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[2016] ZAGPPHC 236
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Manzini and Others v S (A114/2015) [2016] ZAGPPHC 236 (26 February 2016)
REPUBLIC OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A114/2015
DATE: 26 February 2016
In the matter between:
EGYPT THOMAS
MANZINI
..........................................................................................
1ST
Appellant
JOHANNES THOMAS
MOTAU
.....................................................................................
2nd
Appellant
JURRY HEROLDT
MASHEGO
......................................................................................
3rd
Appellant
VUSIMUZI PETRUS
MAPHANGA
................................................................................
4th
Appellant
LEHLABANDA GIVEN
MAHLOKO
.............................................................................
5th
Appellant
VUMA ERNEST
MGWAMBE
..........................................................................................
6th
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
SWARTZ AJ:
1. This is an appeal against conviction
and sentence handed down by the Regional Court, Lydenburg, on 20
November 2013, on a competent
verdict of assault with the intent to
cause grievous bodily harm. The six appellants, all police officers
stationed at the Lydenburg
police station, were initially charged of
attempted murder. They pleaded not guilty and were legally
represented at the trial.
The regional magistrate sentenced
appellants one and five to three years imprisonment. Appellants two
and six were sentenced to
serve two years imprisonment. Appellants
three and four were sentenced to pay a fine of R20 000.00 or twelve
months imprisonment,
as well as a further two years imprisonment,
suspended for five years, on condition that they were not convicted
of any offence
involving violence. Appellants one, two, five and six
were granted leave to appeal against conviction and sentence.
Appellants
three and four, on application, were granted leave to
appeal against their conviction only.
2. On 25 April 2009, the complainant
was arrested and held in detention on a charge of armed robbery.
During his arrest he sustained
some injuries and was treated for this
by one Dr Kayembe. He had on a previous occasion been arrested, also
for armed robbery,
by appellant number one. On 29 April 2009, the
first appellant received information that the complainant, who was in
custody in
the police holding cells, illegally had a cellular phone
in his possession. The police investigated this. The complainant,
when
approached to surrender the cellular phone, refused to hand it
over and denied all knowledge. A cellular phone was indeed found
in
the police holding cells where the complainant was held together with
other inmates. A struggle ensued when the police officers
attempted
to remove the complainant from the holding cells. In the process,
some police officers as well as the complainant were
injured. On 30
April 2009 he received treatment, again administered by the very Dr
Kayembe. He complained of pain to his scrotum.
During a subsequent
operation, his right testis was removed.
3. It was in dispute, when exactly the
injury to the right testis occurred, that is, whether it was during
the injuries sustained
on the date of his arrest, 25 April 2009, or
at the incident of 29 April 2009. This issue occupied the mind of the
magistrate who
eventually convicted the appellants on the competent
verdict of assault with the intent to cause grievous bodily harm, as
opposed
to a conviction of common assault.
4. The main issue for determination
before us is, whether the injury that led to the removal of the right
testicle was sustained
on 25 or 29 April 2009. If so, if all the
accused before the magistrate were guilty of assault with intent to
cause grievous bodily
harm either through the existence of a common
purpose, active participation, a legal duty to act or, if they were
accessories after
the fact.
5. Counsel who appeared for the
appellants set out in great detail the timeline from the date of the
incident until the date when
the appellants eventually pleaded, being
a delay of 677 days. Appellant one eventually testified on 19 October
2012, being 1269
days after the incident occurred. The argument was
that, the magistrate erred in criticizing the appellants for
contradictions
in their evidence, when regard is had to the
inordinate delay in proceedings.
The same can be said of the complainant
and his witnesses' evidence. Over and above this, counsel for the
complainants argued that
the events happened rapidly and
unexpectedly. The incident turned into a brawl impeding the
opportunity for detailed and accurate
observation. She argued that
the contradictions amongst the State witnesses were not material, but
a guarantee of a lack of conspiracy
to falsely implicate the
appellants.
6. The test on appeal is whether the
trial court misdirected itself on the law when applying it to the
facts of this matter, justifying
this court's interference with the
conviction.
7. Regarding the injury suffered to the
right testicle, there remains uncertainty as to when exactly this
injury was suffered. The
complainant is adamant that he suffered the
injury during the events of 29 April 2009, when the police officers
assaulted him.
The State's expert medical witness, Dr Kayembe on the
other hand, testified that, his findings on examination are
consistent with
the injuries having been suffered on the day of his
arrest, 25 April 2009.
The record of proceedings clearly
demonstrates uncertainty surrounding this issue at the trial
proceedings. After giving evidence,
Dr Kayembe was requested to
return with hospital records to clarify the magistrate's concerns.
The record is silent thereafter.
Dr Kayembe did not give any further
evidence. The magistrate's reasons for judgment are that:
'The evidence of the doctor is also
clear in this regard. He testified that the injury to the testicles
of the complainant was probably
suffered on the 29th or the 30th. By
doing so he excludes the 25th. According to him he did see the
complainant on the 25th as
well as on the 30th. According to him the
complainant did not suffer new injuries on the 29th since the
injuries were the old ones
from the previous assault'.
It is impossible to follow the
reasoning of the magistrate as his comments are contradictory. Apart
therefrom, his conclusions are
not in line with the factual evidence
he was presented with. Apart from the complainant's evidence, the
independent medical expert
opinion of the State's own witness, Dr
Kayembe, which cannot be simply ignored, was to the effect that he
treated the complainant
after the assault of 25 April 2009. He came
back to the hospital on 30 April 2009. The reason for this was
related to the pain
experienced in his scrotum as a result of
injuries suffered during the assault of 25 April 2009. The only
logical conclusion to
be drawn, having regard to the independent
expert medical opinion, based on the medical history and findings of
Dr Kayembe, is
that the injury to the scrotum and the subsequent
removal of his right testes relates to injuries suffered on 25 April
2009. This
has nothing to do with the injuries suffered on 29 April
2009. The appellants were charged for events that had occurred on 29
April
2009, not 25 April 2009.
8. The complainant's evidence was that
appellants one, two, five and six respectively, assaulted him by
slapping, punching, kicking,
throttling and beating him with a plank.
Appellants three and four did not actively participate in the
assault. Appellants one,
two and five entered the cell and removed
him from the cell. The evidence of the Appellants was that he
resisted and in the process
they fell onto a table where the
complainant suffered an injury to his head. The Appellants were
charged of attempted murder following
this incident. The conviction
of appellants three and four resulted from their legal duty as police
officers to protect persons
from an assault and to take action
against the perpetrator.
The appellants deny that they had
illegally assaulted the complainant. He was aggressive towards them
when confronted with the issue
of illegally being in possession of a
cellular phone. The cellular phone was eventually found after the
search by the police. He
was injured when, after a struggle, they
fell onto a table when attempting to remove him from the holding
cell.
The trial court found that, although
there were minor contradictions between the complainant and his
eyewitnesses, their evidence
was credible and acceptable. He rejected
the version adduced by the appellants as false and unreliable.
Counsel for the respondent argued that
the totality of the evidence is indicative of the fact that there was
active association
in the commission of the offence. She argued that
the appellants are guilty as perpetrators, regardless of the degree
of participation.
She argued, rather unconvincingly, that, although
appellants three and four did not actively participate in the
assault, they associated
themselves with the assault and omitted to
prevent it.
A very difficult reading of the record
clearly demonstrates that the magistrate entered the arena, asked
leading questions and,
his active involvement was to such an extent,
that he could not differentiate the woods from the trees. He
misdirected himself
by incorrectly applying the law to the facts,
justifying this court's interference with the convictions. Although
there were minor
contradictions between the appellants, other than
what the magistrate found, their evidence was not riddled with
contradictions
justifying a rejection of their evidence as false
beyond reasonable doubt. The question to be considered is, whether
the evidence
of the appellants can be rejected as false beyond
reasonable doubt. The evidence overwhelmingly supports their version
that, reacting
on information received and, after attempting to
remove the aggressive complainant from the cell, a struggle ensued.
In the process
they fell, whereupon the complainant suffered an
injury to his head. I cannot find that this version is not reasonably
possibly
true. Towards the end of her argument, counsel for the
respondent correctly conceded that, in her words, the prosecution of
this
matter was imperfect. This is so, especially when regard is had
to the difficulties relating to the scrotum injury, dealt with above,
and the involvement of appellants three and four.
It is trite that there is no obligation
on the appellants to convince the court of their innocence. Their
version is reasonably
possibly true and for this reason alone, they
are entitled to their acquittal. See: S v Van der Meyden
1999 (1)
SACR 447
(W) at 448 F-G:
The onus of proof in a criminal case is
discharged by the State if the evidence establishes the guilt of the
accused beyond reasonable
doubt The corollary is that he is entitled
to be acquitted if it is reasonably possible that he might be
innocent...These are not
separate and independent tests, but the
expression of the same test when viewed from opposite perspectives.
In order to convict,
the evidence must establish the guilt of the
accused beyond reasonable doubt, which will be so only if there is at
the same time
no reasonable possibility that an innocent explanation
which has been put forward might be true. The two are inseparable,
each
being the logical corollary of the other.'See: S v Kubeka
1982
(1) SA 534
(W) at 537 F-H:
'Whether I subjectively believe (the
accused) is not the test I need not even reject the State case in
order to acquit him. I am
bound to acquit him if there exists a
reasonable possibility that his evidence may be true.
Although appellants three and four did
not lodge an appeal against their sentences,
this court has the discretion to
interfere with a sentence imposed by a lower court.
This is further necessitated by the
interference with the conviction itself.
Accordingly, I propose the following
order:
1. The appeal against conviction and
sentence by appellants 1 to 6 succeeds;
2. The order of the trial court is set
aside and replaced with the following order: The accused are found
not guilty and discharged'.
ACTING JUDGE OF THE HIGH COURT
E SWARTZ
I agree,
JUDGE OF THE HIGH COURT
M J TEFFO
FOR THE APPELLANT ADVOCATE: PF DE
NECKER
FOR THE STATE ADVOCATE: KM RENSBURG