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South Africa: North Gauteng High Court, Pretoria
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2015
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[2015] ZAGPPHC 943
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Stone v S (A628/2014) [2015] ZAGPPHC 943 (29 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
30/7/14
CASE
NO: A628/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
FRANS
STONE
Appellant
and
THE
STATE
Respondent
JUDGMENT
Tuchten
J
:
1.
The appellant was charged in a regional court with the crime of
malicious injury to property. The allegation against him was
that on
21 October 2011 and on the Watermeyer Street off ramp leading from
the N4 North motorway, he deliberately broke the driver's
door window
of a Mercedes Benz motor car, then being driven by the complainant.
2.
The appellant pleaded not guilty but was convicted as charged and
sentenced to a fine of R2 000 or two months imprisonment with
a
further four months wholly suspended for five years. He was refused
leave to appeal by the court below but granted leave on petition
to
this court against both conviction and sentence.
1
3.
Only the complainant and the appellant gave evidence before the court
below. Except for a sketch made by the appellant's attorney
during
the course of cross-examination of the complainant, there was no
evidentiary material before the court below other than
the testimony
of these two witnesses. Immediately before the incident, it seems
that the complainant executed a risky manoeuver
to avoid a tail back
of traffic she saw ahead of her. She had wanted to take the Rossouw
Street off ramp, which is to the north
of the Watermeyer Street off
ramp. When she saw that traffic ahead of her was congested she
swerved onto the Rossouw Street off
ramp and parked on the yellow
chevrons in the off ramp because there were vehicles ahead of her
that had entered the off ramp in
a more conventional manner.
4.
At the time the complainant swerved her Mercedes Benz off the N4, the
appellant was driving a motor cycle. He intended to leave
the N4 at
the Rossouw Street off ramp. The
swerve executed by the complainant
placed him
in danger. The appellant managed to avoid any collision but he
decided instead of proceeding on his way to confront
the complainant
and remonstrate with her.
5.
it is common cause that the appellant parked his motor cycle and
approached the complainant as she sat in the driver's seat of
the
Mercedes Benz. It was clear that the appellant was very angry as he
believed that the complainant's conduct had recklessly
endangered his
life. There is a dispute as to whether the driver's door window was
open or not when the appellant approached the
complainant. The
complainant said that the window was closed and that she opened it
"slightly" to hear what the appellant
was saying. The
appellant said that the window was about "half a foot"
2
open
when he reached the Mercedes Benz.
6.
It is common cause that the appellant put it to the complainant in
strong terms that she had endangered him. The complainant
said that
the appellant was shouting at that stage and Iaccept that he was. But
there the accounts diverge.
7.
The complainant testified that she told the appellant that she was
sorry and that she had not seen him, whereupon the appellant
grabbed
the window glass and pulled it, causing the glass to shatter and
pieces of glass to fall into the car.
8.
The appellant, on the other hand said in evidence that he was wearing
riding gloves with rubbers both inside and on the outside
of the
gloves to afford protection to the rider if he came off his machine.
It was not disputed that the appellant was indeed wearing
such
gloves. The appellant said that he rested his gloved hands on the
glass of the partially opened window when he admonished
the
complainant.
9.
The appellant said that when he admonished the complainant she
laughed and said something in a language he did not understand
and
activated the mechanism to close the window. The appellant said that
he tried to withdraw his gloved hands from the closing
window but as
he did so the friction of the gloves on the window caused the window
to shatter. The appellant testified:
I
surmise that the rubbers got gripped onto the glass of the window,
and that is why it pulled back when my hands pulled back. Icannot
say
hundred percent surely, but there is marks on top of my gloves that
Ibelieve was caused by the window sole [?] of the car when
I pulled
back.
10.
This proposition was strongly challenged by the prosecutor in cross
examination. He put it to the appellant that the appellant
was lying:
So,
and I put it to you, sir, that if, if, your fingers were inside the
window as the window was going up, obviously it was going
to stop and
you were going to take it out without the window being broken. How
possible can the window break?
11.
To this the appellant responded that some vehicles do not have auto
stop protection on the window mechanisms, that he did not
know
whether that specific vehicle had such protection and that he was not
prepared to take the chance of his fingers being crushed.
12.
No effort was made to secure the production of the gloves which the
appellant said bore the marks on their tops which would
demonstrate
the truth of his version.
13.
In dealing with this central issue, the regional magistrate said in
his judgment:
Common
sense says that if you are simply removing your hands from a window
that is closing, you would release your grip from that
window and you
would move your hands away as swiftly as possible. Swiftly cannot be
equated to forcefully. Now it is clear to me
that the fact that the
window broke, that there was no swift movement of the fingers away
from the window. The fact that the window
broke also leaves the court
to conclude, that the window was [being] gripped as opposed to being
released.
…
...
There
is no evidence to indicate that [the appellant's] fingers were
actually caught between the
channel of the
window and the window itself
3
14.
In my view this passage from the judgment shows that the regional
magistrate fully appreciated the appellant's defence which
was that
during the process when the appellant was withdrawing his gloved
hands, there was contact between the gloves both on the
glass below
them and on the top of the window above them and that the rubber
protections on the gloves increased the friction between
the gloves
and the two surfaces in question.
15.
But in finding that there was no evidence on the strength of which
the regional magistrate could legitimately conclude that
the
appellant's fingers were actually caught in the manner described,
Ithink that the regional magistrate erred. There was such
evidence,
given by the appellant. And in addition, there was a claim by the
appellant, which was left uncontradicted and uninvestigated
by the
prosecutor, that objective evidence, ie the gloves themselves, would
support the appellant's version. In these circumstances,
Ithink that
the appellant ought to have been given the benefit of the doubt and
that his evidence on the crucial issue should have
been found to be
reasonably possibly true.
16.
The issue raised in the court below by the appellant's defence was
whether the appellant had the requisite intention to damage
the
complainant's property. It is common cause, as was of course
appreciated by the regional magistrate, that the State bore the
onus
of proving beyond a reasonable doubt that the appellant had the
requisite intention. The appellant said that he had no such
intention
and that the damage occurred while the appellant was acting to
protect himselffrom injury to his fingers. For the reasons
given,
Ithink that the magistrate erred in concluding that the intention to
damage property had been proved beyond reasonable doubt.
17.
it follows that 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 guilty and discharged.
___________________
NB
Tuchten
Judge
of the High Court
29
July 2015
I
agree.
___________________
EM
Kubushi
Judge
of the High Court
29
July 2015
StoneA628.14
1
I
was one of the members of the court who granted the appellant leave
to appeal. I raised with counsel whether it was proper for
me in
these circumstances to hear the appeal. Counsel had no objection to
my hearing the appeal.
2
About 15cm
3
My
emphasis