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[2016] ZANCHC 12
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De Bruin v S (CA&R135/2014) [2016] ZANCHC 12 (29 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
CA&R
135/2014
DATE
HEARD:
25/01/2016
DATE
DELIVERED:
29/01/2016
In
the matter between:
GERT
DE
BRUIN
Appellant
and
THE
STATE
Respondent
Coram:
Olivier
J
et
Pakati J
JUDGMENT
Olivier
J
[1.]
The
appellant appeared in the Magistrate’s Court, De Aar, on
charges of assault (count 1) and of having contravened a protection
order (count 2)
[1]
. In
count 1 it was alleged that the appellant had on 15 January 2013
assaulted Mrs De Bruin, his wife. In count
2 it was alleged
that on 17 January 2013 the appellant had “
assaulted,
shouted the complainant
(
sic
)
and
threw her with stones and threatened to kill the complainant
”
[2]
.
[2.]
The
appellant pleaded not guilty to both counts. Apart from
admitting the existence and his knowledge of the protection order,
as
far as count 2 was concerned, he denied all the other allegations.
[3.]
At
the close of the case for the prosecution the appellant was
discharged
[3]
on count 1
[4]
.
[4.]
The
appellant was eventually convicted on count 2, on the basis of having
assaulted the complainant by throwing her with a stone.
He was
sentenced to 3 years imprisonment, conditionally suspended for a
period of 5 years.
[5.]
The
appellant at a later stage applied for leave to appeal against his
conviction and sentence, as well as for condonation for the
late
filing of that application. The Magistrate, Mr Abrahams,
removed the application from the roll because the appellant’s
attorney had not filed a power of attorney.
[6.]
The
application was then re-enrolled at a later stage. The
Magistrate found that there was no satisfactory explanation for
the
failure to file the application for leave to appeal timeously and
dismissed the application for condonation on that basis.
[7.]
The
appellant was eventually on petition granted leave to appeal against
his conviction and sentence.
[8.]
Although
the Magistrate did, in considering the application for condonation,
make reference to the need to have regard to the prospects
of success
of an appeal when considering an application for condonation
[5]
,
he failed to do so. He did not even so much as refer to the
evidence and to his findings. As will appear from what
follows,
the prospects of a successful appeal on the merits by far outweighed
any criticism that could be levelled against the
explanation
proffered for the delay
[6]
.
[9.]
Both
the application in the Magistrate’s Court and the appellant’s
petition included an application for leave to appeal,
as well as the
grounds of appeal. It would therefore in the circumstances not
really have made sense to make a direction
as envisaged in section
309C(7)(b)(ii) of the
Criminal
Procedure Act
.
Another possible approach on petition, and having found that
condonation should have been granted, would have been to direct
that
the appellant (once again) approach the Magistrate for leave to
appeal
[7]
. In view of the
Magistrate’s conduct towards the appellant during the trial,
and to which I will revert at a later
stage, this would in my view
not have been appropriate.
[10.]
As
regards count 2 the prosecution presented only the evidence of the
complainant about the alleged incident at the house of the
appellant
and the complainant. According to her the appellant had arrived
at home in an intoxicated state. There was
an altercation
between the two of them about the appellant closing or locking a
door. She struck the appellant on his foot
with a stone and ran
away. The appellant then threw a stone at her. She ducked
and the stone hit her on her hip, causing
a bruise. She called
the police and when they arrived the appellant was arrested.
[11.]
Const
N E Tshaya, who attended the complaint and arrested the appellant,
testified that the appellant had asked the complainant
whether she
had called the police for him and that he had promised that he would
come back for her. She also testified that
the complainant had
reported to her that the appellant had kicked her.
[12.]
The
prosecution presented no other evidence in respect of count 2,
despite the fact that according to the complainant the incident
would
have been witnessed by their neighbour, and to an extent also by
their 28 year old daughter.
[13.]
According
to the appellant he arrived home sober. There was an
altercation between him and the complainant and he then left
with his
friend, Mr Matthews Botma. When he returned the complainant was
unhappy about the fact that their son had disappeared
with money she
had entrusted to him. The appellant went to sleep. The
police then arrived and arrested him.
[14.]
In
his judgment the Magistrate found that the complainant had been a
poor witness who had not been able to furnish a coherent version
of
the events of the particular day. The Magistrate went on,
however, to point out that not every error made by a witness
would
impact on the witnesses’ credibility. According to the
Magistrate the complainant had, despite not having been
able to
commit to any detail in this regard
[8]
,
and despite not having been able to explain how her ducking to avoid
the stone hitting her head had ended in the stone hitting
her on her
hip, remained consistent in her version that the appellant had thrown
a stone which had hit her on her hip. It
appears as though the
Magistrate had, on the basis of this line of reasoning, concluded
that the complainant had indeed been a
credible witness in this
respect.
[15.]
The
Magistrate criticised the appellant for not being able to explain why
the complainant would falsely implicated him. The
Magistrate
also found that it had been put to the complainant, in
cross-examination on behalf of the appellant, that there had
been
nobody at home when the appellant arrived there, and that this was
inconsistent with the appellant’s evidence.
[16.]
It
is trite that a court of appeal will not readily interfere with the
factual and credibility findings of a trial court.
It will,
however, do so where they are clearly wrong, and especially where
they are not exclusively based on the demeanour of a
witness, but
rather on the evidence which appears on record
[9]
.
[17.]
The
Magistrate’s reasoning that the credibility of the complainant
was not affected by the so-called “
errors
”
in her evidence is at odds with his finding, in the ruling in the
application in terms of section 174 of the
Criminal
Procedure Act
,
that “
the
evidence is of such a bad quality that the credibility of the
witnesses is seriously affected
”.
[18.]
The
Magistrate reasoned, in his judgment and with regard to the quality
of the evidence of the complainant and of the appellant,
that “
die
beste van die slegste … is die feit dat die klaagster volhou
dat sy met die klip aangerand is
”,
and found that therefore the appellant had thrown the stone at the
complainant.
[19.]
Such
an approach would have been completely wrong. The mere fact
that the complainant had persisted with her allegation of
having been
hit by a stone would not have been decisive in itself and it would
not have rendered irrelevant the criticism against
her evidence about
how exactly that had happened. The complainant initially, for
example, claimed not to have known where
the appellant was when he
threw the stone at her, which led to the Magistrate asking her how
she would then have known when to
duck. Like with many other
questions, she avoided answering this one. In re-examination
the complainant contradicted
herself by claiming to have seen the
appellant throwing the stone.
[20.]
The
Magistrate failed to deal with the complainant’s inability to
explain how a stone which had been on its way to hit her
against the
head, had ended up hitting her on the hip. He also failed to
take into account the complainant’s obvious
attempt to adapt
her evidence to a version that she had, instead of ducking, actually
jumped up. This was not initially the
complainant’s
evidence. Her evidence was that she was running away from the
appellant when she was hit with the stone.
When the possible
explanation that she had jumped up was offered to her in
cross-examination, she “
jumped
”
at the opportunity and promptly adapted her evidence to this effect.
[21.]
This
is really a perfect example of a case where a witness’s lack of
credibility, and the poor quality of the witness’s
evidence, is
apparent from the record.
[22.]
The
Magistrate also failed to consider the fact that the complainant had,
on her own version, not mentioned the bruise on her hip
to the
police. This would have been the obvious thing to do if it had
been precisely that bruise that had led to her calling
the police.
[23.]
The
poor quality of the complainant’s evidence is exacerbated by
the fact that neither the evidence of the neighbour nor the
evidence
of the complainant’s daughter was presented. At the stage
when the appellant’s case was closed, there
was no reason on
record for the conspicuous failure of the prosecutor to call any of
these people to testify.
[24.]
The
complainant emphatically denied that the appellant had during the
alleged incident threatened to kill her; this while the charge
included an allegation to this effect. Her evidence that only
one stone was thrown at her, was also inconsistent with the
allegation in the charge that the appellant had thrown stones
(plural) at her. These allegations could only have come from
the evidence at the disposal of the prosecutor, and most probably
from the statement of the complainant.
[25.]
When
the appellant’s attorney attempted to cross-examine the
complainant on the contents of that statement, presumably because
they were inconsistent with her evidence, the complainant alleged
that she had never been given an opportunity to explain to the
police
what had happened on the particular day and that whatever the police
official had written in the statement did not come
from her.
The police official was never called to testify and the statement was
never admitted into evidence.
[26.]
As
regards the appellant’s evidence, he of course had no duty at
all to explain why the complainant would falsely implicate
him.
Although it is correct that it was put to the complainant that, when
the appellant arrived at home from work “
toe
is daar niemand by die huis nie
”,
this should be viewed in context.
[27.]
In
the first place the statement pertained to the time before the
appellant left with Mr Botma, and not to the stage when he returned
and when he, on the complainant’s version, assaulted her.
[28.]
Secondly
it is clear from the context that the intention had not been to state
that not even the occupants of the house, and more
specifically the
complainant and the daughter, had been present. The statement
that there had been nobody at the house, was
part of a broader
statement to the effect that the complainant had been going on
[10]
about their son with the drug problem, which clearly implied that the
complainant had indeed been there.
[29.]
This
statement was furthermore followed by a statement that the daughter
of the parties had been present when the appellant arrived
from work.
[30.]
To
have isolated the part about there not having been people at home
from the rest of that statement, and from the statements following
it, was incorrect and unfair.
[31.]
That
the appellant had, upon the arrival of Const Tshaya, asked the
complainant whether she had called the police would not, on
the
appellant’s version, have been strange. It would have
been just as consistent with the appellant not having done
anything
to contravene the protection order and being surprised by the arrival
of the police. The question would not, as
the Magistrate seemed
to have found, have justified the inference, to the exclusion of any
other reasonable inference, that the
appellant had known why the
complainant had called the police.
[32.]
In
the Magistrate’s judgment no mention is made of the fact that
the complainant reported to Const Tshaya that the appellant
had
kicked her, which would of course have been completely irreconcilable
with the complainant’s evidence about the events
of 19 January
2013. On the evidence of Const Tshaya this would have been the
only method of assault that the complainant
had described to her, and
Const Tshaya made no mention of the appellant mentioning anything
about being hit by a stone.
[33.]
In
my view the evidence as a whole did not by any stretch of the
imagination justify a finding, beyond reasonable doubt, that the
appellant had indeed thrown a stone at the complainant. The
appeal should therefore succeed on this basis.
[34.]
This
makes it unnecessary to consider the ground of appeal that the
Magistrate had appeared biased. I do however feel compelled
to
deal with the Magistrate’s conduct, albeit very briefly.
[35.]
When
the appellant sat down before the complainant started testifying,
without having been granted permission to do so by the Magistrate,
the Magistrate sarcastically asked him whether he was tired.
This despite the fact that the appellant’s attorney had
explained that she may have been responsible for that. It does
not appear whether the appellant was eventually allowed to
sit down
during the evidence of the complainant.
[36.]
The
same thing happened when leave to appeal was applied for. The
appellant was under the impression that he could sit, but
the
Magistrate apparently for some reason expected him to remain standing
during the application and asked the appellant’s
attorney “
Mev
Dikabalo is u kliënt siek of is hy moeg…
”.
[37.]
It
also has to be said that the Magistrate’s choice of language
left much to be desired. Words like “
hel
”
and “
neuk
”
are described in the
Verklarende
Handwoordeboek van die Afrikaanse Taal
[11]
as words not ordinarily used in mixed company and are not expected in
a judgment.
[38.]
The
most shocking of all, however, was the Magistrate’s outburst in
his judgment on sentence, when he accused the appellant
of being a
coward and a so-called “
moffie
”.
Language like this is completely unbecoming of a presiding officer
and must be condemned in the strongest possible
terms. What is
even more unfortunate is that it appears from the record that people
who had heard this in court later repeated
the Magistrate’s
words to ridicule the appellant.
[39.]
Then
there was also the manner in which the Magistrate questioned the
appellant. Most of the Magistrate’s question could
not by
any stretch of the imagination be seen as having been aimed at
clearing aspects up. Most of them appeared much more
like
questions which one would expect in cross-examination. The
appellant was confronted about things he had according to
the
Magistrate not told to his attorney, about things not put to
witnesses and about evidence not disputed in cross-examination.
In view of the conclusion to which I have already come regarding the
appeal and the conviction, it is unnecessary to deal with
the
Magistrate’s questioning of the appellant in any further
detail.
[40.]
In
the premises the following order is made:
THE APPEAL SUCCEEDS
AND THE CONVICTION AND SENTENCE ON COUNT 2 ARE SET ASIDE.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
agree.
______________________
B
M PAKATI
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant:
Mr A Van Tonder
Legal
Aid South Africa
For the
Respondent: Adv
J Mabaso
Office
of the Director of Public Prosecutions
[1]
In contravention of the
provisions of section 17(a) of the
Domestic
Violence Act
, 116
of 1998.
[2]
The complainant once again
having been his wife.
[3]
In terms of section 174 of
the
Criminal
Procedure Act
, 51
of 1977.
[4]
Although his attorney had applied for his discharge on both counts.
[5]
Compare
Van
Wyk v S; Galela v S
[2014] JOL 32436
(SCA) para [14];
S
v Ntskoane
1976
(2) SA 401
(O) at 404A
[6]
Compare
S
v Senkhane
2011
(2) SACR 493
(SCA) para [27]
[7]
Compare the provisions of
subsection 7(b)(i) of section 309C of the
Criminal
Procedure Act
.
[8]
Like where the appellant got
the stone from.
[9]
Compare
Minister
of Safety and Security and Others v Craig and Others NNO
2011 (1) SACR 469
(SCA) para [58]
[10]
“
gaan aan
”
[11]
Odendal and Gouws
,
4
th
Edition, page xviii - xix