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[2013] ZAGPPHC 18
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Groenewald v S (A 807/11) [2013] ZAGPPHC 18 (4 February 2013)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
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NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT – PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
APPEAL
NO: A 807/11
DATE:04/02/2013
In
the matter between
KAREL
FREDERIK
GROENEWALD
................................................................
Appellant
and
THE
STATE
...........................................................................................................
Respondent
JUDGEMENT
Van
Schalkwyk, A J
[1]
The Appellant was convicted of Assault Common, on 10 June 2010 in the
Magistrate’s Court for the district of Ellisras,
and sentenced
to a fine of R500.00 or 60 (sixty) days imprisonment.
[2]
The Appellant appeals against both conviction and the sentence
imposed on him.
[3]
The salient facts which led to the conviction of the Appellant are as
follows. The complainant a 17 year old boy testified that
on the 12th
January 2010, at Ghorum Farm Leppalala he was instructed by his dad
to call Lennox, one of the farm workers. When he
located Lennox he
noted that Lennox was assisting the Appellant to off-load a fridge
from a vehicle. He called Lennox who responded.
Whilst in the process
of walking away, the appellant came from behind and pushed him away.
The appellant then hit him with his
open hands on the chest in what
he described as a ‘karate move’ causing him to fall
backwards. The appellant came from
behind and threw him over a small
step.
[4]
He experienced a sharp pain to the chest. The appellant was
aggressive. Their relationship was acrimonious as a result of
something
that happened in the past.
[5]
The appellant testified that on the 12th January 2010 Lennox, himself
and his son F, were busy off-loading a fridge from his
bakkie. The
complainant approached them and became aggressive. He called Lennox
and told the appellant that he does not pay Lennox
but they do. A
confrontation ensued. The appellant requested him to leave.
[6]
The appellant requested him to stay out of the adult’s affairs.
The complainant kept advancing and invited the appellant
to hit him.
The appellant then pushed him on the shoulder, turned him around and
said he must leave. The complainant refused to
do so, and approached
the appellant and asked him to ‘slap him’. He told him he
needed more than a ‘klap’
and that he needed education.
[7]
The appellant’s appeal is based on the grounds that the learned
Magistrate erred and misdirected herself by not considering
the
following factors
7.1
By accepting the testimony of a 17 year old single witness as
sufficient evidence above reasonable doubt.
7.2
The said complainant admitted in cross examination that his version
has been fabricated.
7.3
Not to accept the appellant’s version as correct.
7.4
Not to draw an adverse inference by the State’s refusal to
call the two other witnesses.
7.5
By accepting that the appellant acted with intent and not to find
that the appellant’s actions were reasonable under the
circumstances.
[8]
A court of appeal will be hesitant to interfere with the factual
findings and evaluation of the evidence by a trial court (see
R v
Dhlumauyo and another
1948 (2) SA 677
(A) and will only interfere
where the trial court materially misdirects itself insofar as its
factual and credibility findings
are concerned. In S v Francis
1991
(1) SACR 198
(A) at 198j - 199(9) the approach of an appeal court to
findings of fact by a trial court was crisply summarised as follows
‘
The
powers of a court to interfere with the findings of fact of a trial
court are limited. In the absence of any misdirection the
trial
court’s conclusion, including its acceptance of a witness’s
evidence, is presumed to be correct. In order to
succeed on appeal,
the appellant must therefore convince the court of appeal on adequate
grounds that the trial court was wrong
in accepting the witness's
evidence a reasonable doubt will not suffice to justify interference
with its findings. Bearing in mind
the advantage which a trial court
has of seeing, hearing and appraising a witness, it is only in
exceptional cases that the court
of appeal will be entitled to
interfere with a trial court’s evaluation of oral testimony’
[9]
The issue for determination is whether the State established the
guilt of the accused beyond reasonable doubt.
[10]
It is trite law that in criminal proceedings, the State must prove
its case beyond reasonable doubt. In Olawale v S
[2010] 1 All SA 451
(SCA) at paragraph 13, the court held that ‘a mere
preponderance of probabilities is not enough. Equally trite is the
observation
that, in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused’s
version is true. If the accused’s version is
reasonably possibly true in substance, the court must decide the
matter on the
acceptance of that version. Of course it is permissible
to test the accused’s version against the inherent
probabilities.
But it cannot be rejected merely because it is
improbable; it can only be rejected on the basis of inherent
probabilities if it
can be said to be so improbable that it cannot
reasonably possibly be true'.
[11]
The State’s case rested on the evidence of a single witness,
being the complainant, a 17 year old male. In evaluating
the evidence
of a single witness, regard must be had to the probabilities and
improbabilities of the evidence. In Olawale v S
[2010] 1 All SA 451
(SCA) at paragraph 14, the court held that11In evaluating the
evidence against the appellant, one must look at the reliability
and
credibility of the witnesses, consider if any of them had a motive to
falsely implicate the appellant, and further look at
the
probabilities of the State’s version’. And in paragraph
15 thereof The evidence of a single witness has to be clear
and
satisfactory in every material respect. The evidence has to be
treated with caution. A court can accept the evidence of a single
witness if it is satisfied that it is truthful beyond reasonable
doubt.
[12]
I now turn to the evaluation of the complainant’s evidence. The
complainant’s evidence-in-chief, gave the impression
to the
court a quo that he did nothing wrong on the day in question, and
that he merely went to call Lenox, on instruction from
his father,
and that thereafter, he walked away when the appellant came from
behind and assaulted him. Under cross examination,
the complainant
conceded that the appellant had responded that Lennox was helping him
and that he told the appellant that Lennox
does not work for him, he
works for us and we pay him. He also conceded that when asked by the
appellant to leave, he refused to
do so. This confirms the
appellant’s version that the complainant was provocative right
from the onset.
[13]
The complainant’s version ought not to have been accepted
without considering the history of acrimony and trouble between
the
parties. One cannot deny the fact that it is probable that the
complainant may have fabricated his story to incriminate the
appellant. He certainly had a motive to do so, given the acrimonious
relationship which existed between the appellant and the family
of
the complainant. From the record it is clear that the complainant was
embroiled in an incident with the appellant previously,
when he
allegedly turned off the appellant’s water.
[14]
The complainant’s evidence cries out for corroboration. One has
to make an adverse finding by the State for not calling
Lennox or
even Fritz as witnesses. The State’s explanation that it did
not call Lennox because he no longer worked at the
farm is
unsatisfactory and the State furnished no explanation for his
unavailability. The State’s failure to call Fritz,
the son of
the appellant is also unclear and without any explanation. The onus
does not rest on the appellant to prove his case,
therefore it was
not his duty to call his son Fritz to give evidence.
[15]
The appellant’s version, in my view, is more reasonably
possibly true, and that the appellant had requested the complainant
to stay out of the adult’s affairs, the complainant responded
and challenged the appellant to ‘klap’ him. The
appellant’s version that he responded by suggesting that the
complainant needed more than that, and that he needs an education,
and that he grabbed the complainant by the shoulders, turned him
around and pushed him away, seems more probable.
[16]
The court misdirected itself by accepting the evidence of the
complainant, a single witness, as satisfactory and reliable in
light
of the shortcomings in the complainant’s evidence, and further
that there were no objective facts which corroborates
the
complainant’s version with regard to the actual alleged
assault, despite other witnesses being present on the day of
the
incident. The trial court failed to approach the evidence of the
complainant with a sufficient degree of caution, and erred
in
concluding that the complainant’s evidence was satisfactory in
every material respect.
[17]
The appellant’s version, in my view can be said to be
reasonably possibly true, and I am not satisfied that the guilt
of
the appellant has been proved beyond reasonable doubt. In the light
therefore, the appellant’s conviction and sentence
cannot
stand.
[18]
In the result, the following order is made
(a)
The appeal succeeds on conviction and sentence.
(b)
The conviction and sentence are set aside.
(c)
The appellant is found not guilty and discharged.
Van
Schalkwyk AJ
I
agree and it is so ordered.
Pretorius
J