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[2014] ZANCHC 30
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Van Vuuren v S (CA&R 64/14) [2014] ZANCHC 30 (17 September 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
[NORTHERN CAPE HIGH
COURT DIVISION, KIMBERLEY]
CASE
NO: CA&R 64/14
In
the matter between
:
DAVID CORNELIUS VAN
VUUREN
APPELLANT
AND
THE
STATE
RESPONDENT
Coram: Lacock J
et
Lever AJ
JUDGMENT
Lever AJ,
1.
The
appellant in this matter was convicted in the magistrate’s
court for the District of Kimberley on the 28
th
January 2014 on a charge of
crimen
injuria
.
The appellant has instituted this appeal against the said conviction
alone.
2.
The
charge on which the appellant was convicted was that on or about the
11
th
July 2012 and at or near Allan Street in the District of Kimberley he
unlawfully and intentionally injured, insulted and impaired
the
dignity of the complainant by calling him “a fokken kaffir and
swart kaffir poes”. As a consequence of this conviction,
the
appellant was sentenced to a fine of R1000.00 or 6 months
imprisonment, all of which was suspended for a period of 5 years
on
condition that the appellant was not convicted of
crimen
injuria
committed during the period of such suspension.
3.
The
grounds of appeal filed on behalf of the appellant in his Notice of
Application for Leave to Appeal dated 17
th
February 2014 are set out as follows:
“
The
trial court erred in that:
3.1.
It
did not find that the States witnesses contradicted each other in
material respects;
3.2.
It
found that the State had proved its case beyond a reasonable doubt;
3.3.
It
found that the State witnesses were credible;
3.4.
It
placed too much weight on the fact that the complainant would not
without reason lay a charge against the appellant;
3.5.
It
did not find that under the circumstances the appellant’s
version could reasonably possibly be true; and
3.6.
It
did not find that the appellant’s evidence was false and
untruthful. (SIC)”
4.
In
the Heads of Argument that were filled on behalf of the appellant,
the approach was that the substance of the aforesaid grounds
of
appeal could be summarised into three broad grounds of appeal. These
three broad grounds of appeal were set out as follows:
4.1.
That
the Honourable trial court did not take due cognisance of the
material contradictions in the evidence adduced on behalf of
the
respondent;
4.2.
That
the Honourable trial court placed an onus on the appellant to explain
why the complainant would lay a false charge against
him; and
4.3.
That
the Honourable trial court dismissed the appellant’s version,
on the basis that it could not reasonably possibly be true,
without
having a valid justification for doing so.
5.
The
appellant’s plea and his version as it appears from the record
place him on the scene on the date and time in question.
It is also
common cause that the incident took place in the early afternoon at
approximately 2:30pm. In summary his version is
that he turned into
Allan Street and at some point near the intersection a vehicle
blocked the street. Appellant hooted and made
a hand gesture for that
vehicle to move along.
6.
Originally,
on appellant’s behalf, it was put to the State witnesses that
it was physically impossible for the appellant to
stop his vehicle
next to that of the complainant because of an island in the middle of
the road. Then in his evidence the appellant
testified where he had
stopped behind the complainant’s vehicle the last point of this
island was on his right hand side
next to where he sat in the
driver’s seat of his vehicle, but that there was a solid white
line that extended from the end
of this island for a distance down
the road. Appellant maintained that he would not cross this solid
white line as he was a municipal
traffic official. It appeared
however, that his duties were administrative. Later on appellant
added another reason for not being
able to draw level with the
complainant’s vehicle, being the presence of oncoming traffic.
7.
In
short, and for purposes of his plea, appellant places in dispute the
words complained of and also places in dispute having the
opportunity
to address such injurious words to the complainant, in that on his
version he could not draw level with the complainant’s
vehicle.
8.
The
complainant, Mr Lenohe and his colleague Ms De Wee are both members
of the SAPS. As indicated earlier, the date, time and place
were not
in issue. In summary, the State’s case is that complainant was
waiting for a car to leave a parking bay so that
he could parallel
park, the appellant hooted, drew level with the complainant’s
vehicle and used the words complained of.
Appellant then drove away
and complainant noted the registration number of appellant’s
vehicle. Thereafter, traced the appellant
and laid a charge.
9.
Turning
to the first ground of appeal pursued on the appellant’s behalf
namely, that there were material contradictions in
the evidence
adduced on behalf of the respondent.
10.
The
first issue raised on behalf of the appellant was that complainant
testified that appellant approached him, conducted himself
in the
manner complained of and thereafter walked away. Whereas later on in
complainant’s evidence he makes it clear appellant,
in his
vehicle, drew level with complainant who was in his own vehicle
uttered the words complained of and then appellant drove
away. If one
looks at complainant’s evidence as a whole and considers it in
its proper context, it is clear that the first
statement is not the
complainant’s version. Viewed in this context the most likely
explanation for this statement is that
it was mistranslated by the
interpreter. This conclusion is supported by the way the prosecutor
handles the evidence which appears
on the next page of the record a
few paragraphs further on. Where the prosecutor says: “Yes, you
testified that after he
uttered the words, he drove away. You can
proceed from there?”
11.
The
next issue taken up on behalf of the appellant is the complainant’s
version of where the second state witness was when
the words
complained of were used. Again, considering the evidence as a whole
and in its proper context, none of the differences
referred to can be
considered material. In my view it leaves the inescapable impression
that the appellant is grasping at straws.
12.
It
was then submitted on appellant’s behalf that there were
material differences between the injurious words alleged in the
charge sheet and the complainant’s evidence of the words used.
The words contained in the charge sheet have been set out
in
paragraph 2 above. The complainant’s evidence of the words used
are contained in two passages of the transcript, which
read as
follows: Firstly, “Laat jy ry, in Afrikaans, laat jy ry. After
saying that he then said: jou swart kafferpoes, laat
jy gaan, jy
kannie soos ʼn bobbejaan hier kom parker nie. Ek skryf jou dood.
Ek skryf jou in jou moer in.” Then secondly,
“As I was
still waiting for the other vehicle to drive out of the parking lot.
Whilst I was still waiting there this guy
came and parked his vehicle
next to mine and he uttered those ugly words that I am a kaffer and I
am a baboon and he is a state
servant. Then I am also a state
servant. I do not think a state servant can use those words.”
13.
In
the charge sheet and in the complainant’s evidence the term
“kaffer” is related to a particular racial group.
We
cannot divorce ourselves from the historical context in which the
term kaffer was used in the past. In this historical context
the term
itself is injurious. It is the core ‘sting’ in the charge
sheet and in the evidence which the complainant
gave. Viewed in this
context the differences between the charge sheet and the evidence
constitute nothing more than further detail.
In my view such
differences are not material.
14.
Then
it was submitted on behalf of the appellant that Ms De Wee’s
version of the injurious statement is also different. Her
version was
as follows: “
As
jy nie nou hierdie fokken kar ry nie dan skryf ek jou in jou moer in
en wat hy ook gesê het terseldetyd in een asem: jou
fokken
swart kaffer. Dit is die tyd wat Thabang hy wou uitgeklim het en at
that time het die meneer weggery.”
15.
Again,
the core ‘sting’ is the same. The differences are detail.
The court
a
quo
dealt with these differences and concluded that this merely showed
that the complainant and Ms De Wee did not collude on the evidence
that they placed before the court
a
quo
.
I respectfully agree with this conclusion. In the present
circumstances I am of the view that nothing further can be read into
these differences.
16.
Then
the issue of Ms De Wee’s evidence in relation to the windows of
the respective vehicles being open or closed at the material
time and
the probability of complainant and Ms De Wee being in a position to
hear the injurious remarks. The striking thing about
this line of
argument is that this was never taken up with the complainant. In my
view if the appellant wished to raise it and
rely on it, it ought to
have been taken up with the complainant as well. Even if it meant
that the appellant would have had to
bring an application to recall
the complainant in order to do so. The only version that was put to
the complainant was that it
was impossible due to the island and the
width of the road for the appellant to stop next to the complainant.
17.
Ms
De Wee indicated that the whole incident took place too quickly for
her to observe the details relating to the windows. From
the record,
the impression Ms De Wee gives is of an honest witness who did not
really observe these details and cannot really say
what the position
was in regard to the windows being open or closed, but she heard what
she heard.
18.
Turning
to the second ground of appeal pursued by the appellant, namely that
the court
a
quo
placed an onus on the accused to show what motive the complainant
would have had in laying a charge against the appellant, if it
was
not true.
19.
Reading
the learned trial magistrate’s judgment as a whole, I believe
that this was just an observation he made in passing.
In making this
remark I do not believe the learned trial magistrate expected the
appellant to lead evidence or show that the complainant
had a motive
to get him into trouble. It is clear from the trial court’s
judgment itself that the onus was correctly placed
on the State. In
my view the learned trial magistrate’s substantive reason for
his finding was simply that he did not believe
that the appellant’s
version could reasonably possibly be true.
20.
The
third ground of appeal pursued by the appellant was that the court
a
quo
dismissed
the appellant’s version on the basis that it could not
reasonably possibly be true, without having a valid basis
for doing
so.
21.
In
my view there are at least three compelling reasons for dismissing
the appellant’s version as not being reasonably possibly
true.
22.
Firstly,
the contention that the appellant could not pass the complainant’s
vehicle. It was put to the complainant and Ms
De Wee that it was
impossible to have the appellant’s vehicle draw level with the
complainant’s vehicle at the point
where the incident took
place, due to the presence of the island and the narrowness of the
relevant lane in the road.
23.
After
the State’s evidence and before the appellant’s evidence,
an inspection
in
loco
was conducted at the relevant scene of the incident. The appellant
then gave evidence. In his evidence in chief he was asked would
it be
possible to pass the vehicle blocking the road by passing on the
right hand side. To which he replies: “Nee, edelagbare
die pad
is te nou en daar is baie vortuie van voor af. Dit sou baie dwaas
wees om verby te gaan op daardie nou gedeelte.”
Then in answer
to a further question by his attorney, appellant states: “Aan
my regterkant was die eindpunt van die eiland,
daardie vlugheuwel en
net na dit is die sperstreep.” Further on appellant states that
it is against the law to cross the
solid white line that starts at
the end of the island that was on his right hand side as he sat in
the drivers seat of his vehicle.
24.
One
must remember the genesis of this version used by the appellant. It
was put to both the complainant and Ms De Wee when cross-examined
by
the appellant’s attorney that it would be impossible for
appellant’s vehicle to draw level with the complainant’s
vehicle, due to the narrowness of the relevant lane in the road and
the physical presence of the island made of concrete kerbstones.
25.
Then
after the inspection
in
loco
this is watered down somewhat by the appellant’s own evidence.
The end point of the island is now next to him on his right
hand side
as he sits in the driver’s seat of his vehicle. Now the only
barrier to appellant in his vehicle drawing level
with the
complainant’s vehicle is the solid white line. This is an
entirely different scenario to that presented to both
State
witnesses. Furthermore, the issue of oncoming traffic preventing the
appellant in his vehicle from drawing level with the
complainant’s
vehicle was never put to either State witness.
26.
Secondly,
the complainant and the appellant got together before the trial with
the consent of the prosecutor to try and see if they
could reconcile
and pre-empt the matter from going to trial. Evidence was led as to
what transpired during this discussion. In
his evidence in chief and
in response to a question from his attorney, the appellant describes
what transpired at this discussion
as follows: “Edelagbare ons
het gepraat en ek het pertinent aan hom gesê dat ek kan dit nie
glo dat ek dit sou gesê
het nie en ek kan dit nie onthou dat ek
sulke woorde gebruik het nie, maar indien ek – as hy dit
afgelei het van my af vra
ek hom om verskoning, maar dit is nie
woorde wat ek sou geuiter het teenoor hom nie.”
27.
When
asked directly by his attorney whether he used the words or not, he
replies: “Edelagbare, ek is ʼn baie senior person
in die
verkeer in uniform kan ek nie myself indink dat ek ooit so woorde sal
uiter nie. Dit is vir my net, dit is nie hoe ek as
person is nie.”
What is noteworthy when asked this question directly in this manner
is that there is no flat out and emphatic
denial. The appellant, as
in the conditional apology set out in the preceding paragraph, seems
to rely on a lapse in memory. Then
by contrast the appellant
maintains that he is able to remember other details. I cannot escape
the conclusion that the appellant’s
lapses in memory are
self-serving.
28.
Thirdly,
there is the issue of how the complainant got the appellant’s
registration number if the appellant did not draw level
and
subsequently pass the complainant in the manner described by the
complainant. The complainant’s description of how he
obtained
the said registration number is simple and logical and fits in
comfortably with his version. By contrast the appellant’s
version is improbable. Appellant states that he cannot recall if
complainant used the now vacant parking bay and that he passed
complainant in that manner. This would be unlikely because the reason
why complainant needed a parking bay in the first place was
to wait
for Ms De Wee. Ms De Wee was in the car before complainant could
park. In these circumstances complainant would simply
have driven
off. There are of course other possibilities, but neither the trial
court nor this court are required to engage in
speculation when
considering whether the state has proved its case beyond a reasonable
doubt.
[1]
In my opinion these possibilities would, in any event, appear to be
too remote for the court to consider. It would have required
the
complainant to double back and speed in order to catch up with
appellant or it would have required him to pull over further
up the
road and risk either another incident or the appellant turning onto
another street before passing the complainant.
29.
Having
regard to the reasons set out above, the inescapable conclusion is
that the appeal must fail and it is accordingly dismissed.
L.G
LEVER
ACTING JUDGE
I concur.
H
J LACOCK
JUDGE
Dates of
hearing
:
11 August 2014
Date of
Judgment
: 21
November 2014
APPEARANCES:
Counsel:
For the
Appellant:
Adv I.J
Nel
For the
Respondent:
Adv K.M. Kgatwe
(Director Public Prosecutions)
[1]
S v Glegg
1973 (1) SA 34
(AD) at 38H – 39A