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[2015] ZAFSHC 8
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Nel v S (144/2014) [2015] ZAFSHC 8 (29 January 2015)
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IN
THE HIGH COURT, BLOEMFONTEIN
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: 144/2014
In
the appeal between:
PETRUS
JOHANNES LODEWIKUS NEL
…...........................................................
Appellant
and
THE
STATE
…..........................................................................................................
Respondent
CORAM:
RAMPAI, AJP
et
TSATSI, AJ
JUDGEMENT:
RAMPAI, AJP
HEARD
ON:
1 DECEMBER 2014
DELIVERED
ON:
29 JANUARY 2015
[1]
These were appeal proceedings. The appellant was convicted and
sentenced in the district court. He was aggrieved by the verdict
and
the punishment. He came to us on appeal with the leave of this court
which was granted on petition. The respondent opposed
the appeal and
supported the conviction and the sentence but not the compensation
order.
[2]
An incident occurred at Bethlehem on Saturday 2 February 2008.
The scene of the incident was on a farm called Goedehoop
Farm
situated in the magisterial district. The incident took place
between 20:00 and 22:30. There were two men physically
involved
in the incident, namely: Mr PJ Nel, a commercial farmer and
proprietor of the farm and Mr TS Mokoena, a resident
of Giyani
Section Bohlokong, Bethlehem.
[3]
The incident gave rise to two criminal charges. Firstly, the
prosecution alleged that Mr Nel, the appellant, unlawfully
and
intentionally assaulted Mr Mokoena, the complainant at Bethlehem on 2
February 2008, by punching him with clenched fists.
Secondly,
the prosecution alleged that the appellant contravened
Section
120(6)
of the
Firearms Control Act 60 of 2000
read with related
provisions of the statute and schedule 4 thereto, by unlawfully and
intentionally pointing a firearm at the complainant
at the same place
and time as mentioned in the first charge. The firearm was described
as a Mossberg Shotgun.
[4]
The appellant was summoned. He first appeared in court on 12
May 2011. He was tried in Bethlehem District Court.
On 12
July 2011 he pleaded not guilty to both charges. He was legally
represented.
[5]
Notwithstanding his plea of not guilty, he was convicted as charges
on 28 November 2011. The case was then postponed to
30 November
2011 for sentence.
[6]
On 30 November 2011 the court a quo handed down the sentence.
The two offences were taken together as one for the purpose
of
sentencing. The appellant was sentenced to six months
imprisonment which was wholly but conditionally suspended for four
years. The condition was that the appellant should not again be
convicted of assault or contravention of the aforesaid section
committed during the period of suspension. In addition to the
criminal sanction, the appellant was ordered to pay ten thousand
rand
(R10 000.00) civil compensation to the complainant before 1
December 2011.
[7]
The appellant was aggrieved by the conviction, the sentence as well
as the compensation order. He unsuccessfully applied
for leave
to appeal. The refusal by the court
a
quo
to let him come here on appeal,
prompted him to come on petition. CJ Musi J et Naidoo J granted
his petition for leave to
appeal on 09 June 2014.
[8]
As regards conviction, the appellant relied on twenty grounds of
appeal. Among others, the appellant contended that:
“
1.
Sy Agbare Landdros het fouteer deur die getuienis van die klaer in sy
geheel te aanvaar, spesifiek deur nie al die onwaarskynlikhede
van
die klaer se getuienis in ag te neem nie.
2. Sy Agbare
Landdros het foutreer deur die getuienis van die tweede staatsgetuie
in sy geheel te aanvaar, spesifiek deur nie al
die onwaarskynlikhede
van die tweede staatsgetuie in ag te neem nie.
…
4.
Sy Agbare Landdros het fouteer deur nie die weergawe van die
beskuldigde en sy vrou, Maria, as redelik moontlik waar te aanvaar
nie, en gevolglik foutiewelik te min waarde geheg het aan die
getuienis van die beskuldigde en sy vrou.”
[9] The version of
the prosecution was narrated by four witnesses, namely:
9.1
Mr Tsebetse Simon Mokoena, the complainant;
9.2
Mr Paul Mission Mokoena, the complainant’s son;
9.3
Dr Moeti Abel Motloung, the complainant’s doctor;
9.4
Mr Thapelo Petrus Tsotestsi, the investigating officer.
[10]
The version of the complainant was that he lived at Giyani. His
son lived in Pretoria. He had a relative, Mr Radebe,
who lived
on the appellant’s farm. He had been to the farm on three
or so previous occasions. On Saturday 2 February
2008 he and
his son drove to the appellant’s farm. The purpose of
their visit was to pick up Mr Radebe. They
travelled by a light
delivery van. Its loading compartment was covered with a
detachable canvass. The silver van belonged
to his son.
It was registered in Gauteng Province. It was driven by his
son. He was the only passenger.
They, together with their
relative, were supposed to attend a church service on a certain farm
in the vicinity of the appellant’s
farm.
[11]
The complainant did not make an appointment with the appellant.
Since he did not notify the appellant of his intention
to visit his
farm, he did not have the appellant’s consent to enter his
farm. Nonetheless they entered the farm.
They proceeded
towards the homestead. On the way they passed stores.
There he saw some farming implements. He
knew where his
relative lived. Before they reached the relative’s
dwelling, they stopped. At the homestead he
saw the neighbours
of his relative. He ascertained from them that his relative was
not home. There and then they turned
back to depart from the
farm. It was about 20:00. As the van was moving towards
the gate, he saw another motor vehicle
approaching them from the
front. The oncoming motor vehicle stopped and blocked their
way. His son approached and also
stopped in front of the
stationary motor vehicle. He and his son remained in the van.
[12]
Then the appellant got out of his vehicle, a Land Cruiser, and walked
straight to him. He was armed with a rifle.
Firstly, the
appellant demanded that he open the passenger’s window of the
van. His son obliged. The appellant
pointed a rifle at
him. With a firearm in his left hand the appellant repeatedly
punched him with his right fist. Secondly,
in the process of
the assault, the appellant demanded, that he open the glove
compartment of the van. However, he could not,
because it was
locked. Since he could not, the appellant intensified the
assault. Again his son obliged.
The assault
ceased. The appellant searched the glove compartment but found
nothing worth mentioning. Thirdly, the appellant
demanded that
his son open the loading compartment of the van. Yet again his
son obliged. His son alighted from the
van for the first time
and lifted the canvass. Once again the appellant found nothing
sinister at the back of the van.
The appellant warned them that
the farm belonged to him and not Mbeki. On that warning the
confrontation ended. The
appellant gave way and they left his
farm.
[13]
The appellant’s punches landed on his face, neck, upper arm and
shoulder-all on the left aspect of his body. His
left ear was
so badly affected that he was still receiving medical treatment as on
12 July 2011 being the date on which he testified
about the incident
of 2 February 2008. His doctor, Dr MA Motloung, advised him
that his eardrum had been perforated.
Prior to the assault he
had a pre-existent pathology in respect of both ears. Both were
surgically operated by a certain
specialist in Bloemfontein.
The version of the complainant was broadly supported by his son.
[14] The version of
the defence was narrated by two witnesses:
14.1
Mr Petrus Johannes Lodewikus Nel, the appellant;
14.2
Ms Maria Nel, the appellant’s wife
The
version of the appellant was that on Saturday 2 February 2008 he was
on his farm. He, his wife and his sister-in-law occupied
the
farmhouse. His son and others occupied a cottage near the
shed. The route from the farm gate forked into two:
the
one route led to the farmhouse and the other to the shed and the
homestead beyond. In the evening of that particular
day, he
entertained guests on his farm. They left at 21:00. He
and his family went to sleep. He woke up
when his dogs
started barking. He got out of bed, peeped through the window
and saw a motor vehicle moving towards the cottage
of his son.
His son was not home. He had driven to town to attend a social
function that evening. He initially
thought the late visitors
were friends of his son.
[15]
Using his wife’s cellular handset, he called his son to enquire
whether he was expecting visitors. His son’s
reply was
negative. He confirmed that he and his friend(s) were still in
town at Bethlehem. The call was made at 22:26
according to the
specified cellular statement wife of his wife – see item 20,
exhibit g.
He
kept his eyes on the vehicle. He saw it stop behind the
workshop and switch off its lights. He decided to go out
in
order to investigate who the intruders were. He armed himself
with a rifle and a headlamp and stepped out together with
his wife.
They used his Land Cruiser and drove out. His sister remained
behind in order to seek help. Should
they need help, they
arranged that they would call her.
[16]
The couple was already on the way when they noticed that the lights
of the suspicious motor vehicle were on again and that
it was on its
way back. He brought his motor vehicle to a standstill on the
road in an obstructive position. The suspicious
motor vehicle
was forced to stop. He then alighted from the motor vehicle and
walked to the other motor vehicle. He
was armed with a rifle.
He was holding its butt in his left hand. Its barrel was facing
up. The rifle was vertically
resting on his shoulder.
In his right hand he had a headlamp. He spotted two persons in
the stationary van.
Its driver alighted and stood on the ground
behind the driver’s door.
[17]
He neared the driver and enquired what they were doing on the farm.
The driver answered that they were looking for someone.
He was
no longer certain of the name of the person mentioned by the driver
but thought it could have been Radebe. The driver
admitted he
did not know the farm well. However, he could not explain why
he entered the farm if he did not know it well.
Moreover, he could
not say what they were doing at his workshop.
[18]
He then turned to the passenger. He asked him to open the glove
compartment. He found nothing of significance in
there and in
the cabin as a whole. He used his headlamp to search the cabin.
[19]
Once again he turned to the driver. He ordered him to open the
back loading compartment of the van. The driver
obliged.
The canvass was unhooked. He lit the compartment by means of
the headlamp in order to search the loading compartment.
He saw
a small bench and a briefcase.
[20]
He then warned the driver that should they again enter his farm
without his consent he would lock up the farm gate, call the
police,
have them arrested and prosecuted for trespass. He then moved
out of the way to let the van leave the farm.
The van drove
off. He and his wife drove back home.
[21]
In the morning of Sunday 3 February 2008 he enquired from his
farmworkers about the visit of the complainant and his son.
Nobody had a relative by the name of Radebe. He added that no
one of his employees was expecting visitors the previous night
or
evening. None of them was aware that there were strangers on
the farm the previous evening looking for a farm dweller
by that
name. He denied the allegations that he assaulted the
complainant and that he pointed a firearm at him as alleged
or in any
other way whatsoever. The version of the appellant was
confirmed by his wife.
[22]
The trial court principally found that the version of the appellant
was not reasonably possible. The finding that his
version was
not reasonably possible was based on the following grounds, among
others:
22.1
That the complainant sustained an injury to his left ear in the form
of a perforated eardrum and that he fingered the appellant
out as the
villain;
22.2
that the appellant could give no sound reason as to why the
complainant blamed him and nobody else for the aforesaid injury;
22.3
that there were no contradictions between the complainant’s
account of events and that of his son.
22.4
that the complainant had no motive to falsely incriminate the
appellant;
22.5
that the appellant had a motive to aggressively treat the complainant
on account of his frustrations occasioned by previous
acts of
criminals against him in particular and against the farming
communities in general;
[23]
The decisive conclusion of the trial court was, of course, that the
state had proved the guilt of the appellant beyond a reasonable
doubt. Such a conclusion entailed the acceptance by the trial
court that the evidence justified the following rulings:
23.1
that the complainant while on his way to a night church service
elsewhere, took a turn on the appellant’s farm at +/-20:00
to
pick up his relative;
23.2
that the appellant started punching him while he was still pointing
the firearm at him.
[24]
On behalf of the appellant Mr Snellenburg submitted that the trial
court erred in finally concluding that the version of the
appellant
was not reasonably true and secondly in concluding that the
respondent had established the guilt of the appellant beyond
reasonable doubt.
[25]
The trial court had found that the version of the appellant was
corroborated by the evidence of his wife in all respects.
No
serious critique could be levelled against the version of the
defence. Although the trial court could find no unfavourable
aspects which seriously tarnished the version of the appellant and
warranted its rejection, it nonetheless rejected his version,
on the
ground that the appellant had failed to indicate a sound reason as to
why the opposing witnesses would go out of their way
to falsely
accuse him of crimes he did not commit.
[26]
In
S v Lesito
1996 (2) SACR 682
(O) at 687i – 688a Howitz AJ held:
“
Waar
dit slegs bewys word dat ‘n afleiding wat ‘n person maak
verkeerd is, soner dat die feite waarop sy afleiding berus
as vals
bestempel kan word, is daar nie dieselfde ruimte om al sy getuienis
as vals te verwerp nie.
Daar moet ook
daarteen gewaak word om sondermeer op ‘n beskuldigde ‘n
las te plaas om ‘n verduideliking te vestrek
waarom ‘n
getuie namens die Staat sou lieg
.
Waarom juis moet ‘n beskuldigde weet om welke rede ‘n
getuie leuenagtige teen hom lewer? Hy mag dink dat dit om ‘n
bepaalde rede is, terwyl die getuie om ‘n geheel en al ander
rede ‘n grief teen die beskuldigde koester. Sien R v Roga
1935
TPD 101
R v Ntembu
1956 (4) SA 334
(T) op 335H.”
[27]
In
S v M
1979 (2) SA 25
(AD) at 27F-G the court held per Diemont JA that:
“
Again
the cross-examination related only to the question whether the
appellant was present or absent at the relevant time.
The only
witness for the defence was the appellant, who told the court that he
was nowhere near the place where the complainant
alleged she had been
sworn at and that he only returned to the shop at 5.45 pm. The
cross-examination threw singularly little light
on the matter.
The
hackneyed question "Do you say that the State witnesses are
lying?" seldom produces results.
”
[28]
In
S v MB
2014 (2) SACR 24
(SCA) par [19] the court held per Wallis JA::
“
[19]
The prosecutor’s approach was
wrong. Regrettably, the error was compounded by the fact that
it found favour with both
the magistrate and the court below.
The magistrate summarised the evidence of the state witnesses, and
held that they were all satisfactory. She had the
following to
say about Mr BM:
‘
The
accused testified in a vague and unconvincing fashion. He was
evasive about the bad blood between him and the second state
witness
and finally after much probing by the public prosecutor ha said no
bad blood was between them.
He was
unable to commit himself to any clear answer as to why the
complainant would falsely implicate him in such a serious matter.
Further no reason was in fact given either by the complainant or the
defence why the complainant would want to lie against the
accused.
It is highly improbable that the second state witness would involve
her daughter in a process like this simply because she
does not like
the accused.’
The
magistrate went on to explain that, because the relationship between
the families was good, it was improbable that SM would
have upset it
by making up these allegations against Mr BM. For those reasons
she held that the probabilities weighed heavily
in favour of the
state’s case.”
[29]
It follows, then, that the trial court materially erred in expecting
the appellant to provide a reason why the opposite witnesses
would
falsely accuse him. Doing so was tantamount to calling upon an
accused person to prove his innocence, something which
is
constitutionally tabooed.
[30]
The test to be applied when assessing an explanation given by an
accused in any case is that, where the state bears the onus
of proof,
there is no obligation which rests upon an accused person to convince
the court of the truth of his explanation.
If his version is
reasonably true, he is entitled to his acquittal even though his
explanation is improbable. The court is
not entitled to convict
unless it is satisfied, not only that the accused person’s
explanation is improbable, but that it
is beyond reasonable doubt
false. It is permissible to look at the probabilities of
the case in order to determine
whether the version of an accused
person is reasonably true. However, whether one subjectively
believes him is not the test.
The test is whether there is a
reasonable possibility that his evidence may be true.
S
v Mafiri
2003 (2) SACR 121
(SCA) at
125;
S
v V
2000 (1) SACR 453
(SCA) at 455;
S
v Shackle
2001 (2) SACR 185
(SCA)
par [30];
S
v BM
2014 (2) SACR 23
(SCA).
[31]
It would appear that the trial court shifted the onus from the
respondent and placed it on the appellant. The salient
principle remains operative. No onus whatsoever rests on the
appellant to prove his innocence. Moreover, the evidence
of the
appellant was not improbable. It was more probable than not
that a man who set out of his house on a farm, and not
in a city with
glittering lights all around, would take a torch to enable him to
identify an intruder in the dark and to facilitate
the searching of
an intruder and his motor vehicle.
[32]
The impression I gained after reading the judgment, was that the
theme of the trial magistrate’s reasoning was that the
verdict
that the appellant was guilty was largely informed or premised on his
failure to speculatively advance cogent reason as
to why the
complainant and his witness falsely accused him. During the
course of his judgment the trial court repeatedly
reverted to that
theme time after time. I have to mention that the appellant was
confronted with that question by the prosecutor.
His answer was
that he did not know why the opposite witnesses falsely incriminated
him.
[33] A similar
situation arose in
S v BM
2014 (2) SACR 23
(SCA).
At
par [22] the court ,per Wallis JA said:
“
[22]
That brings me to the issue of cross-examination that askes the
witness to speculate.
I have
quoted the passage from the cross-examination of Mr BM, in which the
prosecutor demanded to know why SM should lie in her
evidence.
That is a question that is frequently asked in cases such as this.
It is not a proper question because
, as
Mr BM quite correctly pointed out,
it
calls upon witnesses to speculate about matters, in respect of which
they can have no knowledge.
Later
in his evidence, in response to another similar question requires the
witness to express an opinion about the conjecture
and as such the
answer is irrelevant and inadmissible.
It
follows that questions directed at eliciting this type of evidence
are impermissible and should be disallowed.
”
[34]
At par [23] the court went on to say:
“
[23]
This was not a case where the accused had, in evidence-in-chief,
expressed a belief that the case against him had been fabricated
for
a particular reason, the validity of which might have been the proper
subject of cross-examination. Instead the prosecutor
was the
one who asked Mr BM to say why SM would make false allegations
against him. The question was asked on the postulate
that he
was being falsely accused. Accepting that postulate,
it
was unfair to expect him to speculate on the matter
.
That was especially so in the environment of a court where he was
being pressed for an answer under cross-examination.
The
natural human inclination in that situation is to provide some
answer, however speculative or far-fetched, which may then be
used to
attack one’s credibility.
That
is what happened here. Magistrates and judges must be alert to
disallow such cross-examination. An accused person
who claims
to have been falsely accused is under no obligation to explain the
motives of the accuser and should not be asked to
do so.
”
[35]
At par [24] the court held:
“
[24]
Instead of disallowing the
cross-examination, the magistrate elevated Mr BM’s perceived
inability, to provide a plausible
reason for SM to fabricate these
allegations against him, to the major reason for convicting him, as
appears from the passage from
her judgment quoted in para [19].
She returned to this theme later in the judgment when she said:
‘
The
court finds that there is no motive for the complainant to falsely
implicate the accused. The accused’s evidence
is not
compatible with the general circumstances of the case, as reflected
and facts which are common cause.”
However,
as there had been no prior analysis of the ‘general
circumstances of the case’, the latter statement added
nothing
to the magistrate’s reasons.”
[36]
In
S v Ipelegeng
1993 (2) SACR 185
(T) at 189c-d Mahomed J grappled with the confusion
that an accused person must necessarily be regarded as guilty because
a complainant
had no apparent motive to falsely implicate him and
because the accused person was unable to suggest one probable
motive.
The judge spelled out why such an approach was flawed
an fraught with danger.
“
It
is dangerous to convict an accused person on the basis that he cannot
advance any reasons why the State witnesses would falsely
implicate
him. The accused has no onus to provide any such explanation.
The true reason why a State witness seeks to give the testimony he
does is often unknown to the accused and sometimes unknowable.
Many factors influence prosecution witnesses in insidious ways.
They often seek to curry favour with their supervisors; they
sometimes need to placate and impress police officers, and on other
occasions they nurse secret ambitions and grudges unknown to
the
accused.
It is for these reasons
that the Courts have repeatedly warned against the danger of the
approach which asks: Why should the State
witnesses have falsely
implicated the accused.
”
[37]
I revert to
S v BM
supra
at
par [26]:
“
[26]
There will be circumstances in which the absence of any apparent
reason for the prosecution witnesses to fabricate a case against
the
accused is a relevant factor for the court to take into account in
the overall assessment of the evidence. However, on
its own,
where no other circumstances are present pointing towards the guilt
of the accused, it is not a proper or sufficient basis
for a
conviction.”
[38]
At par [27] Wallis JA went on:
“
[27]
In this case both the magistrate and the
court below adopted an incorrect approach to the consideration of the
evidence. In
effect they held that the inability of Mr BM, to
advance a plausible reason for SM fabricating these allegations,
meant that her
evidence had to be accepted and his rejected.
That was incorrect and came close to placing an onus on Mr BM to
prove his
innocence. The proper approach was to evaluate both
versions against the inherent probabilities, taking account of all
the
evidence. If, after undertaking that exercise, it appeared
that his version could reasonably possibly be true, even if it
were
improbable or in some respects untruthful, he was entitled to be
acquitted.
”
See
R v Mtembu
1956 (4) SA 334
(T) at 336 A-B;
S
v Makobe
1991 (2) SACR 456
(W).
[39]
The particular aspect clearly became a dominant theme of the trial
magistrate’s judgment. It was quite apparent
that undue
onus was erroneously placed on the appellant. The law did not
require him to prove his innocence. Moreover,
his evidence was
not blemished by disturbingly unfavourable features which rendered it
unsatisfactory and improbable. However,
the same could not be
said about the complainant’s version.
[40]
There were certain troubling and unfavourable features which had an
adverse impact on the veracity of the evidence given by
the
complainant and his son. Neither the father nor the son knew
the first name of their relative, Mr Radebe. They
never reached
their relative’s home. According to the father, the
relative’s neighbour told them that he was
not home.
According to the son, some children in the homestead told them so.
According to the father the church was
supposed to start at 19:00.
According to the son the church service was supposed to start at
20:00. According to the
father they could not have been on the
farm at 22”26 because by then the church service would have
ended. According
to the son the church service ended the next
morning at 04:00. According to the father the appellant
aggressively demanded
that he open the passenger window.
According to the son he opened the passenger window on his own before
the appellant had
hardly said a word and waited for the appellant to
get nearer.
[41]
Those contradictions could not be ignored
S
v Scott-Crossley
2008
(1) SACR 223
(SCA) par [18]. In this instance they were.
Consequent the finding by the trial court that there were no
contradictions
between the evidence of the complainant and his son
was not supported by the evidence. In my view those
contradictions and
inconsistencies were telling against the version
tendered in support of the prosecution case. Since the evidence
of the appellant
and his wife concerning the call he made to his son
was not challenged by the prosecutor, its value could not be
subsequently watered
down. The importance of that cellular
evidence was that it tended to enhance probative value of appellant’s
version.
Conversely it also tended to diminish the probative
value of the complainant’s version as regards the time of the
encounter.
That evidence had to be considered together with the
evidence tendered by the prosecution concerning the time of the
encounter.
I have already outlined serious contradictions and
inconsistencies which inevitably raised questions about the purpose
of their
stated visit to the farm. To make matters worse, their
relative, a resident worker on the farm, was never called to testify
notwithstanding the fact that the appellant disputed his alleged
existence. His evidence would have been relevant to the
purpose
of the night visit to the farm.
[42]
Where the two conflicting versions are comparatively and objectively
scrutinized and analysed, the versions of the defence
emerged more
probable, credible and reliable than that of the prosecution.
Accepting that as sound propositions implies that the
appellant’s
averments that he approached the suspicious van carrying a rifle in
the one hand and a headlamp in the other,
was reasonably true and
that the complainant’s denial that the appellant also carried a
headlamp or a torch was probably
untrue. With a rifle in the one hand
and a torch in another, it becomes difficult to imagine how the
punching could practically
have taken place.
[43]
It must also be accepted, as reasonably true, that the appellant did
call his son when he saw the vehicle in the vicinity of
his cottage.
The objective cellular data suggested that there was cellular contact
between the cell 082 [...] and cell 082
4[...] at 22:26:50 on 2
February 2008.
[44]
Mr Snellenburg submitted:
“
Die
oproep is nie ontken tydens die appellant en sy eggenote se getuienis
en kruisverhoor nie en dit is by ooreenkoms as bewysstuk
ingedien
deur die appellant se verteenwoordiger. Natuurlik het die klaer
en Paul die tyd ontken. Die staat toon die
oproep en die tyd en
gevolglik objektiewe getuienis vir die tyd waarop die voertuig deur
die appellant op die plaas opgemerk is.
Dit
plaas onmiddelik die getuienis vir die feit dat die klaer en sy seun
nie tot by die werkers se wonings gery het, en ter verduideliking.
Dit is onwaarskynlik dat kinders in die donker half elf in die aand
buite sal speel en dat vir hulle gevra sou word of ene Radebe
daar
is, al dan nie.” Die verhoorhof se bevinding dat die klaer en
sy seun mekaar glad nie werspreek het nie, is eenvoudig
vekeerd. Daar
is op die volgende ondergemelde aspekte, wat wesenlik is,
weersprekings.”
[45]
Contrary to the finding of the trial court, the evidence of the
prosecution witnesses was not without contradictions, inconsistencies
and unsatisfactory aspects. What could not be denied was that
the complainant and his son entered the appellant’s farm
at an
awkward hour of the night without his prior consent; that they were
stopped by the appellant and that their van was searched
by the
appellant; that he was entitled to do so in those prevailing
circumstances and that the complainant subsequently left the
farm
with his son. It was his farm, his private road, his right to
restrict entry and his right to confront night intruders in
order to
protect himself, his family and his property.
[46]
The version of the appellant, as corroborated by his wife, was
reasonably true. It was not as suspect as that of the
complainant and his son. The finding that the appellant’s
version was not possibly true, in the light of the version
of the
prosecution as a whole, was one which I, on appeal, cannot support.
[47]
It is my respectful view, that the trial court committed material
misdirection in rejecting the version of the appellant.
I was
not persuaded that the guilt of the appellant was proven beyond
reasonable doubt. It is my considered view that there
was no
probably credible and reliable evidence to sustain such a
conclusion. The appellant was entitled to be acquitted.
In view of the material misdirection, appellate interference is
justified. I would, therefore, uphold the appeal in respect
of
both convictions as well as the compensation order.
[48]
Accordingly I make the following order:
48.1
The appeal succeeds;
48.2 The convictions
in respect of charges 1 and 2 are set aside;
48.3
The compensation order is likewise set aside.
_________________
M.
H. RAMPAI, AJP
I
concur
.
_______________
E.K. TSATSI, AJ
On
behalf of the appellant: Adv. N. Snellenburg
Instructed by:
Honey Attorneys
BLOEMFONTEIN
On
behalf of the first respondent: Adv. M.M.M. Moroka
Instructed by:
Director
of Public Prosecutions
BLOEMFONTEIN