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[2017] ZAKZPHC 7
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Khumalo and Others v S (AR510/16) [2017] ZAKZPHC 7 (3 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: AR510/16
In
the matter between:
XOLANI
KHUMALO Appellant
1
JABULANI
KHUMALO Appellant
2
KHETHEYAKHE
KHUMALO Appellant
3
and
THE
STATE Respondent
APPEAL
JUDGMENT
Delivered
on: 03 March 2017
ME
NKOSI AJ:
[1]
This is an appeal by the three appellants, a father and his two sons,
against both their conviction and sentences by the court
a quo
for the crimes of assault with intent to do grievous bodily harm
and malicious damage to property. Each appellant was
convicted of
both crimes on the doctrine of common purpose and sentenced to
imprisonment for a period of three years. The appeal
is with the
leave of the court
a quo
.
[2]
The incident that led to the appellants’ conviction and
sentence is alleged to have occurred on 02 April 2015. The appellants
were charged with assaulting the complainant, Philani Hadebe, with
the intent to cause him grievous bodily harm, maliciously causing
damage to his vehicle and the theft of certain items from the vehicle
during the course of the assault upon the complainant. They
all
pleaded not guilty to all three charges, with the third appellant
denying having been at the scene of the incidents.
[3]
There are two conflicting versions given by the complainant and the
appellants, respectively, as to what led to the complainant’s
alleged assault by the appellants. To say the least, neither one of
the two versions makes much sense, although I find the complainant’s
version sounds more bizarre for the reasons set out hereunder.
[4]
The complainant’s version, briefly stated, is that he was
driving along a certain road in KwaHaza, near Pietermaritzburg,
when
he came across the three appellants walking alongside the road. For
some inexplicable reason, they then stopped in the middle
of the
road, which caused the complainant to stop his vehicle as he was
afraid to drive past because there were some people working
on the
road.
[1]
[5]
After he had stopped, he was approached by the third appellant who
asked him why he “left his sons on the veld”
[2]
,
whatever that was supposed to mean. There is nowhere in the appeal
record where an explanation is given by the complainant or
any of the
other witnesses as to what was meant by the third appellant when he
allegedly asked the complainant why he “left
his sons on the
veld.” Strangely enough, neither the magistrate nor the
prosecutor had bothered to ask the complainant to
clarify the meaning
of that question.
[6]
In any event, it would seem that the complainant was aware of what
was meant by the third appellant, because, instead of asking
him for
an explanation of his aforesaid question, his evidence was that “I
apologised to him and told him that we would later
on discuss that
issue.” However, no further mention is made of “that
issue” anywhere in the appeal record.
[7]
Nothing was said by the complainant about the third appellant’s
response to his aforesaid apology. According to his evidence,
he was
still sitting in his car when one of the appellants opened his car
door, and the second appellant pulled him out. He was
then punched by
the third appellant, who accused him of being arrogant and said he
should be killed and his house should be burnt.
[3]
[8]
The complainant further testified that he somehow managed to get back
into his car, and drove past the appellants to his friend’s
house, Nkosinathi Cebekhulu, who was called as the second witness for
the state. He said the appellants followed him to Cebekhulu’s
house, where he was assaulted by all three appellants, with the
second appellant and/or the third appellant using a stick.
[4]
[9]
Just like the complainant’s version of what triggered off his
alleged assault by the third appellant on the street, his
version of
what triggered off his alleged assault by all three appellants
outside Cebekhulu’s house is equally confusing.
According to
his evidence, this was the continuation of the first assault incident
by the third appellant on the street, and it
occurred without any
provocation.
[10]
The complainant’s version of the second incident is
corroborated to a certain extent by the evidence of the other two
state witnesses, namely, Cebekhulu
[5]
and Simphiwe Sithole.
[6]
Both
Cebekhulu and Sithole testified to having witnessed the assault of
the complainant by the first and second appellants. However,
the
complainant’s evidence about the third appellant having
participated in his assault was not corroborated by either one
of the
other two witnesses for the state. This means that the third
appellant’s alleged participation in the complainant’s
assault was based on the evidence of a single witness, that is the
complainant himself and, therefore, had to be approached with
caution.
[11]
Cebekhulu’s evidence was that he did not
[7]
see the third appellant at the scene of the incident. Sithole’s
evidence, on the other hand, was that he saw the third appellant
coming to the scene of the incident, but he did not see what he
did.
[8]
Therefore, in the light
of the alibi defence raised by the third appellant, which was
corroborated by his wife, I find that the
state’s case against
the third appellant was not sufficiently strong to establish the
presence of the third appellant at
the scene of either the first or
second incident.
[12]
Besides, even if the third appellant’s alibi defence was to be
rejected as false, I find that the state had failed to
prove beyond
reasonable doubt that the third appellant took any part in the
assault of the complainant or caused damage to his
vehicle. For this
reason, I do not believe that the doctrine of common purpose is
applicable to the third appellant either in respect
of the assault of
the complainant or the extensive damage to his vehicle. I accordingly
find that the court
a quo
had erred in convicting the third
appellant of both crimes.
[13]
I am now proceeding to consider the first and second appellants’
version as to what triggered off the confrontation between
them and
the complainant. Their version, briefly stated, is that the first
incident of their confrontation with the complainant
was triggered
off by the complainant’s allegation that their brother, Sabelo,
who is now deceased, had sworn at him.
[9]
[14]
They testified that they discussed the matter with the complainant
and thought that it had been resolved. They said that the
complainant
then drove away in the opposite direction. However, he later drove
back at high speed and hit the second appellant
with the side of his
vehicle.
[10]
According to the
first and second appellants, it is this incident which led to their
second confrontation with the complainant
outside Cebekhulu’s
property.
[15]
In essence, the first and second appellants deny that they assaulted
the complainant. Instead, they allege that the complainant
engaged in
a fist fight with the first appellant.
[11]
This is denied by the complainant, whose evidence about the
said incident of assault is corroborated by Cebekhulu and Sithole
in
all material respects. It was the evidence of all three state
witnesses that the complainant was assaulted by the first and
second
appellants, together with their deceased brother, Sabelo.
[16]
Therefore, having considered in its totality all the evidence led
before the court
a quo
, I think the learned magistrate was
correct in her finding that the complainant’s version, insofar
as it is corroborated
by Cebekhulu and Sithole in respect of the
first and second appellants, is highly probable and reasonably
possibly true.
[17]
Consequently, I am satisfied that the court
a quo
was correct
in its finding that the state had succeeded in proving beyond
reasonable doubt that the first and second appellant
were guilty of
having assaulted the complainant. I am, however, not in agreement
with the finding by the court
a quo
that such assault was with
an intention to cause the complainant serious bodily harm. However, I
believe that the court
a quo
erred in its finding that the
state had also succeeded to prove beyond reasonable doubt that the
damage to the complainant’s
vehicle was caused by any one of
the three appellants. I find that there was simply no evidence to
sustain such a finding.
[18]
Insofar as the sentence imposed by the court
a quo
on the
first and second appellants is concerned, I find that the learned
magistrate had unduly emphasized the seriousness of the
offence over
the personal cumulative circumstances of the appellants when she
sentenced them to three (3) years imprisonment for
their first
offence. Taking into account the cumulative personal circumstances of
the first and second appellants, I find that
the sentence imposed on
them induces a sense of shock.
[19]
In the circumstances, I propose that the following order should be
made:
(a) that the third
appellant’s appeal against both his conviction and sentence by
the court
a quo
is granted;
(b) that the first
and second appellants’ appeal against their conviction in
respect of count 1, assault with intent
to do grievous bodily harm,
is set aside and is replaced with a conviction of assault;
(c) that the first and
second appellants’ appeal against their conviction in respect
of count 2, malicious damage to property,
is granted;
(d) that the first and
second appellants’ appeal against the sentence of three (3)
years imprisonment imposed upon them by
the court
a quo
is
granted, and is replaced with the sentence of:
(i) six (6) months
imprisonment for the first appellant, which is wholly suspended for a
period of five (5) years on condition that
he is not again convicted
of the offence of assault, or any other similar offence involving the
use of violence which is committed
during the period of suspension;
(ii) six (6) months
imprisonment of the second appellant, which is wholly suspended for a
period of five (5) years on condition
that he is not again convicted
of the offence of assault, or any other similar offence involving the
use of violence which is committed
during the period of suspension.
_________________
ME
NKOSI AJ
I
agree:
__________________
HADEBE
AJ
Date
of hearing
: 23
February 2017
Date
delivered
: 03
March 2017
Appearances
:
For
the Appellant
: Adv WAJ
Nicholson
:
20
th
Floor, The Marine
Durban
For
the Respondents
:
Adv ZG
Mshololo
Instructed
by
: The
Director of Public Prosecutions
Durban
[1]
Page 5 lines 1-4 of the appeal record
[2]
Page 5 line 6 of the appeal record
[3]
Page 6 lines 1-9 of the appeal record
[4]
Pages 24-25 of the appeal record
[5]
Pages 26 to 38 of the appeal record
[6]
Pages 39 to 46 of the appeal record
[7]
Page 35 lines 1-8 of the appeal
record
[8]
Page 44 lines 18-25 of the appeal
record
[9]
Pages 48, 49 and 57 of the appeal
record
[10]
Page 49 lines 10-15 and page 57 lines
18-25 of the appeal record
[11]
Page 49 lines 21-25; page 50 lines
1-4 and 58 lines 20 of the appeal record