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[2016] ZAGPPHC 735
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Baloyi v S (A283/15) [2016] ZAGPPHC 735 (23 June 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
23/6/2016
CASE
NO: A283/15
DATE
OF HEARING: 30 NOVEMBER 2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:-
THOMAS
BALOYI
Appellant
and
THE
STATE
Respondent
JUDGMENT
A.
INTRODUCTION: -
1.
The Appellant was convicted by the Magistrate, Pretoria North of
contravening Section 17(a) of the Domestic Violence Act, 116
of 1995.
He was sentenced to a fine of R1 200,00 or 4 months imprisonment,
which was wholly suspended for 3 years on condition
that he is not
found guilty of contravening the Domestic Violence Act
during his period of suspension.
2.
The Appellant now appeals his conviction before this Court of Appeal.
The Appellant further sought condonation in respect of
the late
filing of his appeal. The State did not oppose the condonation
application which was granted.
B.
BACKGROUND:-
3.
The Complainant and the Appellant at the time the said alleged
assault took place on Saturday, 25 June 2011, were a couple living
in
the same home with their children. The incident is alleged to have
taken place in the couple's bedroom.
Complainant's
version
4.
The Complainant testified that on the morning of 25 June 2011, the
Appellant returned from church, had a bath and thereafter
insulted
her in their bedroom. He belittled her by saying that she did not
qualify to be in their house and that she was not a
deserving wife.
5.
He then pulled the blankets off and dragged her forcefully out of
their bed. He pushed her, which caused her to fall over the
dressing
table chair. He then strangled her, kicked her and hit her with his
fist, threatening to kill her. Immediately thereafter
he left
the house.
6.
After he left, she then went into their children's bedroom and told
them of the assault. Thereafter she went to the clinic for
medical
help. In cross-examination she testified that she attempted to report
this incident to the police the next day. It was
further established
that the injuries recorded in the J88 mysteriously went missing. Same
could not be presented at the trial as
evidence.
The
Appellant's version
7.
The Appellant denies having assaulted the Complainant on the said
day. He testified that he went to work after returning from
the
church on that fateful Saturday morning. He persisted with his
version and, on his behalf, the following improbabilities in
respect
of the Complainant's testimony were pointed out:-
7.1 The children did not
witness the alleged incident and the testimony of the 12 year old son
is not only hearsay but contradicts
the Complainant's version in
various respects;
7.2 The children were
asleep in their own room and did not hear any noise;
7.3 The Complainant did
not sustain any injuries hence no medical record existed on the J88.
8.
In argument, counsel for the Appellant submitted that the State
failed to prove beyond reasonable doubt that the Complainant
was
intimidated or assaulted by the Appellant.
9.
The Appellant's version was corroborated by the daughter who
testified that it was her mother who was the troublemaker in their
family.
10.
The Trial Court approached the matter in a biased manner. It was not
impartial when allowing the parties to adduce their evidence.
In
other words the Court accepted the evidence of the 12 year old son
despite the contradictions therein.
C.
APPEAL:-
11.
On appeal the Appellant's grounds of appeal were the following –
11.1. The Complainant was
not a credible witness and moreso she was a single witness whose
evidence could not be relied upon by
virtue of the cautionary rule
principle;
11.2. There were material
contradictions between the testimony of the Complainant and the minor
child in that the son testified
that the Complainant suffered visible
injuries on her eye
"blue eye"
while the Complainant
testified that she was merely in pain. On this basis the Court should
have found that the Appellant's version
was reasonably possibly true,
and that the State was unable to prove the assault. The conviction
therefore should be set aside;
11.3. Furthermore, in
argument, it was submitted on behalf of the appellant that the act of
assault was a fabrication in that the
Complainant was in the process
of divorcing the Appellant at the time of the alleged assault. During
the time of the proceedings
the couple had already been divorced.
Complainant clearly had a motive to falsely accuse and implicate the
Appellant.
D.
ANALYSIS AND FINDINGS:-
12.
It is trite
law that the evidence of a single witness must, in order to lead to a
successful conviction, be clear and satisfactory
in every material
respect.
[1]
In
R v Mokoena
1932 (A) (OPD) 79 at 80 De Villiers JP stated:
"...
the
uncorroborated evidence of
a
single competent and credible
witness
is no doubt declared to
be
sufficient for a
conviction
...
but in my opinion that section should only be
relied upon where the evidence of the single witness is clear and
satisfactory in every material respect".
13.
Van Zyl J in
Zamani Cele v
State 2010 ZA KZPHC 26 at
paragraphs 23 and 24 affirmed the application of a single witness'
evidence, but pointed out the dangers
on its reliance as well. The
Court essentially found that:
Section
208
of the
Criminal Procedure Act, 51 of 1977
provides that an
accused may be convicted of any offence on the single evidence of any
competent witness. However where
Section 208
has been satisfied, the
cautionary rule, which would require corroboration, helps
reduce the risk of a wrong conviction.
By corroboration, is meant
other evidence which supports the evidence of the single witness and
which detracts from the evidence
of the accused and renders it less
probable upon one or more of the issues in dispute.
Thus
satisfaction of the cautionary rule does not
per se
justify
the conviction of the accused. The ultimate test is proof beyond
reasonable doubt, which depends upon consideration of all
the
evidence and the degree of safeguarding in the particular
circumstances of the case.
14.
A Trial Court should be cautious in convicting an accused if there is
doubt.
In
S v Van der Meyden
1999 (1) SACR 447
(W)
at
448f-g it was held:
'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.
There are not
separate
and
independent tests,
but the expression of
the
same test ...
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".
Thus
if at the end of the trial the Court is left in doubt about the guilt
of the accused, the accused is entitled to the benefit
of the
doubt
[2]
.
15.
This Appeal Court having heard counsel and having considered the
record is inclined to make a finding that the Trial Court had
not
considered the single witness evidence with caution.
16.
It was patently evident that the Complainant's testimony was
unsatisfactory and was laced with contradictions if consideration
is
given to evidence of the defence witness, her minor son.
17.
This family has been divided into two factions, namely, the mother
and son against the father and daughter. The Trial Court
did not take
cognisance of why both children have different versions despite being
told "a
version"
by their mother. Surely one
version is not true.
18.
We note certain of the contradictions which were dealt with on appeal
namely:
18.1. Did the Complainant
sustain a
"blue eye"
as her son testified? Her
testimony makes no reference to such an injury;
18.2. Why did the
Complainant and her son testify that she went to the clinic that same
morning of 25 June 2011, when in fact it
was only established during
the trial proceedings that she went to the clinic on 27 June 2011?
18.3. Why is there no
documentary proof reflecting the nature of the injuries?
18.4. Was she assaulted
in the early hours of the morning or at night as the defence witness
testified?
18.5. Why does the son
testify that their mother lifted her T-shirt to show them the marks
on her body whilst the Complainant does
not testify to this fact;
18.6. According to her
version the alleged action of the accused in assaulting her would
have created some noise. Why did the children
not hear it when their
room was adjacent to their parents' room?
19.
The accused's version, on the other hand, was not contradicted in any
way. His daughter mainly testified in respect of the Complainant's
irrational and negative behaviour. She denies that the assault took
place. However this Court takes cognisance of the fact
that she
was not an eye witness to the alleged assault.
20.
We find that these blatant contradictions in the Complainant's
evidence should have alerted the Trial Court to exercise its
discretion with caution.
We
note her findings:
"Of what
transpired in the bedroom between the accused and the complainant we
have evidence of a single witness on both sides.
I have taken the
liberty with necessary caution. After having approached the evidence
of the complainant with the necessary caution
that she is a single
witness, I have found that she is a credible witness".
21.
The evidence of the single witness, in my view, is not clear and
satisfactory in every material respect. The State's case is
contradictory to a point where it can hardly be said that the guilt
of the appellant has been proved beyond reasonable doubt. The
State
failed to discharge its onus.
22.
This Court finds that the accused is entitled to be acquitted as
his evidence presents a version which evinces that he
might be
innocent. The Complainant's evidence should have left doubt in the
trial Court's mind.
23.
In
R v Dhlumayo and Another
[1948] 2 ALL SA 566
(A)
1948 (2) SA
677
(AD) at 678 paragraph 8 Greenberg, JA
said:
"8. Where there
has been no misdirection on fact by the trial Judge,
the
presumption is that his conclusion is correct; the appellant court
will only reverse it where it is convinced that it is wrong".
24.
Evidence at the disposal of the court demonstrates that the Court a
quo's
conclusion on fact is clearly wrong and should be
reversed.
25.
The following order, in the result, is made:
25.1.
The appeal
against conviction is upheld.
25.2.
The conviction
and sentence are set aside and replaced by the following order:
"the accused is
found not guilty and discharged".
______________________
H
KOOVERTJIE AJ
Acting
Judge of the High Court
I
concur and it is so ordered
______________________
M
W MSIMEKI J
Judge
of the High Court
I
agree
[1]
Tofie v The State (104114) [2014) ZASCA 159
[2]
S v Sauls and Others
1981 (3) SA 172
(W)