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[2017] ZAFSHC 182
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Lenkoane v S (A223/2016) [2017] ZAFSHC 182 (7 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Appeal
No.: A223/2016
In
the appeal between:
MOSINYA
ANNAH
LENKOANE
Appellant
and
THE
STATE
Respondent
CORAM:
REINDERS, J
et
LEFENYA, AJ
JUDGEMENT:
REINDERS, J
HEARD
ON:
28 AUGUST 2017
DELIVERED
ON:
7 SEPTEMBER 2017
[1]
The appellant, who was legally represented, was arraigned before the
District Court at Kroonstad on the following charges:
Count
1: Contravening sec 17(a) read with
sec 1
,
5
,
6
,
7
and
17
of the
Domestic Violence Act 116 of 1998
.
Count
2: Assault with the intent to
cause grievous bodily harm.
Count
3: Malicious injury to property.
[2]
On 14 April 2016 Appellant pleaded not guilty to the charges but was
convicted as charged and sentenced as fallows:
Count
1: R 1 000.00 or 4 months imprisonment, suspended for 5
years on conditions.
Count
2: R 1 000.00 or 4 months imprisonment, suspended for 5 years
on conditions.
Count
3: R 2 000.00 or 8 months imprisonment, suspended for 5 years
on conditions.
[3]
Leave to appeal against the convictions and sentences was refused by
the trial court but granted on petition by this court in
respect of
both convictions and sentences.
[4]
Heads of argument on behalf of the State was prepared by Ms Moroka
but Ms Sekoena appeared before us in court. The State does
not
support either the convictions or the sentences imposed by the trial
court.
[5]
The complainant in respect of all three charges is Mr Lereko David
Lenkoane (Mr Lenkoane), the husband of the accused. The appellant
stood accused of contravention of a protection order in that she
called Mr Lenkoane a bitch, assaulting him by hitting him with
an
iron bar and damaging the windows of a property with
such damages to be in
the
amount of R 1 800.00 Mr Lenkoane was a single
witness as to these incidents (the "incidents") which,
according to the indictments, took place on 29 December 2015.
[6]
An application of the necessary caution in respect of a single
witness requires, in essence, that the court satisfy itself that
despite the defects, shortcomings and contradictions in such
evidence, the truth has been told and that the complainant's evidence
is trustworthy.
See:
S
v
Sauls
1981 (3) SA 180
(A)
[7]
The magistrate in his judgment indicated that he was "not going
to repeat the evidence before court". From a reading
of the
record the upshot of Mr Lenkoane's evidence was that he was estranged
from the appellant and stayed at his parental home
at the time of the
incidents. Around 19h00 on that day he heard windows breaking outside
the house and on stepping out of the house
he was struck by appellant
on the head with an iron bow. Three windows were broken and he
obtained a quotation (Exhibit
"A", ''the quotation")
for repair of the windows, amounting to R 1 800.00. After going to
the police he went to
hospital the next day and the findings of the
medical practitioner were recorded on a J88 (Exhibit B, "the
J88'). No credibility
finding on the testimony of Mr Lenkoane was
made by the court a quo in its judgment, but the magistrate indicated
that corroboration
for the complainant's evidence could be found in
"much more aspects that
(sic)
only other
witnesses."
[8]
On the papers and in oral evidence by Mr Reyneke it was contended
that the court a quo erred in convicting the appellant in
respect of
each of the charges against the appellant. He alluded these,
submitting that the contradictions in the evidence of Mr
Lenkoane are
materially affecting his credibility and reliability to such an
extent that I can find that the court a quo erred
in accepting the
evidence of Mr Lenkoane.
[9]
In his evidence-in-chief Mr Lenkoane testified that he was lying in
bed on 29 December 2015 when the incidents occurred. This
was
confirmed by him after a question posed by the prosecutor, and also
according to his statement in relation to the incidents.
After being
confronted with the date of the quotation being 29 December 2015, he
changed his version during cross-examination and
indicated that the
accident actually occurred on 28 December 2015. Hereafter he
confirmed that the incident occurred on the 28
th
and that
he
only went to the police on the 29
th
.
[10]
The learned magistrate dealt with this discrepancy as follows:
"And
then there is the quotation. Yes the quotation is 29 December, but
one can see, anyone can see and this is only hearsay
evidence, but
what is permissible, and the Court can take notice of it, is that he,
the complainant did make plans to get
a quotation. But what is
hearsay and what we do not have to, or must not speculate about is
that it is obvious that the person
that made this quotation had to
make a mistake on it, because it is from Sakia Madise to Sakia
Madise. Obviously that is wrong."
[11]
The prosecution did not call the author of the quotation nor did the
magistrate. I am of the view that the court a quo misdirected
itself
materially in speculating about the reason for the discrepancy in the
dates which were relevant in respect of the
incidents. The
appellant stood accused of having committed the crimes on 29 December
2015, and not
28
December 2015. In accepting the evidence of Mr Lenkoane, the court a
quo should have found that no convictions can follow on
a date which,
according to the charge sheets, did not accord with the evidence by
the complainant.
[12]
In respect of the charge of contravening a protection order, Mr
Lenkoane testified in chief that the appellant had accused
him of
sleeping with different women and being a prostitute. Only after the
prosecutor led him in this regard, he indicated that
appellant had
called him a bitch as indicated in the charge
sheet. Even though it might sound insignificant,
in my view this
impacted negatively on the credibility of Mr Lenkoane when taking a
holistic view of all the discrepancies and
inconsistencies in his
evidence as alluded to above.
[13]
Mr Lenkoane testified that he did not sustain any lacerations from
the alleged blow to his head, but it was painful and swollen.
He was
confronted with the fact that no mention is made on the J88 of any
swelling. A close perusal of the J88 indicates that Mr
Lenkoane was
examined on 30 December 2015. Not only is the conclusion by the
doctor illegible, but the sketches therein do not
indicate any
injuries to any part of the body of Mr Lenkoane and thus does not
support the injuries as alleged. The prosecution
did not call the
doctor to testify on his findings, nor did the court a quo. The
magistrate however dealt with this discrepancy
as follow:
"And
then there is a J88, no one can blame the complainant that no one
cannot read what the doctor said there....But there
is a word here
that one can see, sustained something. It is not for the court to
guess, but it is unfair to put it to the feet
of the complainant to
say that the doctor did not mention something, because something is
mentioned, but it cannot be read."
[14]
In this regard the magistrate erred by speculating in favour of the
complainant and finding that the J88 corroborated Mr Lenkoane
in
respect of the charge of assault with the intent to do grievous
bodily harm.
[15]
In respect of the charge on malicious damage to property, the court a
quo found the appellant guilty as charged, with the amount
of the
damage to be R 1 800. To prove its case the state relied on a
quotation in respect of eight windows. Yet Mr Lenkoane testified
that
only three windows were broken. The magistrate did not even make any
mention of this discrepancy. In my view this aspect is
indeed
important as it impacts unfavourably on the evaluation of the
trustworthiness of the evidence of Mr Lenkoane as a single
witness.
[16]
The appellant must convince us, on adequate grounds, that the trial
court was wrong in accepting the evidence of the complainant.
See:
S
v Francis
1991 (1) SACR 198
(A) at 204 d-e.
[17]
I am of the view that the matter before us warrants interference with
the trial court's evaluation of the testimony by Mr Lenkoane.
I have
indeed been convinced by the appellant on the grounds as set out
herein above, that the trial court erred in accepting the
version of
Mr Lenekoane and convicting the appellant as charged. The convictions
cannot stand and should be set aside. It follows
that the appeal
against the sentences imposed should also succeed.
[18]
Consequently I make the following order:
18.1
The appeal succeeds.
18.2
The convictions and sentences are set aside.
____________________
C.
REINDERS, J
I
concur.
____________________
B.R.
LEFENYA, AJ
It
is so ordered.
On
behalf of the appellant:
Mr. D. Reyneke
Instructed by:
Justice Centre
BLOEMFONTEIN
On
behalf of the respondent:
Adv. M. Sekoena
Instructed by:
Director: Public
Prosecutions
BLOEMFONTEIN