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[2016] ZAGPPHC 969
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Msiya v S (A27/2016) [2016] ZAGPPHC 969 (29 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Appeal
Case No: A27/2016
29/11/2016
In
the matter between:
LUYANDA
PERFECT MSIYA
Appellant
And
THE
STATE
Respondent
JUDGMENT
HF JACOBS, AJ:
[1]
The appellant was charged with assault with the intent to do grievous
bodily harm allegedly committed on 23 March 2014 by hitting
one
Banele Beshula with an open hand, tripping him and kicking him with
booted feet and stabbing him with a knife. The appellant
had legal
representation when he, on 28 August 2014, pleaded not guilty to the
charge. He gave no explanation of plea. The prosecutor
called two
witnesses to wit Mr Banele Beshula, the complainant, and Mr Sipho
Beshula the complainant's brother. The appellant closed
his case
without giving evidence or calling any witnesses. The Magistrate
postponed the hearing for judgment to 1 September 2014
when the
prosecutor and defence attorney addressed him on the conviction. The
Magistrate postponed the case to 25 September 2014
for judgment. The
full judgment reads as follows:
"Judgment in
short is
as
follows. It is clear from the accused's actions
that he intended to harm the complainant and that his intention at
least took the
form of do/us eventualis. The evidence of the state
witnesses sufficiently corroborated each other to conclude that the
accused
did assault the complainant without justifiable
reason.
Although the
witnesses contradicted each other they did not do
so
in
material terms and the charge, in respect of the aspects of the
charge and therefore their evidence is accepted
as
truthful.
The finding of
the court is that the state proved the charge beyond reasonable doubt
and the accused is found guilty
as
charged."
[2]
Immediately thereafter the prosecutor and defence attorney addressed
the Court whereupon the Magistrate sentenced the appellant
as
follows:
"If I take
into account the nature of the offence and personal circumstances you
are
sentenced to
a
fine of R6 000.00 or three
month's imprisonment. Wholly suspended for
a
period of five
years on condition not again convicted of the same or similar
offence. No order is made in tenns of the Fireanns
Control
Act."
[3]
The appellant appeals against his conviction with the leave of
the trial Magistrate in terms of
section 309B
(3) (b) of the
Criminal
Procedure Act 51 of 1977
. The appellant's heads of argument were
delivered out of time and an application condoning the late filing
was brought on the appellant's
behalf. I am of the view that it is in
the interest of justice that the condonation should be granted. At
about 2:30 am on Sunday
23 March 2014 the complainant was at
Johannes' Place, a tavern near Daveyton. Patrons of the tavern were
gambling and drinking
inside. The complainant stood outside with
friends. The complainant's friends went inside the tavern but he
remained outside. The
reason being that the tavern's owners and the
complainant's relatives do not have a friendly relationship.
[4]
While standing outside the appellant, who the complainant knew since
childhood, stood up and said to the complainant: "Ja
Son"
whereupon the complainant said to the appellant not to refer to him
as a son. The complainant and the appellant exchanged
words. The
appellant struck the complainant on the left temple. The complainant
was unsure whether the appellant struck him with
a clenched fist or
another object. The complainant fell to the ground. Other persons
inside the tavern thereupon joined the fight
outside. The complainant
was inhibriated. He tried to get up but could not manage to do so. He
heard a gunshot. The man who fired
the gunshot took him home. When
the complainant arrived at his home (or actually that of his
mother's) he argued with his mother
who reprimanded him. According to
the complainant's brother, Sipho Beshula who also testified for the
prosecution, the complainant
was visibly drunk and angry and his
clothes were soiled. From their mother's house the complainant and
Sipho went to their aunt's
house. On route to their aunt's house the
appellant came to the complainant. The appellant produced a knife and
stabbed the complainant
twice, once on his nose and once on his
forehead. The complainant fell to the ground and later managed to run
away. Sipho was at
the time approximately 9 metres away from the
place where the appellant allegedly stabbed the complainant. Sipho,
however, did
not witness the stabbing but saw that the appellant and
the complainant were fighting.
[5]
On appeal it was contended on behalf of the appellant that the
Trial Court misdirected itself by finding that there was
corroboration
of the complainant's version in the evidence of his
brother Sipho, that the contradictions that appear from the evidence
were material
(contrary to what the Magistrate found) and that the
prosecution failed to prove the guilt of the appellant beyond a
reasonable
doubt. The evidence shows that the complainant was
intoxicated at the time of the incident. The evidence does not show
that he
was intoxicated to such an extent that no reliance can be
placed on his evidence at all. That the appellant attacked the
complainant
on route to the complainant's aunt appears from the
evidence of both the complainant and his brother. The Trial Court's
finding
that the prosecution proved that the assault on the
complainant took place beyond a reasonable doubt can, in my view, not
be faulted
and the challenge of that Court's finding on appeal is
without merit.
[6]
The evidence of the complainant and his brother becomes conclusive in
the absence of contradicting testimony on behalf of the
appellant.
The fact that an accused person is under no obligation to testify
does not mean that there are no consequences attaching
to a decision
to remain silent during a trial. Evidence has been presented on
behalf of the prosecution calling for an answer.
If an accused person
chooses to remain silent in the face of such evidence, a court may
well be entitled to conclude that the evidence
is sufficient in the
absence of an explanation. In the absence of such an explanation the
evidence presented on behalf of the prosecution
would be sufficient
to prove the guilt of an accused person. Whether a conclusion is
justified depends on the weight of the evidence.
Once the prosecution
has produced sufficient evidence to establish a
prima facie
case,
an accused person who fails to produce evidence to rebut that case is
at risk that, absent any rebuttal, the
prima facie
evidence
presented by the prosecution would be sufficient to prove the
elements of the offence alleged in the indictment.
[7]
In the present case the appellant chose not to testify. In
Osman
[1]
the Constitutional
Court stated that
"the
fact that an accused has to make such an election is not
a
breach
of the right to silence. If the right to silence were to be so
interpreted, it would destroy the fundamental nature of our
adversarial system of criminal justice".
Similarly,
if evidence is presented during the course of the trial that an
accused was involved in the commission of a crime, and
if the accused
then fails to challenge that evidence, a court may be entitled to
hold that in the absence of testimony from the
accused in that
respect, the evidence is sufficient to prove the crime or part
thereof.
[8]
Criticism may be levelled against the State witnesses as the
Magistrate recorded in his brief judgment. But the evidence of
the
complainant is corroborated by the evidence of his brother in all
material respects. In the absence of evidence refuting the
testimony
of those witnesses, the conviction of the appellant cannot be
faulted.
[9]
In my opinion the application for condonation should be granted and
the appeal against the conviction should be dismissed and
the
appellant's conviction confirmed.
________________________________
HF
JACOBS
ACTING
JUDGE OF THE HIGH COURT
PRETORIA
I
agree, and it is so ordered.
EM
KUBUSHI
JUDGE
OF THE HIGH COURT
PRETORIA
Date:
November 2016
MSIYA,
LUYANDA PERFECT - JUDGMENT
[1]
Osman & Another v Attorney-General Transvaal
1998 (4) SA 1224
(CC)