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2015
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[2015] ZAGPPHC 573
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Ramasodi v S (A414/2014) [2015] ZAGPPHC 573 (29 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,
PRETORIA
30/7/15
CASE NO:
A414/2014
In
the matter between:
THABAKHOLO
TILO
TIMOTHY
RAMASODI
Appellant
and
THE
STATE
Respondent
JUDGMENT
Tuchten
J
:
1
The appellant was charged in a magistrate's court
with the offence of assault with intent to commit grievous
bodily
harm. The appellant and the complainant were both employed at the
time by the Department of Correctional Services at the
Losperfontein
Prison, in the Brits district. It was alleged by the complainant that
on 3 September 2004, during a meeting
of a
committee of a body called the
Case Management Committee (CMC) at the
prison, the appellant
seized a "giant" stapler and struck the
complainant one blow with this instrument
on the left cheek.
2
The appellant testified that the complainant provoked him at the
meeting by pulling
funny faces and laughing at the appellant while
the chairman of the CMC was talking to the appellant. The appellant's
version was
that he picked up the stapler and banged it on the desk
but did not strike the complainant with it. The evidence further
reveals
that arising from this incident there was a disciplinary
hearing involving the appellant but the record of this hearing was
not
before the court below and we therefore do not know what the
allegation against the appellant in that hearing was or what evidence
was given.
3
Despite the appellant's denial of guilt, the magistrate convicted the
appellant
as charged and imposed a suspended sentence. Leave to
appeal against both conviction and sentence was sought and granted by
the
court below. The appellant has abandoned the appeal against
sentence and appeals only against conviction.
4
The state called one witness in addition to the complainant, Mr
Mopedi, the chairman
of the CMC. Mr Mopedi said that the stapler
struck the complainant
... somewhere like to the
mouth, Ido not know whether it was the left side or the right side.
5
Mr Mopedi testified that he observed the appellant preparing to
strike the complainant
a second blow with the stapler which he,
Mopedi, rushed to prevent. But strangely Mr Mopedi said that he did
not know how many
times the complainant was struck with the stapler.
6
Both the complainant and Mr Mopedi said that the blow caused a
laceration which
bled. Mr Mopedi said that the complainant went to
the toilet to wash off the blood but could not remember if the
committee resumed
its session thereafter.
7
The main criticism of the state case advanced on appeal was the lack
of corroborating
evidence on the crucial issue, ie whether the
complainant in fact suffered an injury which bled. I find it strange
that the complainant,
in this day when almost everyone has a
cellphone which incorporates a camera, did not take a photograph of
his alleged injury or
arrange for one to be taken. My unease is
heightened because the complainant says that he went to a medical
practitioner who gave
him a letter confirming the injury. This letter
was referred to in evidence but not produced. In addition, the
complainant laid
a charge with the police. There is no evidence of
the content of the docket or whether the police noted any visible
injury.
8
The magistrate found both the complainant and Mr Mopedi to be
credible witnesses.
The magistrate was particularly impressed with Mr
Mopedi. But the magistrate found as a fact that
... the accused was
infuriated by the actions of the complainant because he was making
gay gestures at him, pulling his face, that
is according to the
accused evidence.
9
In my view this finding is very significant because both the
complainant and Mr
Mopedi denied that the complainant had done any
such thing. Once the magistrate believed the appellant and
disbelieved the state
witnesses on this important issue, I do not
think it was open to the magistrate to find that the state witnesses
were generally
credible. Itfollows that in my view the magistrate
misdirected himself on a material issue in the case. As I see it, the
anger
experienced by the appellant is in this context a neutral
factor: there is nothing in the evidence to suggest that the angry
response
alleged by the appellant, ie that he banged the stapler on
the table, was disproportionate to the provocation. In my view there
is no preponderance of probabilities in this context in favour of the
state
version.
On the contrary, I think that a man angered by such childish
behaviour in a formal workplace meeting is generally more
likely to
make his feelings known in the way alleged by the appellant than by
causing the man provoking him actual bodily harm.
10
The cumulative effect of this misdirection, the disparity between the
versions
of the two state witnesses about where on the complainant's
face the injury actually was and the weakness generally of the
evidence
for the state in relation to the existence or otherwise of
the alleged laceration leads me to conclude that the magistrate ought
to have found that the appellant's version, that he did not strike
the complainant with the stapler, was reasonably possibly true.
11
That being the case, the appeal must succeed. I make the following
order:
1
The appeal against conviction succeeds.
2
The conviction and sentence imposed upon the appellant in the court
below are
both set aside and replaced with the following: The accused
is found not guily and discharged.
_________
NB
Tuchten
Judge
of the High Court
29
July 2015
I
agree.
______________
EM Kubushi
Judge of the High Court
29
July 2015
RamasodiA414.14