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[2016] ZAGPPHC 107
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Malherbe v S (A921/14) [2016] ZAGPPHC 107 (2 March 2016)
REPUBLIC
OF SOUTH AFRICA
OFFICE
OF THE CHIEF JUSTICE
(GAUTENG
DIVISION. PRETORIA)
APPEAL
CASE NO: A921/14
DATE:
02 MARCH 2016
In
the matter between:
DEON
AART
MALHERBE
.....................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
MOTEPE
AJ:
[1]
This is an appeal against the conviction of the appellant on a
count of common assault and a sentence of a fine of R3000.00 or three
months imprisonment.
[2]
On petition, leave to appeal against both the conviction and
the sentence was granted on 12 November 2014.
[3]
The facts in this appeal are largely common cause. The
appellant and the complainant were married to each other but were
separated
at the time of the incident. They have two minor children;
daughters aged 4 and 6 at the time of the incident. They were staying
with the appellant at the time, pursuant to an order of the High
Court. The complainant had visitation rights in respect of the
minor
children and was entitled to take them away for certain weekends.
[4]
On a certain occasion the complainant was returning the minor
children to the appellant after one such weekend.
[5]
The complainant parked her motor vehicle in the garage. After
the children went into the house, she started packing some of the
items from the house into her car. It appears to have upset the
appellant that she was taking items from the house without informing
him. He then wished her to take more than what she had intended to
taking. He physically took some of the items and packed them
in her
car, including a sewing machine. The complaint locked her car so that
the appellant would not be able to load more items
into the car. She,
however, left the passenger window open. The appellant collected a
number of her books and loaded them on the
driver’s seat.
[6]
It would appear that some of the books were on the garage
floor. This agitated the complainant who had a strong love for her
books.
The appellant denied that some of her books were on the garage
floor.
[7]
The appellant went back into the house to fetch more of her
books. He testified that he collected a stack of these books. He had
to balance the stack of books with his chin. According to him, the
complainant came from the garage and confronted him complaining
about
the way he allegedly was mistreating her books. She advanced towards
him causing the books to fall. The complainant denies
having charged
into the appellant. She testified that she was upset about the manner
in which he treated her books. She threatened
to have him charged
with malicious damage to property if he continued. According to her,
they stood approximately 1 metre apart
at that stage.
[8]
It is what happened subsequently which is in contention. The
complainant testified that the appellant then walked into her and
caused
her to fly through the air for approximately 1 to 2 metres and
to fail on her arm breaking her wrist in the process.
[9]
The
appellant testified that as the complainant was advancing
aggressively towards him, getting close to his face, challenging him,
he
“
took
her by the upper arms
"
and
“
just
pushed her away from
(him)
with
pressure
.
[1]
[10]
Later
in his evidence in chief, on a question from his counsel, the
appellant answered as follows:
“
And
you say, if i understand you correctly that she basicaily walked
backwards on her own. Is it not possible that she moved back
as a
result of your pushing herback?- -I did not use force to push her
back. I merely just stayed back.
COURT:
I did not get the answer?—I did not force her back. I just
moved her out of my personal space basically”
[11]
In
cross-examination, when it was put to him that he grabbed both her
arms, his answer was*1 did not grab her, I just merely pushed
her
away from me”.
[12]
In
paragraph 4.7 of his heads of arguments, Mr Van Twisk, on behalf of
the appellant, contended that after the complainant caused
the books
to fall down, the appellant merely took her “by her biceps to
stop her advancingHe contends that according to the
appellant,
u
the
complainant then back paddled, tripped and fell down”. The
evidence of the appellant referred above tells a different
story.
[13]
It
is trite that a Court of Appeal would be hesitant to interfere with
the factual findings and evaluation of the evidence by the
Trial
Court.
[2]
It will only interfere where the Trial Court has materially
misdirected itself insofar as it’s factual and credibility
findings
are concerned.
[14]
In
casu, there are no material misdirections or exceptional
circumstances that warrant interference of the Appeal Court on
conviction.
If anything, the evidence of the appellant confirms that
he pushed the complainant with force to move her away from his
personal
space.
[15]
I
agree with Mr Wilsenach for the respondent that the evidence points
to a direct intention on the part of the appellant, namely
to push
the complainant in order to protect his personal space and from
stopping her from coming to close and to challenge him.
[16]
It
is not the appellants case that he pushed the complainant in
self-defence. In any event, there is no suggestion, even on his
own
version, that the complainant was attacking him. If all that he
wanted was to keep her at bay, a mere outstretching of the
arm
without a push or applying pressure would have been sufficient to
keep her from his personal space.
[17]
In
the premises, I find that there are no grounds for interfering with
the conviction. With regard to the sentence, I cannot find
that the
sentence imposed is disturbingly inappropriate.
[18]
I
therefore propose the following order:
“
The
appeal is dismissed with costs”
Motepe
JA
(Acting
Judge of the High Court)
I
agree and it is so ordered.
Jansen
J
(Judge
pf the High Court)
Counsel
for the appellant: MH VAN TWISK
Attorneys
for the appellant: EUGENE BEYERS ATTORNEYS
1027
Stanza Bopape Street
Hatfield
Pretoria
Counsel
for the respondent: AP WILSENACH
Attorneys
for the respondent: The Director of Public Prosecutions
Pretoria
[1]
Record, page 134, lines 20 to 25 and page 135, lines 20 to 25
[2]
See R v Dhlumayo and Another
1948 (2) SA 677
(A); see also S v
Francis
1991 (1) SACR 198
(A) at 198j-199a; S v Hadebe & Others
1997 (2) SACR 641
(SCA) at 645E-F; S v Chabalala
2003 (1) SACR 134
(SCA) at 139H-140A