a ride. The explanation of the accused must be accepted.
The conviction can thus not stand.
[18]
THE
ASSAULT CHARGE
26.
The version of the State witnesses relevant to this charge is:
26.1 The petrol attendant
testified that the police officers were also on the premises and
approached them.
26.2 The officers then
tried to talk to Appellant and his wife. Appellant then hit the
female police officer on the chest.
26.3 The said officer
went back to the police vehicle and when she returned she informed
the Appellant that she “was going
to arrest him.”
26.4 The Appellant turned
around, got into the car and drove away.
26.5 The female officer
testified that on the day of the incident she and a male officer were
at the petrol station. They were both
in uniform.
26.6 They heard a
commotion and alighted from their vehicle to ascertain the problem.
When they arrived: “A lady who was screaming
there as though
she was not satisfied about something, and it seemed if she had an
altercation with one of the petrol attendants.”
26.7 She approached the
lady and told her to calm down and to explain what was happening. The
lady was accused two in this case.
26.8 Whilst speaking to
the second accused the Appellant grabbed and pulled her by her shirt.
She looked around and requested him:
“not to hold her in this
manner and because she is only there to ascertain as to what is
happening.”
26.9 Appellant then
started to scream at her that she will not speak to them. He
then slapped her on her chest.
26.10 Her colleague then
intervened. The Appellant did not stop and reached over the shoulder
of this officer and poked her on her
shoulder.
26.11 The complainant
then went back to the vehicle and called for back-up. She returned
and the Appellant again started to poke
her.
26.12 She then informed
him that she is going to arrest him. He informed her that she is “a
nobody” and got back into
his vehicle. She requested him to
exit the vehicle but he just closed it and drove off.
27.
The case for the Appellant was that:
27.1 A verbal altercation
erupted between him and the petrol attendant.
27.2 By this time, he had
already alighted from the car and his wife remained inside the
vehicle.
27.3 A female police
officer approached him. She said that she knows him, that he is a
taxi driver and that he is rude. The other
police officer arrived.
27.4 The female officer
was shouting at him. He, the Appellant was calm all the time. He
informed her not to speak to him like that
in front of his children.
She carried on speaking to him.
27.5 His wife opened the
window of the car and told her not to speak to her husband in this
manner. The other police officer arrived.
He told him to leave.
27.6 His wife was in the
vehicle at all times and did not insult anybody. He also did not
insult or assault anybody.
28.
The court
a quo
reasoned that the probabilities did not
support that of the accused.
28.1 She pointed out that
if the situation was as depicted by them, it would not have been
necessary for back-up vehicles to have
been involved.
28.2 The court
a quo
could not find any reason why two witnesses; the petrol attendant and
the police officer would collude against the Appellant. The
police official indicated that she did not know the Appellant from
before the incident.
28.3 If the incident
occurred as was described by the accused then the consequences would
have been very different.
28.4 In conclusion she
found the contradictions in the evidence of the accused in itself and
as compared with the evidence of the
State witnesses fatal for their
case.
29.
The reasoning of the court was correct and caused a legitimate
finding. The judgement on this charge is not a misdirection.
The
appeal on this charge will therefore be dismissed.
SENTENCE
30.
The trial court exercised its discretion
properly and the sentence is effective and proper.
The court
a
quo
measured all the factors with judicial wisdom. The sentence
does serve the aims of punishment, retribution, rehabilitation and
prevention effectively.
31.
ORDER
31.1 The appeal on the
conviction and sentence on the charge of assault (Count one) is
dismissed.
31.2 The appeal against
the conviction and sentence on the contravention of section 67(1)(a)
of the South African Police Services
Act 68 of 1995 (Count 4) is
upheld.
____________________
M. OPPERMAN, J
I
concur
______________
J.J. MHLAMBI, J
Attorney
for the Appellant: JD REYNECKE
Legal
Aid South Africa
1
st
Floor, Southern Life Building
41
Charlotte Maxeke Street
BLOEMFONTEIN
Advocate
for the Respondent: R HOFFMAN
Office
of the Director of Public Prosecutions
Waterfall
Centre
3
rd
Floor
Aliwal
Street
BLOEMFONTEIN
[1]
According to the Charge Sheet at page v of the record.
[2]
67. Interference
with members
.
—
(1) Any
person who—
(
a
)
resists or willfully hinders or obstructs a member in the exercise
of his or her powers or the performance of his or her duties
or
functions or, in the exercise of his or her powers or the
performance of his or her duties or functions by a member willfully
interferes with such member or his or her uniform or equipment or
any part thereof; or
(
b
) in order to
compel a member to perform or to abstain from performing any act in
respect of the exercise of his or her powers
or the performance of
his or her duties or functions, or on account of such member having
done or abstained from doing such an
act, threatens or suggests the
use of violence against, or restraint upon such member or any of his
or her relatives or dependents’,
or threatens or suggests any
injury to the property of such member or of any of his or her
relatives or dependents, shall be
guilty of an offence and liable on
conviction to a fine or to imprisonment for a period not exceeding
12 months.
[3]
The overarching grounds of appeal as set out in the application for
petition are that the court erred in making the following
findings:
Ad
conviction:
1.1
That the State proved the guilt of the Appellant beyond a reasonable
doubt;
1.2
That there are no improbabilities in the State`s version;
1.3
That the state witnesses gave evidence in a satisfactory manner;
1.4
That the evidence of the state witnesses can be criticized on
matters of detail only, whereas the evidence
was contrary in
material respects;
Ad sentence: That
sentence is shockingly inappropriate and does not take cognisance of
the factors in mitigation.
[4]
Accentuation added
[5]
Paragraph 4.1 Heads of Argument for the Appellant and the
Application for leave to Appeal on pages 97-99.
[6]
S
v Hadebe & others
1998 (1) SACR 422
;
[1997] ZASCA 86
(SCA) at
426a-f. In Hadebe (supra) this Court enunciated the correct approach
to resolving such a problem as follows at 426e-I,
with reference to
Moshesi & others v R
(1980-1984) LAC 57
at 59F-H: ‘The
question for determination is whether, in the light of all the
evidence adduced at the trial, the guilt
of the Appellants was
established beyond reasonable doubt. The breaking down of a body of
evidence into its component parts is
obviously a useful aid to a
proper understanding and evaluation of it. But, in doing so, one
must guard against a tendency to
focus too intently upon the
separate and individual parts of what is, after all, a mosaic of
proof. Doubts about one aspect of
the evidence led in a trial may
arise when that aspect is viewed in isolation. Those doubts may be
set at rest when it is evaluated
again together with all the other
available evidence. That is not to say that a broad and indulgent
approach is appropriate when
evaluating evidence. Far from it. There
is no substitute for a detailed and critical examination of each and
every component
in a body of evidence. But, once that has been done,
it is necessary to step 12 back a pace and consider the mosaic as a
whole.
If that is not done, one may fail to see the wood for the
trees.’
[7]
S v Mlambo
[1957] 4 All SA 326
(A) on 336. Snyman:
http://www.mylexisnexis.co.za/Index.aspx.
16
April 2016.
[8]
S v Mlambo supra
,
http://www.mylexisnexis.co.za/Index.aspx,
16 April 2016.
[9]
Schwikkard
et
al
,
Principles of Evidence at 30 4.
[10]
S v Kelly 1980 (3) SA 301 (A).
[11]
Cloete v Birch 1993 (2) PH F17 (E) 51.
[12]
At 30.4.
[13]
S v Civa
1974
(3) SA 844
(T)
.
[14]
S v Malepane and Another
1979
(1) SA 1009
(W)
1016H-1017A,
Rex v Dhlumayo and Another
1948
(2) SA 677
(A)
697
and Body Corporate of Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999
(1) SA 975
(SCA)
.
[15]
President of the Republic of South Africa and Others v South African
Rugby Football Union and Others
2000
(1) SA 1
(CC)
at
[79].
[16]
S v Mwanyekanga 1993 2 PH H54 (C). In the absence of findings
on demeanour the court of appeal is in as good a position
as the
trial court to assess credibility. Also see S v Jochems
1991
(1) SACR 208
(A)
.
[17]
Hiemstra, Criminal Procedure at section 208,
https://www.mylexisnexis.co.za/Index.aspx dated 23 October 2018.
[18]
Also compare the dictum in Rex v Sasa
1939 EDL 184
, Rex v Mazema
1948 (2) SA 152
(E), Rex v Kleyn and Another
1937 CPD 288
,
REX
Respondent
v
Wallendorf and Others
Appellants
1920
AD 383.