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[2014] ZANCHC 7
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Boshoff v S (CA&R 56/13) [2014] ZANCHC 7 (30 May 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(Northern Cape
Division, Kimberley)
Case
No: CA&R 56/13
Heard:17
APRIL 2014
Delivered:30
MAY2014
In the matter
between:
PETRUS JOHANNES
BOSHOFF
...................................................
Applicant
v
THE
STATE
..................................................................................
Respondent
Coram: Kgomo JP;
Williams J et Phatshoane J
JUDGMENT
ON APPEAL
KGOMO JP et
PHATSHOANE J
ORDER
The appeal on
conviction is dismissed.
[1] Williams and
Phatshoane JJ could not agree on the outcome of the appeal on
conviction that they heard on 09 December 2013.
That gave rise to
the constitution of Full Court hearing on 17 April 2014. The
district Magistrate, Ms P R Prinsloo, convicted
the appellant of
Housebreaking with the intention to contravene s 1(1)(a) of the
Trespass Act, No 6 of 1959 (the Trespass Act),
and trespass. The
sentence imposed was R5000-00 or in default of payment the appellant
was to serve one year imprisonment wholly
suspended for five years on
certain conditions.
[2] Williams J is of
the view that the appellant’s explanation that he was dragged
into the complainant’s (Ms Desirè
Boshoff’s) house
by the latter’s partner, Mr Gustav Brink, through a bedroom
window is reasonably possibly true. We
disagree. Williams J
overlooked a number of common cause or undisputed or acceptable
factors adverted hereinafter.
[3] The appellant
claimed that his visit to the complainant’s house (which they
did not share as they were divorced) was lawful
because he merely
exercised his right of access to the minor child who was 22 months
old at the time of the incident on 01 December
2011. The appellant
arrived at the complainant’s house at the ungodly hour of 23h40
and was removed from the house at 01h00
the following morning when
the police arrested him.
[4] The appellant
pressed the buzzer several times but the complainant refused to let
him in. She told him several times to leave
her premises but he
would not barge. As the appellant was causing a nuisance the
complainant removed the batteries of the buzzer
to silence it.
[5] The complainant
and the appellant are ad idem that the appellant went round the house
to a bedroom window. The complainant
says he “banged” on
the window. The appellant stated that the window stood half-open.
He pushed it further open and
swiped the blinds to a side in order to
see his child. If he gained entry in this manner this would have
constituted a displacement
of a structure of the house and therefore
conformed to the definition of housebreaking. The appellant
intimates that the complainant
shut the window in his face. He
infact invaded the occupants’ privacy in this manner:
“(E)k het toe
in Mnr Gustav Brink se gesig vasgekyk waar hy in sy onderklere gelê
het. Ek het toe aan hom gevra asseblief,
gee my net die kans ek wil
net my kind sien. En die volgende ding terwyl ek nog besig was om
met hom te praat het Desirè
verbygekom en die hoofslaapkamer
venster in my gesig toegemaak.”
[6] Undeterred by
the complainant’s protestations the common cause facts shows
that the appellant went to the next window.
It was partly opened. He
admits:
“(I)n my
verbygang het ek gesien die slaapkamer se kleinvenstertjie, hy is
oop. Ek het toe op die boom geklim en skuins oorgehang
en die
venster met my hand opgetel en met my ander hand het ek so vasgehou
aan die vensterbank.”
This is the window
through which the appellant gained entry. In the process the window
was broken and he sustained a cut-wound
to his head for which he
received medical treatment.
[7] The appellant’s
version which, as I stated earlier, Williams J accepts, is that Mr
Brink pulled him into the house through
this window. Mr Brink who
had been present when the case was previously postponed was not
available on this occasion. The State
closed its case as Mr Brink
was engaged elsewhere out of town. For what conceivable reason would
Mr Brink have pulled the appellant
into the house? It must be borne
in mind that the complainant phoned the police to evict the appellant
from the premises even
before he gained entry into the house. This
is also where the police arrested him: in the house.
[8] The appellant
testified that it was in fact he who phoned the police because he
received a report through unspecified sources
that the child was
being ill-treated. However, he did not report the matter to the
police or the Social Welfare Department before
or after the night of
drama. Nor did he make any attempt to have the child medically
examined. Mr Nel, for the appellant, could
not explain why the
appellant would phone the police to meet him at the complainant’s
place at that late hour when there
was no emergency or why the
appellant did not report the alleged abuse at the police station and
not at complainant’s residence.
[9] On his own
admission the Deed of Settlement which was made an order of Court
decreed that the appellant could have the child
with him on Tuesdays
and Thursdays when the pre-school came out in the afternoon until
18h00 when he was supposed to return the
child or when the
complainant had to fetch the child from his place. The nocturnal
visit was therefore totally uncalled for.
In fact the visit smacks
of jealousy against the friendship that the complainant had
established with someone else.
[10] What could also
not be explained by the appellant’s counsel is why Mr Brink did
not assault or fight the appellant after
he had allegedly forcefully
pulled him inside. The Magistrate found that the appellant’s
explanation of and demonstrations
on how he was hauled inside the
house is improbable. She reckoned that Mr Brink would have had to
lift up the appellant which
would have been more arduous by the
applicant’s resistance. These are observations which are made
by the Magistrate who
was imbued with the trial and enjoyed a
distinct advantage over us as a court of appeal. In S v Hadebe and
Others 1997(2) SACR
641 (SCA) at 645e-f the Court per Marais JA held:
“(I)t would be
as well to recall yet again that there are well-established
principles governing the hearing of appeals against
findings of
fact. In short, in the absence of demonstrable and material
misdirection by the trial Court, its findings of fact are
presumed to
be correct and will only be disregarded if the recorded evidence
shows them to be clearly wrong. The reasons why this
deference is
shown by appellate Courts to factual findings of the trial court are
so well known that restatement is unnecessary.”
See also R v
Dhlumayo and Another 1948(2) SA 677 (A) at 705 -706.
[11] The appellant
was also not nearly as caring as his counsel made him out to have
been or would have us believe. He made lots
of noise and woke up the
child at the dead of night. He prised away the child from the
complainant causing her to cry and squirm
with pain to the point
where Mr Brink implored complainant to let the child rather go lest
she be seriously injured. When the
appellant got hold of the child
he rummaged through the complainant’s and the child’s
clothing without the complainant’s
consent. He did not leave
thereafter but laid on the child’s bed for something
approximating an hour, when the police removed
him at 01h00. The
appellant stated that he could not leave the house because Mr Brink
prevented him to. Having regard to his
obstreperous conduct
throughout we are, respectfully, unable to fathem on what basis
Williams J accepts his explanation on this
aspect (at para 29 below).
[12] The fallacy of
the appellant’s defence is so far-fetched and has only to be
stated to be rejected. To the extent that
the defence counsel and
Williams J suggest that he State relies on circumstantial evidence
only the evidence proves otherwise.
For example, the complainant
heard the shattering of the windowpane and the appellant bears the
scars thereof. The complainant
intimates that she saw the appellant
breaking into the house. She may have been ambivalent on this point.
It should nevertheless
be understood that she was not static as she
checked on the well-being of child from time to time whilst keeping
an eye on the
movements of the appellant. What matters is that the
appellant supports her partly on two occasions on this aspect when he
testified
in-chief:
“Mr
Liebenberg: Die ruit was oop en u het hom oopgemaak. --- Dis korrek
ja, ek het hom toe oopgestoot met my regterhand. ---
Ek het vir –
uit my linkeroog het ek gesien Desirè staan so skuins voor my.
Ek het toe aan hulle probeer verduidelik
hoekom ek daar is. Is daar
gordyne of enige iets voor daardie venster? --- Daar is `n blinder
voor die venster gewees. So basies
wat gebeur het, waar ek my
vasgehou het met my – ek het die venster oopgehou met hierdie
hand en met hierdie linkerhand het
ek die “blinds” so met
my hand so weggestoot.
Ja. --- So dis
hoekom ek kon nou nie hulle volledig gesien het daar wie almal
presies in die kamer is nie. So ek kon net die gedeeelte
waar ek kon
deurgesien het, die hoekie van die blinder wat ek weggeskuif het, kon
ek vir Desirè so met my linkerkant van
my oog, want ek het so
skuins gekyk, kon ek gesien het daar staan sy.”
[13] Our approach,
which diverges from Williams J’s reasoning, accords with the
dictum by Navsa JA in S v Trainor 2003(1)
SACR 35 (SCA) at 40f –
41C (paras 8 and 9) where he stated:
“[8] The
passage from the magistrate's judgment quoted in para [6]
demonstrates a misconception of how evidence is to be
evaluated. In S
v Van Aswegen2001 (2) SACR 97 (SCA) Cameron JA (at 101a - e), after
observing that this misconception has its origins
in cases like S v
Kubeka
1982 (1) SA 534
(W) at 537F - G and S v Munyai
1986 (4) SA 712
(V) at 715G, referred with approval to S v Van Tellingen
1992 (2)
SACR 104
(C) at 106a - h and S v Van der Meyden
1999 (1) SACR 447
(W)
at 449h - 450b. In the latter case Nugent J, with reference to the
dictum in the Kubeka case, said the following (at 449h -
450b):
'It is difficult to
see how a defence can possibly be true if at the same time the
State's case with which it is irreconcilable
is ''completely
acceptable and unshaken''. The passage seems to suggest that the
evidence is to be separated into compartments,
and the ''defence
case'' examined in isolation, to determine whether it is so
inherently contradictory or improbable as to be beyond
the realm of
reasonable possibility, failing which the accused is entitled to be
acquitted. If that is what was meant, it is not
correct. A court does
not base its conclusion, whether it be to convict or to acquit, on
only part of the evidence. The conclusion
which it arrives at must
account for all the evidence. . . .
The proper test is
that an accused is bound to be convicted if the evidence establishes
his guilt beyond reasonable doubt, and the
logical corollary is that
he must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning
which is appropriate to the
application of that test in any particular case will depend on the
nature of the evidence which the
court has before it. What must be
borne in mind, however, is that the conclusion which is reached
(whether it be to convict or
to acquit) must account for all the
evidence. 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.'
[9] A conspectus of
all the evidence is required. Evidence that is reliable should be
weighed alongside such evidence as may be
found to be false.
Independently verifiable evidence, if any, should be weighed to see
if it supports any of the evidence tendered.
In considering whether
evidence is reliable, the quality of that evidence must of necessity
be evaluated, as must corroborative
evidence, if any. Evidence, of
course, must be evaluated against the onus on any particular issue or
in respect of the case in
its entirety. The compartmentalised and
fragmented approach of the magistrate is illogical and wrong.”
[14] See also S v
Chabalala 2003(1) SACR 134 (SCA) para 15 where the following is said:
“[15] The
trial court's approach to the case was, however, holistic and in this
it was undoubtedly right: S v Van Aswegen2001
(2) SACR 97 (SCA). The
correct approach is to weigh I 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. The result may prove that one scrap of
evidence or one defect in the case
for either party (such as the
failure to call a material witness concerning an identity parade) was
decisive but that can only
be an ex post facto determination and a
trial court (and counsel) should avoid the temptation to latch on to
one (apparently) obvious
aspect without assessing it in the context
of the full picture presented in evidence. B Once that approach is
applied to the evidence
in the present matter the solution becomes
clear.”
[15] The aforegoing
are the proved facts. The circumstantial part of the evidence which
appellant’s counsel relied so heavily
upon forms an almost
insignificant part of the case. Even so that aspect of the evidence
is compelling and leaves no escape route
to the appellant. See S v
Reddy and Others 1996(2) SACR 1 (SCA) at 8c-9f. It would have been
prudent for the Magistrate to have
invoked her powers in terms of
s
186
of the
Criminal Procedure Act, 51 of 1977
, to call Brink as a
witness. The fact that Brink was not called is not fatal for the
State case though. We are satisfied that
the appellant was an
out-and-out liar and that the Magistrate correctly rejected his
version.
THE CORRECTNESS
OF THE CONVICTION
[16] Appellant’s
counsel took issue with the fact that the trial Magistrate convicted
the appellant of housebreaking with
intent to contravene s 1(1) of
the Trespass Act, No 6 of 1959, and the contravention thereof. He
argued that in effect the appellant
was convicted of two offences.
According to counsel regard being had to the competent verdict in
s
262(2)
of the
Criminal Procedure Act the
Magistrate should not have
convicted the appellant of the substantive offence of trespassing in
addition to the housebreaking.
Reliance for this view was placed on
S v Konyana en `n Ander 1992(1) SACR 451 (O). The dictim by the Free
State Court is that
where an accused is charged with housebreaking
with the intent to commit an offence to the prosecutor unknown and
the evidence
shows that the accused entered the house to take shelter
there, he/she can be convicted of housebreaking with the intent to
trespass
but not also of the substantive offence of trespassing. The
Konyana case does not show that the accused faced and was convicted
on two charges.
[17] We have to
agree with the Magistrate who has invoked the decision in S v Jasat
1997(1) SACR 489 (SCA) at 493b-d where Nienaber
JA (Scott et Plewman
JJA concerning) stated:
“The
appellant's first line of attack was that trespass as such is not
recognised as a crime by the common law. It is a statutory
offence,
enacted by the Trespass Act 6 of 1959,---. But that does not mean, as
was contended on behalf of the appellant, that a
conviction of
housebreaking with intent to commit trespass and trespass is an
incompetent verdict and that the appellant is for
that reason alone
entitled to be acquitted. To uphold that contention would be to defer
to extreme formalism. The appellant, after
all, was not convicted of
an offence which in law did not exist; he was convicted of an offence
which did exist but which was too
tersely formulated in the judgment.
The correct description of the offence would have been 'housebreaking
with intent to contravene
s 1(1)(a) of the Trespass Act 6 of 1959 and
the contravention thereof'. There could never have been any doubt in
the minds of anyone
concerned with the trial that in essence that was
the result the trial court sought to achieve. Counsel for the
appellant fairly
conceded that if the appeal should otherwise fail no
reason exists why this Court should not substitute a proper
description of
the offence for the less accurate one of the trial
court.”
The SCA then made
the following order:
“1.The
following wording is substituted for the wording used by the trial
court in convicting the appellant:
The accused is
convicted of housebreaking with the intent of contravening s 1(1)(b)
of the Trespass Act, 1959, and the contravention
thereof.”
[18] The contention
by counsel for the appellant lacks substance because housebreaking
with the intent to commit a crime is defined
as follows in the South
African Criminal Law and Procedure, Vol
11, Hunt, 2nd
Edition, p 707:
“The common
law crime of housebreaking with intent to commit an offence consists:
(1) in the removal or displacement of some
part of the structure of
a house, or of premises in the nature of a house, with the object of
gaining admission thereto and committing
some crime therein and (2)
in the entry of the offender into the house or premises broken, or
the insertion by him into the house
or premises of any part of his
body or any instrument with which he proposes to exercise control
over anything within the house
or premises.”
Snyman, Criminal
Law, 5th Edition, p549, comments in this manner on this crime:
“Housebreaking
alone not a crime
Housebreaking per se
is not a crime (although the act of housebreaking as such may,
depending upon the circumstances, amount to
the crime of malicious
injury to property). To constitute the crime the housebreaking must
be accompanied by the intention of committing
some other crime. In
practice housebreaking is mostly committed with the intention to
steal, and charged as such, but in principle
charges of housebreaking
with intent to commit any crime are competent. The legislature has
even sanctioned charges of housebreaking
with the intention of
committing a crime unknown to the prosecutor.”
[19] Housebreaking
is a composite offence which invariably consists of two substantive
offences: Malicious damage to property or
the breaking in and/or
entering. Once inside the building or structure the second offence
would be committed: Eg, theft or rape
or robbery or murder etc.
Therefore to the extent that S v Konyana en `n Ander 1992(1) SACR 451
(O) is inconsistent with S v Jasat
1997(1) SACR 489 (SCA) we consider
it to be overruled on the basis of the precedent system. See Ex
Parte Minister of Safety:
In Re S v Walters 2002(4) SA 613 (CC) at
644D – 645A (para 57). Alternatively, we regard S v Konyana as
wrongly decided
and we decline to follow it.
[20] The appeal must
therefore fail. The following order is made:
The appeal on
conviction is dismissed.
F DIALE KGOMO
JUDGE
PRESIDENT
High Court of
South Africa
Northern Cape
Division, Kimberley
Kimberley
M V PHATSHOANE
JUDGE
High Court of
South Africa
Northern Cape
Division,
WILLIAMS J:
21. I have read the
majority judgment of Kgomo JP and Phatshoane J in this appeal and
respectfully disagree with their findings.
There can be no
doubt that the appellant made a nuisance of himself by persistently
ringing the doorbell at the complainant’s
house in the middle
of the night despite her requests for him to leave the premises. He
also invaded the privacy of the occupants
of the house by pulling
aside the curtains of one bedroom window and the blinds of another to
peer inside. His justifications
for these acts i.e. that he was
concerned for his young child’s welfare was on the evidence
correctly rejected by the magistrate.
The appellant’s
unacceptable behaviour in this regard and the magistrate’s
obvious sympathy for the complainant unfortunately,
in my view, led
to several misdirections in assessing the evidence relating to the
main issue in dispute between the parties -
whether the appellant
broke into the complainant’s house by climbing through the
bedroom window or whether he was pulled
through the window by the
complainant’s male friend, a certain Mr Brink.
The magistrate
failed to consider the contradictory evidence of the complainant who
was a single witness. Contradictions appear
not only between two
statements made by the complainant to the police after the incident
but also between these statements and
her versions given during
examination-in-chief and cross-examination.
22. The different
versions of the complainant as to the manner in which the appellant
entered her house can be extracted from the
evidence as follows;
22.1 Her first
statement to the police shortly after the incident that the appellant
broke the window in order to climb through
it;
“Petrus het
aangehou klop teen die venster en hy het die klein venster in die
kamer gebreek en daar deurgeklim. Ek het begin
skree op hom om uit
te gaan maar hy’t my gesê hy kom haal sy kind.
Ek het dadelik na my
22 maande dogter se kamer gehardloop en haar uit haar bed gehaal en
haar vasgehou.”
22.2 Her second
statement to the police during the day following the incident that
the window broke while he was climbing through
it;
“Hy het
omgeloop na my kleiner venster geloop waar daar geen diefwering op is
nie. Hy het die venster verder oopgemaak en
het deur die venster
geklim, terwyl hy deurklim het sy een voet vasgehaak en het sodoende
die venster uitgeskop. Ek het na my
dogter se kamer gegaan aangesien
sy wakker geword het van die geraas.”
22.3 Her
evidence–in–chief that she did not see the appellant
climbing through the window;
“AANKLAER Die
Hof behaag u Edele. Het u gesien hoe Mnr Boshof deur die venster
klim” --- Ek het gehoor – ek
was op daardie stadium toe
hy begin deurklim het Leané gehuil, so ek was in haar kamer
gewees wat ek haar gaan optel het
want sy slaap – haar
kamertjie is net langs ons slaapkamer.
HOF:So u hoor dit, u
was nou nie by om te sien hoe klim hy nie?
---Nee U Edelagbare.
Deur die venstertjie
nie? --- Nee Edelagbare.
AANKLAER: Hof
behaag Edelagbare. Okay, u hoor hy klim deur en u is nou nog besig
in Leané se kamertjie met haar terwyl
sy huil, wat gebeur toe?
--- Toe Mnr Boshof – want ek het toe met Leané uit haar
kamer uitgekom, toe kom Mnr Boshof
toe in die gang af uit ons kamer
uit en toe gaan ek met Leané in haar kamer in wat ek toe op
die bed gaan sit het met haar.
Mnr Boshof het my teen die bed …
(tussenkoms).
Net so ‘n
bietjie vashou. U sê u gaan terug – toe hy in die gang
afkom gaan u terug met Leané in haar
slaapkamer in” ---
Dis korrek,” and
22.4 Her evidence
during cross-examination when confronted with her statements made to
the police;
“As u hom nie
deur die venster sien kom het nie, hoe is dit dat u hom sien dat hy
die venster uitskop? --- Want hy was alreeds
binne gewees en sy voet
het vasgehaak aan die vensterraam waar hy hande viervoet alreeds
binne in was.
Ek wil vir u dit so
stel, dis ‘n redelike belangrike punt.
Dis reg.
Nou waarom sal u dit
nou vir die Hof ‘n verduideliking gee daaromtrent as u die
geleentheid gehad het om dit in hoofondervraging
te doen en u het
nie? --- Ek het seker maar net nie – ek het nie rêrig ‘n
rede nie. Jy het my gevra of ek hom
gesien inkom het, maar ek het
hom nie gesien inkom nie, ek het gesien hy was alreeds in, sy voete
het vasgehaak en hy was hande
viervoet alreeds op die mat gewees.
Net om dit weer aan
u te verduidelik, nie toe ek u ondervra het nie, toe die aanklaer u
ondervra het, het sy u pertinent gevra,
het u gesien dat hy by die
ruit inkom? --- Nee ek het hom nie gesien by die ruit inkom nie, hy
was alreeds binne en sy voet het
vasgehaak by die ruit en sy hande
was op die mat gewees.
Maar dit was ‘n
baie belangrike punt, hoekom het u dit nie vir die aanklaer gesê
in hoofondervraging nie? --- Maar ek
het seker maar vergeet, ek het
nie – ek het seker maar vergeet, dit is nie aspris gewees nie
En dan in die tweede
verklaring, die een met die klein lettertjies nie, het u ook gesê:
Petrus het aangeklop teen die venster
en hy het die klein venster in
die kamer gebreek en daardeur geklim.” Nou dit is nou weer ‘n
ander weergawe as wat
u in die eerste verklaring en in die hof getuig
het. --- Hm.
Hier sê u dat
hy die venster gebreek het en toe ingeklim het, verduidelik vir die
Hof dit asseblief --- Mag ‘n mens
‘n demonstrasie wys u
Edelagbare?
HOF: Ja u kan. Die
getuie klim uit die getuiebank uit -Toe ek hom gesien het, het ek nie
gesien hy klim in die venster in nie.
Ek het op daardie stadium –
dit was ‘n lang gang, ek het na my dogtertjie toe gegaan want
sy wil begin huil. Toe
ek uitkom wat die deure was nie toe gewees
nie, toe sien ek Mnr Boshof in hierdie posisie staan al, met sy voete
al daar, en toe
hy die laaste – toe hy die laaste skop gee, toe
skop hy die venster uit. Want hy het die venster opgelig, wat dit
was ‘n
warm somers aand, ons het nie gesluit nie. Hy het die
venster opgelig, hy het seker deurgeklim, en ek het hom op daardie
posisie
gesien.”
23. As to the latter
version during cross-examination, that the appellant kicked out the
window as he entered the bedroom it is
important to note that during
her evidence-in-chief, when asked by the prosecutor when she noticed
for the first time that the
window was broken, the complainant’s
answer was “dieselfde aand toe die polisie gery het. Logic
dictates that the
complainant could not have seen the appellant kick
at and break the window if she only noticed the broken window after
the police
had left the house.
24. The view
expressed in the majority judgment, that the appellant supports the
complainant partly in her evidence that she saw
him breaking into the
house, is not correct and the extract of the appellant’s
evidence-in-chief which purportedly supports
this view is not
contextualised. Immediately after the extract of the appellant’s
evidence quoted in paragraph 13 of the
majority judgment the
appellant continues his evidence as follows:
“Goed. --- Ek
het myself toe – nie een van hulle twee het my geantwoord nie.
Desiré het omgedraai en ek kon
gesien het sy stap af in die
gang wat die venster is reg in die middel van die gang of jy kan in
die middel van die gang afsien.
Sy het omgedraai en weggeloop. Ek
kon nie sien wat die ligte was alles af, ek kon nie sien waarna toe
sy loop nie.
U ken die huis, as
sy in die gang afstap, is daar ‘n klomp verskillende kamers
waarna toe sy kan gaan of . . . (tussenkoms).
---Dis korrek ja, sy
kan regs draai dan gaan sy in die badkamer en die stort, daar is twee
badkamers, een wat ‘n badkamer
en ‘n stort en ‘n
toilet is, so sy kon regs gedraai het soontoe of sy kon links gedraai
het in baba se kamer, dan is
daar nog drie ander kamers wat sy kon
ingedraai het.
Goed, so maar u haar
nie gesien nie, sy was net in donker verkwyn. --- Sy, ek kon haar nie
gesien het op daardie stadium, sy het
in die donker ingegaan.”
It was only after
the complainant had walked down the passage away from the bedroom
that the appellant on his version was pulled
through the window by
Brink. His version does therefore not support the version of the
complainant that she saw the appellant
breaking into the house
through the bedroom window.
25. Brink did not
testify and the contradictions in the version of the complainant
cannot simply be disregarded as the magistrate
did. It impacts on
the reliability of the evidence of the complainant as a single
witness. Such evidence should always be treated
with caution and a
conviction will normally follow only if the evidence is substantially
satisfactory in every material respect
or if there is corroboration.
26. The magistrate
instead, concentrated on tearing apart the appellant’s version
and found on probabilities and inferences,
some not even based on
proven facts, that the appellant’s version should be rejected.
For instance she found, based on her
own observation when she warned
Brink on two occasions to be present at court as a witness, that it
was improbable that Brink would
have the strength to pull the
appellant through the window. The magistrate also found it
improbable that once Brink had pulled
the appellant through the
window that he would stand around with arms folded and, other than
invoking profanities, do nothing to
the appellant. The appellant’s
evidence is however that Brink, after pulling him through the window
stood in the doorway
of the bedroom, with arms folded, and said “ons
sal maar sien hoe kom jy hierso uit” which is why, the
appellant explained,
he forced his way past Brink to the child’s
bedroom, since he did not want to be cornered in the main bedroom
with Brink.
27. The appellant’s
version, that he opened the window wider and pushed aside the blinds
to peer inside the room when he was
grabbed around the neck by Brink
and pulled into the room, stands uncontradicted. The complainant
could not deny that he had entered
the house in this fashion. She
was also aware that the appellant had laid a complaint of assault
against Brink. The appellant’s
evidence that he had obtained
certain injuries as a result of being pulled through the window is
supported by photographs which
had been taken of the injuries and a
statement by a police officer upon his arrest. The statement notes
the injuries observed
by the police officer as being on “linker
been onder, regter en linker arm beseer met blou merke.” The
magistrate’s
finding that the injuries were a neutral factor
since it could just as well have been incurred when he squeezed
himself through
the small window is indicative, in my view, of the
fact that she did not apply her mind in assessing the appellant’s
version.
In such a situation the appellant is entitled to the
benefit of the doubt, whether the magistrate subjectively believed
him or
not.
In S v Mafiri
2003(2) SACR 121 (SCA), at paragraph 9 thereof, the Supreme court of
Appeal reiterated the test to be applied in assessing
the explanation
given as:
“there is no
obligation upon an accused person, where the State bears the onus,
“to convince the court”. If his
version is reasonably
true he is entitled to his acquittal even though his explanation is
improbable. A court is not entitled
to convict unless it is
satisfied not only that the explanation is improbable but that beyond
any reasonable doubt it is false.
It is permissible to look at the
probabilities of the case to determine whether the accused’s
version is reasonably possibly
true but whether one subjectively
believes him is not the test. As pointed out in many judgments of
this Court and other courts
the test is whether there is a reasonable
possibility that the accused’s evidence may be true.”
28. I am of the
view, based on the evidence, that the appellant’s version in
this regard is reasonably possibly true and should
be accepted.
29. A further
problem which presents itself in this matter is that of the
magistrate relying on S v Jasat 1997(1) SACR 489 (SCA)
in convicting
the appellant of housebreaking with intent to contravene s 1(1) (a)
of the Trespass Act, No 6 of 1959, and a contravention
thereof as a
competent verdict to the main charge of housebreaking with intent to
commit an offence unknown to the state.
30. Mr Nel for the
appellant correctly argued that S v Jasat has no application in the
present case. In Jasat the appellant who
had been charged with
housebreaking with intent to steal and theft had been convicted of
“housebreaking with intent to trespass
and trespass.”
The appellant in that case argued that since “trespass”
was not recognized as a crime by the
common law, the conviction
thereof should be set aside. The SCA held that the correct
description of the offence Jasat was found
guilty of is
“housebreaking with intent to contravene s 1(1)(a) of the
Trespass Act and the contravention thereof”
and accordingly
substituted the wording of the trial court therewith.
31. The issue in
casu is not whether the offence the appellant was convicted of exists
in law, or whether it is correctly worded,
but whether it is a
competent verdict on a charge of “housebreaking with intent to
commit an offence unknown to the state”.
This is exactly what
is dealt with in S v Konyana en ‘n Ander 1992(1) SASV 451(O),
and which in my view states the correct
position in this regard. In
the Konyana case the two accused were charged in the magistrates
court with housebreaking with intent
to commit an offence to the
prosecutor unknown. They were convicted of housebreaking with intent
to trespass and trespass. On
review it was held that the accused
could be convicted of housebreaking with intent to be on the premises
broken into without permission
in contravention of s 1(1) of the
Trespass Act, but not also of the separate statutory and substative
offence of trespassing.
See also S v M 1989(4) SA 718(T) and S v
Zamisa 1990(1) SASV 22 (N) which are referred to in the Konyana case.
32. I am of the
further view that since, on the evidence, the “entering”
component of housebreaking cannot be found
to be intentional, and
since the appellant cannot be found to have unintentionally entered
the house with the intention of committing
some or other offence
inside, that the appellant can only safely be convicted of the
alternative charge of a contravention of s
1(1)(a) of the Trespass
Act, No 6 of 1959. The evidence has clearly shown that he unlawfully
and intentionally entered upon the
land of the complainant without
her consent. The sentence should be adjusted accordingly.
33. I would
therefore set aside the convictions and sentence and replace it with
a conviction of the alternative charge of contravening
s 1(1)(a) of
the Trespass Act and sentence the appellant to a fine of R1000, 00.
C C WILLIAMS
JUDGE
High Court of
South Africa
On behalf of the
Applicant : Adv I. J NEL
(Elliott, Maris, Wilmans & Hay)
On behalf of the
Respondent: Adv J. S MABASO
(Director Public Prosecutions)