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[2016] ZAGPPHC 540
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Gouws v S (A197/15) [2016] ZAGPPHC 540 (24 June 2016)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NUMBER: A197/15
DATE: 24 JUNE 2016
In the matter between:
JACQUES JOSEPH GOUWS
And
THE STATE
JUDGMENT
TLHAPI J
INTRODUCTION
[1]
The appellant appeals his convictions and sentences. He
appeared before the Regional Court at Oberholzer, together with two
co-
accused on seven charges. The appellant was convicted on four of
the seven charges and his co-accused were acquitted of all the
charges. He was sentenced to three years imprisonment in respect of
each of the following charges : Attempted Murder; two counts
of
Assault with Intent to do Grievous Bodily Harm and Kidnapping. It was
ordered that the sentences run concurrently and he was
declared unfit
to possess a firearm. The appellant was acquitted of Crimen Iniuria;
Discharge of a Firearm in a built up area or
public place and
Reckless endangerment to person or
BACKGROUND
1
June 2012
[2]
Mr Puseletso Sibeko (‘complainant’), Mr
Silas Sibeko (‘Silas’) and Mr Thabo Selebalo (‘Thabo’)
were employed by the appellant as farm hands and also as assistants
in his sand-blasting business. On this day as was the usual
practice,
the appellant transported them to town to purchase groceries. On
their return the three employees left to pay a visit
to one of the
neighbouring farms. Silas testified that he decided to return to his
residence and he left his two companions behind.
The appellant came
to him during the night to complain about the noise he was making
with his radio. The appellant was in possession
of a firearm. After
he lowered the volume the appellant left and he went to sleep. The
complainant testified that he had intoxicating
liquor during the
visit to town but he did not drink thereafter because he was going to
work the following day.
[3]
The complainant testified that on his return and while
in the company of Thabo they met the appellant at the entrance gate.
The
appellant accused them of making noise and when he responded to
such accusation the appellant assaulted him on the mouth with the
butt of his rifle and fired a shot in the air. In cross examination
he testified that he managed to ward off two blows and that
it was
the third blow that struck him on the mouth. He sustained an injury,
he bled and his lips were swollen. The assault and
injury were
witnessed by Thabo. The appellant denied being in possession of a
rifle or that he assaulted the complainant but admitted
that he had
approached the employees to complain of the noise.
2
June 2012
[4]
The complainant did not report for duty in the morning
due to the injury to his lips. Silas testified that he saw the injury
for
the first time in the morning. The appellant came to the
residence of the complainant to investigate the reason for his
absence
from work. The complainant testified that the appellant got
angry with him and it seemed as if the appellant was going to assault
him and he fied the premises to one of the farms nearby. He returned
around mid-day and noticed that the appellant had a visitor,
Mr
Meyer, the third accused in the matter. Mr Meyer had brought his gate
to be sand-blasted and he joined the appellant at the
store which was
not far from the employee’s residence and, they started to
braai some meat. The complainant, Silas and Thabo
testified that the
appellant and Mr Meyer were later joined by Ms Janse van Vuuren, the
third accused in the matter. She was employed
by the appellant and
she lived at his residence. Although she stated that she was not in a
relationship with the appellant, she
was referred to in the
proceedings as his wife.
[5]
The complainant testified that he played his music at
high volume. The appellant complained about the noise and sent
someone to
inform him. The complainant refused to reduce the volume.
He testified that the appellant had often discouraged them from
visiting
the surrounding farms when they were off duty and preferred
that they enjoy themselves on the premises. It would seem that this
person who was sent was Richard although Silas and Thabo denied
knowing him. Silas was not certain and testified that maybe if
they
brought this person for him to see he might know him.
[6]
The complainant testified that he joined the other
employees after they returned from work. While Silas and Thabo were
busy having
a hair- cut, the appellant stealthily came from behind.
He was chased around the farm and the store by the appellant and Mr
Meyer.
Ms Janse van Vurren was instructed to fetch the rifle from the
house. At the time the appellant
was
in possession of a taser (choke). Shots were fired in his direction
and one hit him on the right arm. He fell to the ground
and was
screaming. The appellant electrocuted him with the taser, gagged him
and, his hands and feet were bound. The appellant
dragged him into a
ditch and left him there. Mr Meyer was present and assisted the
appellant. Silas and Thabo testified that they
saw the complainant
for the last time when he was chased by the appellant and them
disappearing behind the store. They did not
see what happened because
their view was obstructed. They thought that he had fled to the
neighbouring farms.
[7]
The appellant testified that during the night the
appellant and Ms Janse van Vuuren removed him from the ditch. He was
taken to
the store where his right hand was cuffed to an iron pole,
his left hand was tied to his back, his feet were bound and
additional
material was used to fortify the gag around his mouth. He
sat on the floor with nothing underneath, it was cold and he could
not
sleep in that position.
The appellant, Mr Meyer and Ms Janse van Vuuren
denied the version of the complainant. Ms Janse van Vuuren testified
that she was
told to book the complainant off duty because he was
drunk. She went to town and on her return she saw Mr Meyer with the
appellant.
She retired to the house. She denied seeing a taser or
that she had brought the rifle to the appellant. According to the
appellant,
Mr Meyer and Richard, the complainant was drunk and making
noise. The appellant sent Richard to tell the complainant that he was
making noise. The complainant got involved in a fight with Richard
and struck him with a stone on his abdomen. The complainant
admitted
to such assault on Richard and explained that Richard was holding him
tight for the appellant, he broke loose and fled.
This happened
before the shooting incident.
3
July 2012
[8]
The complainant testified that the appellant arrived in
the morning accompanied by
Ms
Janse van Vuuren. The handcuffs were released and left hanging on the
iron pole. The blood had dried up, his injuries were cleaned
and he
was un-cuffed.
[9]
The appellant testified that during the early hours he
heard the dogs barking next to the sheep kraal. He peeped through the
window
and when he did not see anything, he then took his rifle and
fired a shot from the window. In the morning he left to meet his
employees
to begin their daily duties and to open the kraal to let
the goats and sheep out. He enquired about the whereabouts of the
complainant.
They told him that he had not returned to the farm.
Richard was not feeling well and he did not report for duty.
[10]
The appellant testified that he returned to the house
to fetch the keys. When he opened the store he saw the complainant
sitting
upright on the floor. The complainant was still drunk and he
enquired from the complainant what he was doing there, he ordered him
to stand up and the complainant was unable to do so. He summoned
Silas and Thabo to assist the complainant. Silas and Thabo testified
that they found the complainant on the floor in the store. They
noticed blood next to where he was and a set of handcuffs hanging
from a pole. It was evident to them that the complainant had been
handcuffed and he confirmed such fact to them. They used a wheel
burrow to take him to his room because he could not walk on his own.
Ms Janse van Vuuren testified that she saw them taking the
complainant away. The appellant testified that he noticed that the
complainant had sustained a fracture to his hand. He provided
things
to clean the injury and to bandage the complainant.
THE
LAW
[11]
It is trite that the powers of a court of appeal to
interfere with the factual and credibility findings of a trial court
are limited.
The salutary principles are stated in Dlumayo and
Another
1948 (2) SA 677
(A) at 705 and 706 and S v Hadebe and Others
1997 (2) SACR 641
AT 645 e-f. A court of appeal may only interfere
where there was a misdirection on the part of the trial court
otherwise, the findings
of fact of a trial court are presumed to be
correct. In my view, where there is a lack of adequate articulation
by a presiding
officer in the judgement of the facts or reasons it
does not mean that the conclusion reached is incorrect.
It
is therefore important to look first at the judgment and the
evaluation the facts as a whole by the trial court, in order to
establish that the state had discharged its onus of proving beyond a
reasonable doubt the guilt of the appellant. Going hand in
hand with
this trite principle is another which states that the accused would
be entitled to an acquittal if his version was reasonably
possibly
true, S v Van der Meyden
1999 (1) SACR 447
(W) at 448 F-G.
In S v Mlambo
1957
(4) SA 727
at 738A-B Malan JA stated that it was not expected of the
State
‘to close every avenue of escape which may be said
to be open to an accused”
what
was required to secure a conviction was to
{produce evidence
by means of which a high degree of probability is raised that the
ordinary reasonable man
,
after
mature consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the crime
charged.
.............
An
accused’ claim to the benefit of a doubt when it may be said to
exist must not be derived from speculation, but must rest
upon a
reasonable and solid foundation created either by positive evidence
or gathered from reasonable inferences which are not
in conflict
with, or outweighed by the proved facts of the case”
[12]
It was contended in the grounds of appeal that the
appellant’s evidence was reliable and that the State witnesses
had failed
to controvert. It was further submitted in the heads of
argument that because the learned Magistrate referred to motive in
the
judgment, there was no finding made that there was intention on
the part of the appellant to commit the offences.
[13]
I do not agree with these submissions because the
learned Magistrate having
“
daar
is stawencle getuienis van die Staats
getuie
..............................................
dat die klaer se iip seer
was”
(page 270 of the record)
I
do not find fault in such finding. In my view such
evidence is to be found in examining the evidence of the witnesses as
a whole.
Besides the evidence of the complainant, Thabo witnessed the
assault on 1 June 2012. The appellant admitted that he had gone to
Silas’s room and that he had met the other employees that night
and complained of the noise but he denied being in possession
of a
rifle. Silas who had not been present during the alleged assault
testified that he noticed the injury on the complainant’s
lips
the following morning. It was argued that the medical report does not
mention the injury to the lips. While this is true,
the assault
occurred on a Friday and the complainant was only seen by a doctor
two days later and in between the complainant had
been gagged while
he was held captive in the ditch and later in the store. It is my
view that the contradictions are not such that
they discredit the
complainant regarding the assault on 1 June 2012.
[14]
The complainant was a single witness in as far as the
injuries he sustained
were
concerned. He alleged that he was electrocuted with a taser; suffered
an injury caused by a gun- shot; dragged into a ditch,
gagged and his
hands and feet bound, and finally locked up in the store and
handcuffed to an iron pole, it is trite that such evidence
is to be
treated with caution especially in light of the version of the
appellant and his co-accused.
The
court had to be satisfied that the State had proved beyond a
reasonable doubt that that the injuries sustained by the complainant
were caused by the appellant.
“
Die hofmoet ook let of die waarskynlikhede,
die eertse beskuldigde het we/ ‘n
motiefgehad om klaer aan te vaaf, die ktaer was
parmantig gewees”.
.....................................
.......
“die
hof vind dit ook onwaarskynlik dat beskuldigde 1 nie die beserings
sou
sien toe hy gelaai word op die kruiwa. Die hofmoet ook kyk dat die
Staats getuie moes op een of ander manier uitgevind het dat
die
eerste beskuldgde
l
n geweer gehad het
;
en kon skiet”
(page 271
of the record)
In my view the use of the word ‘motive’
was a by the way comment on the apparent insolent utterances of the
complainant
and I see nothing wrong in the magistrate expressing a
view that such conduct may have prompted the commission of the
offences.
The appellant's intention to commit the offences is to be
deduced from his conduct and not from what the magistrate thought was
the reason for the assault. There was evidence that:
1
the appellant was seen in possession of a rifle on 1
and 2 June 2012;
2
that on 1 June 2012 he fired a shot into the air in the
presence of the complainant and Thabo;
3
Silas heard the appellant instructing Ms Janse van
Vuuren to fetch the rifle from the house and he was seen in hot
pursuit of the
complainant with the rifle in his possession; Silas
testified that although he heard shots being fired as the complainant
fled
when he and Thabo were having a hair- cut, he did not believe
that the appellant would shoot the complainant. That was the reason
why he never went to look for the complainant after they disappeared
behind the store;
4
Richard the appellant’s witness does corroborated
the evidence of the complainant that they were involved in a fight
and that
complainant hit him with a stone. Although the appellant and
his co-accused deny that any shots were fired on 2 June 2012. On the
other hand Richard appellant’s witness contradicted himself. In
his evidence in chief he testified that on the Sunday morning,
Silas
and Thabo informed him that “this guy" (complainant) had
been injured. He enquired from them what had happened
and complainant
informed him that he did not know what happened to him at Gugulethu’s
Farm because he was drunk. During cross
examination at page 239 from
lines 17 onwards when responding to a question whether or not the
appellant owned a firearm he responded:
“
He
does have a firearm your worship
,
but I will not be able to say what he has in his house
,
but it is the one that he shot with
..................
Shot at what or shot
what
-
It is the one that hit him
on the hand Hit him on the hand
-
Pikanien”
(the
complainant)
There
is in my view no merit in the argument of a conspiracy to concoct
evidence against the appellant. The complainant testified
that he
sustained injuries to his mouth, a mark to his buttock even though
these were not reflected in the medical report. Then
there was the
injury to his hand. There was medical evidence that proved that the
fracture to the wrist was caused by a gunshot,
that there were two
lacerations which in the finding of the medical doctor were the
entrance and exit wounds of the bullet. The
appellant disputed these
finding because he believed that the bullet should have lodged in the
hand. Contrary to the finding in
the judgement that the evidence of
the laceration is not mentioned in the J88 form, I find that in his
conclusion in the form the
doctor does mention that there were
lacerations caused by a gunshot. At page 372 of the record he further
substantiates his conclusions.
The diagram does show the lacerations
representing the entrance and exit wounds measuring 1 cm on the right
side of the right hand
wrist and 4 cm on the left side of the right
hand wrist as testified in his evidence.
5
It was argued that the J88 was not completed by Dr
Mentjies who testified at the trial. This issue was not taken up with
him during
cross-examination however there is evidence that the
complainant was first admitted to the Carletonville Hospital on 4
June 2012,
where he was seen by Dr Mentjies. The complainant
testified that he was transferred to the Leratong Hospital where he
stayed for
about three weeks. In the exhibits handed in to the court
the discharge form stated that he was admitted there on 6 June 2012
and
discharged 18 June 2012. In both the J88 and discharge form the
clinical findings were that of a gun-shot injury.
[15]
It is my view that the evidence of all the police
officers relate to their investigation after the incident had
occurred and that
their evidence could be relevant as to what their
observations were. However, their evidence does not take the matter
any further.
I am satisfied that the above establishes proof
beyond a reasonable doubt as was determined by the court a quo and I
find the convictions
on all three counts to be in order.
[16]
In as far as sentence was concerned I do not agree with
the submission for the appellant that all the offences were not of a
serious
nature. It was argued for the respondent that aggravating
factors were present which by far outweigh the mitigatory factors
presented
on behalf of the appellant. Sometimes the personal
circumstances of an accused could have minimal importance in the face
of a serious
crime. The assault by employers on employees should be
viewed in serious light and should be discouraged and condemned in
the strongest
of terms. This is demanded by our communities. Our law
provides for procedures of discipline and punishment in the work
environment
which are available to employers and should be utilized
by them at all times. Having said this, if one has regard to the
personal
circumstances of the appellant and to the factors which are
trite and which should be taken into account by the court when
considering
sentence, I am of the view that the sentences of three
(3) years imprisonment for counts 2 and 3 were harsh and excessive
and that
they should be interfered with. The attempted murder and
kidnapping charges were serious and they should be considered against
the aggravating factors of how the complainant was handled after
being assaulted by the appellant, especially after having sustained
a
gunshot wound and the fact that he spent several days in hospital and
that he had to be operated upon. I suggest that the sentences
given
in respect of counts 1 and 4 be confirmed.
[17]
In the circumstances the following order is given:
1.
The appeal against conviction of the appellant is
dismissed.
2.
The appeal against sentence imposed on the appellant in
respect of counts: 1 and 4 is dismissed and sentence of three (3)
years
in respect of each one of these counts is confirmed
3.
The appeal against sentence imposed on the appellant in
respect of counts: 2 and 3 is upheld and the sentences are set aside
and
substituted with the following:
Count 2
;
6 months imprisonment;
Count 3 : 6 months imprisonment;
4.
it is ordered that the sentences imposed in respect of
counts: 2, 3 and 4 run concurrently with the sentence imposed in
respect
of count 1;
5.
The sentences are antedated to 12 February 2015.
TLHAPI W
(JUDGE OF THE HIGH
COURT)
I agree,
VUKEYA L
(ACTING JUDGE OF THE
HIGH COURT)
MATTER HEARD ON 25
FEBRUARY 2016
JUDGMENT RESERVED 25
FEBRUARY 2016
ATTORNEYS FOR THE
APPELLANT MATT LARKINS ATT.
ATTORNEYS FOR THE
RESPONDENT THE DIRECTOR OF PUBLIC
PROSECUTIONS
assault
by employers on employees should be viewed in serious light and
should be discouraged and condemned in the strongest of
terms. This
is demanded by our communities. Our law provides for procedures of
discipline and punishment in the work environment
which are available
to employers and should be utilized by them at all times. Having said
this, if one has regard to the personal
circumstances of the
appellant and to the factors which are trite and which should be
taken into account by the court when considering
sentence, I am of
the view that the sentences of three (3) years imprisonment for
counts 2 and 3 were harsh and excessive and that
they should be
Interfered with. The attempted murder and kidnapping charges were
serious and they should be considered against
the aggravating factors
of how the complainant was handled after being assaulted by the
appellant, especially after having sustained
a gunshot wound and the
fact that he spent several days in hospital and that he had to be
operated upon, I suggest that the sentences
given in respect of
counts 1 and 4 be confirmed.
[17]
In the circumstances the following order Is given:
1.
The appeal against conviction of the appellant is
dismissed.
2.
The appeal against sentence Imposed on the appellant in
respect of counts; 1 and 4 Is dismissed and sentence of three (3)
years
in respect of each one of these counts Is confirmed
3.
The appeal against sentence imposed on the appellant in
respect of counts: 2 and 3 is upheld and the sentences are set aside
and
substituted with the following:
Count
: 6 months imprisonment;
Count
6 months imprisonment;
4.
It Is ordered that the sentences imposed in respect of
counts: 2,3 and 4
run concurrently
sentence
imposed in respect
of count 1.
5. The sentences
are antedated to 12 February 2015.
TLHAPIW
(JUDGE OF THE HIGH COURT)
I agree,
VUKEYA I
(ACTING JUDGE OF THE
HIGH COURT)
MATTER HEARD ON 25
FEBRUARY 2018
JUDGMENT RESERVED 28
FEBRUARY 2016
ATTORNEYS FOR THE
APPELLANT MATT LARKINS ATT.
ATTORNEYS FOR THE
RESPONDENT THE DIRECTOR OF PUBLIC
PROSECUTIONS