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[2016] ZAGPPHC 937
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Ledwaba v S (A863/2015) [2016] ZAGPPHC 937 (9 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: A863/2015
Date:
9/11/16
In
the matter between:
DAWID
JOSEPH
LEDWABA
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
PRETORIUS
J ,
(1)
The appellant was convicted in the Regional Court, Gauteng in
Pretoria on 20 August 2015 on a charge of assault with the intent
to
cause grievous bodily harm and sentenced on 14 September 2015 to 36
months' imprisonment.
(2)
The appellant, who was accused 2 in the court
a quo,
was
charged with two counts namely:
"2.
1.1 Housebreaking with the intent to assault and assault of one
Nomvula Christina Mabuza; and
2.
1.2 Assault with the intent to do grievous bodily harm to one Nomvula
Christina Mabuza."
(3)
The appellant pleaded not guilty to the charges and elected to remain
silent. The appellant was legally represented throughout
the trial in
the court
a quo.
The appellant was acquitted on the first
charge.
(4)
The appeal today is against both conviction and sentence. The
appellant was granted bail pending the outcome of the appeal.
(5)
The first witness was Ms Nomvula Mabuza, the complainant in both
charges. Her evidence was that on 2 November 2012 she was at
her
residence. She noticed five people running into her premises and
attempted to lock the doors to keep them out. Her evidence
was that
these individuals assaulted her by choking her and hitting her with a
hammer on the head. Unfortunately the complainant
passed away before
her cross-examination was completed.
(6)
Her daughter, Ms Gontse Mabuza testified that she and the complainant
were at home. According to her she was assaulted by accused
1 with a
sjambok and the appellant allegedly hit her with a hammer on the
head. When she and the complainant went to the police
station, after
the incident, they found the appellant already at the police station.
(7)
Ms Dudu Mabuza, the complainant's other daughter testified that she
was present when the attack took place. She testified that
she saw
the appellant at her mother's house and he was in possession of a
hammer. She could not indicate how and where her mother
had been
assaulted and by whom. She did not point the appellant out as the
person who had assaulted the complainant.
(8)
The appellant's evidence was that he had arrived home on 2 November
2012 and found Ms Mabuza and her daughter, Gontse, at the
gate to his
maternal home. They were insulting his mother, who was sweeping the
yard. According to the appellant Ms Nomvula Mabuza
ran to her house
and fetched an iron rod and a sjambok. He disarmed Ms Nomvula Mabuza
by taking the iron rod from her, after which
he disarmed her daughter
by taking away the sjambok. He decided to retreat and not to escalate
the incident and went to the police
station. He intended reporting
that he had been assaulted, but the police was unwilling to assist
him. His mother, Ms Aleta Ledwaba.
confirmed his evidence in all
material aspects. Both she and the appellant were subsequently
arrested, although she was later on
released.
(9)
Counsel for the State, in its heads of argument
[1]
stated:
"Regarding
the conviction, the submission
is
made that the evidence of
Nomvula Mabuza,
Gontse Mabuza and Dudu Mabuza
is
clear and satisfactory in all material respects. It
is
respectfully submitted that the magistrate did not misdirect
himself with his evaluation of the whole evidence."
(Court
emphasis)
(10)
Even if regard is had to the cross-examination of the complainant,
which had not been completed, it is clear that she had contradicted
herself in material aspects. Her evidence was:
"They
came there running, I
was
sitting in the kitchen facing front.
They came running. I went into the house."
And
then again:
"I
saw
that they were having
some
objects in their hands,
and then I ran into the house and locked the house."
And
again:
"I
was just sitting outside."
(11)
Her evidence of the assault was as follows:
"I
was hit by Joel with a hammer and then he also, Joel also choked
me".
And:
"Dawid
hit me with the hammer."
And:
"Now,
how many hammer did you see on the particular day? One.
One
hammer? Yes and
I took that hammer to the police station."
(12)
The right of an accused to challenge evidence is enshrined in section
35(3)(i) of the
Constitution
[2]
,
which
provide that
"Every
accused person has a right to a fair trial which includes the right .
. . (i) to adduce and challenge evidence".
(13)
In the
South
African Law of Evidence, Zeffert, Paizes and Skeen (Lexis Nexis,
Butterworths, Cape Town 2003),
it
was set out that the English Rule set out in
Browne
v Dunn
[3]
that
"a
party
who calls
a
witness
is entitled to assume that
a
witness'
testimony has been accepted
as
correct
if it has not been challenged"
has
been consistently accepted as correct in our courts.
(14)
In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[4]
the
court dealt with the cross-examination of a witness as follows:
"The
precise nature of the imputation should be made clear to the witness
so
that it can be met and destroyed, particularly where the
imputation relies upon inferences to be drawn from other evidence in
the
proceedings. It should be made clear not only that the evidence
is to be challenged but also how it is to be challenged.
This
is so because the witness must be given an opportunity to deny the
challenge, to call corroborative evidence, to qualify the
evidence
given by the witness or others and to explain contradictions on which
reliance is to be placed."
(Court emphasis)
(15)
The State's counsel conceded, after argument, that the evidence of Ms
Nomvula Mabuza, the complainant, should be disregarded,
as she passed
away before her cross-examination had been completed.
(16)
The State relies on the evidence of her two daughters, Mss Dudu
Mabuza and Gontse Mabuza to confirm the conviction of assault
on the
victim. The relevant passages the State relies on are the following
by Ms Gontse Mabuza:
"Yes
after Kgamotso and Oawid entered your house then asking for Gontas
and Nomvula?
---
They started assaulting
us.
How
did they assault you, what did they say? They said Gontse and Oawid
[?] and they started to assault you. [Indistinct] conversation
[indistinct].
---
They said they wanted Nomvula and Gontse,
they further pushed the bedroom door which opened and they started to
assault us.
Yes?
---
They assaulted us, when they were done they left."
[Record
page 37 lines 4 to 10]
And
by Ms Oudu Mabuza:
"How
did they assault them, do you still remember?
---
At the time
when I
was,
after I
was
man handled, then I jumped the
wall. Then I
was
able to
see
through the bedroom window
because my, I saw my mom running to the bedroom, then I could
see
when they were assaulted through the window and the doors were
damaged.
But
just to whether how they were assaulted, with what, you never
saw
or you saw?
---
At the time when they were man
handling
me outside, I saw the weapons."
[Record
page 64 lines 5 to 12]
That
is the only evidence on record regarding the assault. It is clear
these two witnesses did not explain at all how and by whom
their
mother, the complainant, was assaulted.
(17)
The State conceded that the J88 pertaining to the victim was never
proved in court, as the victim could not identify it due
to not being
able to see properly.
(18)
In S v
Van Der Meyden
[5]
Nugent
J held:
"Some
of the evidence might be found to be false,· some of it
might be found to be unreliable,· and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored."
This
was confirmed by the Supreme Court of Appeal in
S
v Van Aswegen
[6]
.
(19)
In
S v
Chabalala
[7]
Heher
AJA held:
"
. . . to weigh up all the elements which point towards the guilt of
the accused against all those which are indicative of
his
innocence,
taking proper account of inherent strengths and
weaknesses,
probabilities and improbabilities on both
sides
and, having
done
so,
to decide whether the balance weighs
so
heavily in favour of the
State as
to
exclude any reasonable doubt about the accused's guilt."
(Court
emphasis)
(20)
The State had not proved the case beyond a reasonable doubt that the
appellant had hit the complainant, Ms Nomvula Mabuza with
a hammer,
steel pipe and sjambok. There is no evidence by the State as to who,
why and how the victim was hit. There is no evidence
as to her
injuries as the J88 was provisionally accepted, but the medical
doctor was not called to give evidence and to finalize
the aspect of
the J88.
(21)
In these circumstances this court has to find that the State had not
proved its case beyond a reasonable doubt and the appellant
is
entitled to be acquitted.
(22)
The following order is made:
1.
The appeal is upheld;
2.
The conviction and sentence of the appellant is set aside.
_______________
Judge
C Pretorius
I
agree.
____________
Acting
Judge J Du Plessis
Case
number:
A863/2015
Matter
heard on:
31 October 2016
For
the Appellant:
Adv Gerber
Instructed
by:
BJ Kruger Attorneys
For
the Respondent:
Adv Macke
Instructed
by:
Director of Public Prosecutions
Date
of Judgment:
[1]
Paragraph
8 of Respondent's Heads of Argument
[2]
Act 108
of 1996
[3]
(1894) 6 The Reports 67
[4]
2000(1)
SA 1 CC at paragraph 63
[5]
1999(2) SA 79 (W) at p82
[6]
2001(1) SACR 97 (SCA)
[7]
2003(1) SACR 134 (SCA) at paragraph 15