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[2016] ZAGPPHC 667
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Olifant v S (A608/2015) [2016] ZAGPPHC 667 (29 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, GAUTENG
DATE: 29 JULY 2016
CASE
NO:
A608/2015
In
the matter between:
S
A
OLIFANT
Appellant
And
THE
STATE
Respondent
JUDGEMENT
M
BONG
WE, AJ:
[1] The
appellant stood trial in the Magistrate Court, Klerksdorp, on the 2
June 2014 charged with the contravention of a domestic
violence
protection order that was granted against him on the 6th April 2005
in terms of section 5(2) read with sections 1,6
and 21 of the
Domestic Violence Act 116 of 1998
. This order prohibited the
appellant from threatening or assaulting the complainant who was
then his wife.
[2]
According to the charge sheet, the appellant had on the 13 July 2013
contravened the said prohibition order in that he insulted
and
threatened the complainant. The appellant was represented throughout
the proceedings. He pleaded not guilty to the charge
without giving
any plea explanation. He was in the end found "guilty as
charged" and sentenced to payment of a fine
of R2000-00 or
eight months imprisonment. The sentence was wholly suspended for
five years on specified conditions. This appeal
is against the
conviction and is with the leave of the trial court.
THE
GRAVAMEN
OF
THE
APPEAL
[3]
The appellant's appeal is not directed at the evidence relating to
his commission of the offence with which he was convicted,
but the
validity of the protection order on which the charge sheet was
formulated as well as the specific conduct the order sought
to
prohibit. The argument raised on behalf of the appellant in
challenging the conviction is consequently two-fold, namely, that
the relevant protection order issued in terms of
Section 5(2)
of the
Domestic Violence Act 116 of 1998
in April 2006 was an interim
measure and could not have remained in force seven years and three
months later, that is as at the
13 July 2013 when the transgression
is said to have occurred. The appellant relied on the judgment in S
v ZONDANI
2005 (2) SACR 304
(CK) in support of its argument. The
Court in that case had stated thus:
"[6]
An interim protection order made in terms of
s 5
of the
Domestic
Violence Act is
exactly what it is called. It is a protective order
of a provisional nature which is subject to confirmation or being
discharged
on the return date. It is quite different in that
respect to an order (final) made in terms of
s 6
of that Act. With
respect to a final order
s 6(7)
provides:
"Subject
to the provisions of
s 7(7)
, a protection order issued in terms of
this section remains in force until it is set aside, and the
execution of such order
shall not be automatically suspended upon
the noting of an appeal.
[7]
By virtue of the interim protection order being in the nature of
interim relief, the respondent may, as provided for in
s 5(9)
,
anticipate the return date for the purpose of having the order
discharged or made final.
[8] On the basis of the
aforegoing and the allegation made in the charge sheet that the
order allegedly breached was in force,
it follows that the State
bore the onus not only to prove the acts allegedly performed by the
accused in breach of such order
but also that the order was at that
time in force."
[4]
It is apparent from this decision that both the prosecution's
argument and the trial court's finding that the interim order
of the
6th April 2006 was still valid and in force on the date of the
transgression, was misplaced and erroneous. On face value,
this
would normally result in one agreeing with the appellant's
contention on the validity and enforceability or lack thereof
of the
protection order of the 6 April 2006. However, the appellant's
argument clearly and conveniently overlooks pertinent realities
and
developments that occurred at the trial such as the evidence of the
clerk of the court which was corroborated by the complainant
with
regard to a final order, a copy whereof was produced and handed in
as an exhibit by agreement between both the State and
the defence.
It is particularly that evidence which impacts on and rebuffs the
appellant's otherwise sound argument. I now consider
the evidence
relevant on this aspect.
EVIDENCE
OF THE STATE
[5]
At the instance of the trial court and consequent to uncertainty as
to the existence of a final order, the Clerk of the Court
was called
as a witness on this specific aspect. In her evidence she testified
that both the complainant and the appellant were
present in court
when the interim order was confirmed and that the original order was
handed to the appellant as required by
s 6(7)
of the Act and a copy
to the complainant. The complainant confirmed this albeit her
evidence was the copies of the final order
were given to her and the
appellant. The clerk went on to produce a document that she referred
to as a copy of the final order
confirming the interim order. This
document was, by agreement between the prosecutor and the defence,
handed in as Exhibit B.
EXHIBIT
B
[6]
For the relevance of Exhibit B to the issues raised, Ideem it
necessary to describe it, as far as I consider it necessary.
This is
a document appearing on paginated page 164 of the record of the
proceedings in the court a quo. It is titled 'APPLICATION:
DOMESTIC
VIOLENCE ACT, ACT
116 OF 1998.' On top on this title is a
handwritten insertion that Reads: EXHIBIT B with a signature and
date appearing thereunder.
It appears to be a Standard form with
blocks in which to tick the relevant occurrence amongst those
Tabulated next to each block;
below the title appears: REFERENCE NO.
1/4/15:316/06; Next is the date 2007-04-26 followed by the name of
the presiding officer,
the interpreter and an indication that the
Applicant and the Respondent (complainant and the Accused at the
trial,respectively,
appeared in person;
[7] Under
the sub heading 'BEFORE COURT' ,the blocks on the side of which the
following occurrences are recorded have been ticked;
*Confirmation
of interim protection order;
*Both
parties advised as to right to attorney;
*The
next two boxes relate to both parties choosing to proceed without
legal representation;
*The
application was considered in chambers after considering only the
affidavits on record;
*Interim
Protection Order confirmed. A handwritten note relating to this block
reads: 'iro point 3.1.2.1 deleted." A further
handwritten note
appears and reads: 'Parties agree point 3.1.2.3 to be deleted.'
It is worth mentioning
that on perusing point 3.1.2.3 of the interim order appearing on
paginated page 166 of the record, it is
apparent that the said point
relates to the prohibition of the Appellant from entering the
complainant's residence which the parties
once shared. Exhibit B is
signed at the bottom by the Additional Magistrate and bears the
official stamp of the KlerksdorpMagistrate
Court with the date
2007-04-26.
[8]
In my view, Exhibit B, which was handed in by agreement as
aforestated, constituted the final order and Ifind that the
appellant
was very much aware of its existence and so was the
defence counsel at the trial. This view is founded on two pillars,
firstly,
the unchallenged evidence of both the clerk of the court
which was corroborated by that of the complainant and, secondly, the
evidence of the appellant himself where he testified that he had
been to the complainant's residence as recently as on the Sunday
preceding his transgression to fetch the child and returned it later
the same afternoon. This, in my view, he did with the knowledge
that
he was and is still no longer prohibited from entering the
complainant's home. I find, consequently, that the argument in
denial of the existence of the final protection order is
disingenuous and stands to be rejected.
CONVICTION
[9]
The trial magistrate erred when, having accepted Exhibit B, he
failed to order that it substitutes the interim order, This
despite
the prosecutor's subsequent request for an amendment of the
charge-sheet in terms of s 88 of Act 51 of 1977. This led
to the
learned magistrate further erring in finding the appellant guilty as
charged considering that both the interim and final
orders
prohibited only 'threatening or assaulting' and make no reference to
a prohibition of 'insulting.' In my view and on the
strength of the
evidence before him, which I find to have proved the guilt of the
accused beyond reasonable doubt on the charge
of threatening the
complainant, the trial magistrate ought at the least to have found
the appellant guilty of threatening the
complainant in contravention
of the final order dated 2007-04-26
INSULTING
[10]
Although the charge-sheet also contained a charge of insulting which
was put to the appellant and he pleaded thereto, the
trial
magistrate correctly pointed out that the protection order did not
mention insult of the complainant as conduct the appellant
was
restrained from committing and pointing out that a charge of
crimes injuria should have been included. Consequently,
the trial
court erred in finding the appellant guilty as charged. While I have
already expressed the view that the evidence that
was led by the
State also proved the insult of the complainant by the appellant,
relevant averments in a charge of crimes injuria
were not made in the
charge sheet. In this regard the applicable legal principle was
aptly stated thus in the SCA judgment in
JAMES AZWINDINI NEDZAMBA v
S (911/2012)[2013] ZASCA 69 (27 May 2013) : "[20] It is
generally accepted that charge sheets
or indictments may be amended
on appeal or review. Once again the test is whether the accused
could not possibly be prejudiced
thereby. When application is made
to amend a charge sheet on appeal, the Court must be satisfied that
the defence would have
remained the same if the charge had
originally contained the necessary averments." In the present
case, neither the charge
of crimen injuria nor the necessary
averments relating to it were made in the charge sheet. I
consequently find that despite
the error in his pronouncement of
guilty as charged, the trial court's comment referred to above was
correct and that it does
not appear, in light of that comment, that
the sentence imposed factored in the appellant's insult of the
complainant.
[12]
For the sake of completion and although not specifically challenged
by the appellant and to give meaning to my stated findings
that the
State was successful in proving the guilt of the appellant beyond
reasonable doubt, I now give a summary of the State
witnesses'
evidence that resulted in the conviction of the appellant.
[13]
The State had called two witnesses. First was the complainant who
testified that she was insulted by being called a whore
and
threatened with death by the appellant while at work on the morning
of 13 July 2013. This after the appellant had come to
confront her
for what he perceived to be the complainant's denial of the
appellant's right to visitation by the their minor daughter
as
priorly agreed. The appellant refused to accept the complainant's
explanation which he had received via sms earlier that morning
in
which the complainant cancelled the prior arrangement due to the
child not being well and having to be taken to a doctor.
[14]
The complainant testified that the appellant had been aggressive and
very loud when he approached, accused and insulted her.
She
testified that, knowing what the appellant was capable of, she had
become terrified by his threat and had proceeded to report
it the
police after the appellant had left.
[15]
As a result of the appellant's loudness, the argument was overheard
by the complaint's supervisor, Ms Wessels, the second
State witness,
from her office which was next to the complainant's. Ms Wessels
testified that she then walked out and proceeded
to the
complainant's office to investigate. She was present and heard the
appellant insulting and threatening the complainant
as well as the
actual words the appellant had uttered which she repeated as were
stated by the complainant in her evidence, namely,
that the
complainant was a whore and that the appellant had been in the
military and to him killing a person was like pressing
a switch on
the wall. She further confirmed that the complainant was visibly
terrified. Wessel's attempts at persuading the appellant
to leave
fell on deaf ears resulting in her leaving the office to call
security. On her return the appellant had already left.
She
(Wessels) had known the couple and had had no problems with either
of them.
CROSS
EXAMINATION AND
ASSESSMENT
[16]
Despite the gruelling cross examination that followed, nothing
adverse was extracted from the cogent evidence of either of
the
State witnesses nor was any aspect of their evidence challenged on
appeal. These witnesses were impressive and gave evidence
in calm
manner that displayed the absence of bias against the accused.
EVIDENCE
OF THE ACCUSED
[17]]
The appellant denied he that had been loud and that he insulted and
threatened the complainant. This despite his own testimony
that he
had been aggressive when he demanded to know why the complainant was
refusing him visitation by the child and insisting
that he takes the
child to a traditional doctor for protection before taking her to
his house for fear that the appellant's wife
could bewitch the child.
He had responded to this by calling the complainant herself a witch.
CROSS
EXAMINATION
[18]
In cross examination, the appellant initially denied that he had
been angry when he confronted and argued with the complainant,
but
subsequently contradicted himself several times about his emotional
state at the time stating firstly that he had been cool
and,
subsequently conceded that he had been angry and, lastly, that he had
been at another level. On the insulting words and threat
he
allegedly uttered, he responded thus: "those are their words,
not Mine." He admitted knowledge of the existence
of the
protection order against him, but on being led directly in regard to
his knowledge, he qualified his response by stating
that the order
he was aware of had been an interim one that was never confirmed. He
did not deny his presence in court when either
of the orders were
made.
ASSESSMENT
OF ACCUSED'S EVIDENCE
[19] In my view, the
appellant was a poor witness whose evidence could not be relied on
could it be regarded as reasonably possibly
true. As such, his
testimony was correctly rejected by the trial court.
CONCLUSION
[20]
In light of the aforegoing, I propose that the following orders be
made:
[1]
The appeal is dismissed.
[2]
The order of the trial magistrate is replaced with the following
order;
(a)
It is ordered that the interim order dated 5 May 2006 on which the
charge sheet was formulated is replaced by amended final
order
dated 26 April 2007;
(b)
That the charge sheet be amended to read: "COUNT 1: That the
accused is guilty of wrongfully and unlawfully contravening
the
protection order granted to the complainant in terms of
section 6 read with
sections 1
,
6
and
21
of the
Domestic Violence
Act 116 of 1998
on the 26 April 2007 and in terms of which the
accused was prohibited from and ordered not to threaten or
assault the complainant
and that the said order was handed to the
accused and was and still remains in force.
(c) That the charge of insulting referred in the charge sheet is
deleted.
(d) That the accused is found guilty of contravening the protection
order of the 26 April 2007.
(e)
That the sentence imposed on the accused by the trial magistrate
be confirmed.
M. MB ONGWE, AJ
ACTING
JUDGE OF THE HIGH COURT,
PRETORIA
I
agree and it is so ordered.
NV.
KHUMALO, J
JUDGE
OF THE HIGH COURT, PRETORIA
Date
of hearing : 5 May 2016
Date
of judgment : 29 July 2016 REPRESENTATIVES
For
the Appellant : Adv L. Augustyn
Instructed
by : Legal Aid South Africa
For
the Respondent : Adv GJC Maritz
Instructed
by : The OPP, Pretoria