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[2013] ZAGPPHC 496
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Appolus v S (A645/12) [2013] ZAGPPHC 496 (11 November 2013)
REPUBLIC OF SOUTH
AFRICA.
NORTH GAUTENG
HIGH COURT, PRETORIA
CASE
NO: A645/12
DATE:
11 NOVEMBER 2013
In the matter
between:
THOMAS
APPOLUS
...................................................................
Appellant
And
THE
STATE
.............................................................................
Respondent
JUDGMENT
Ismail J:
[1] The appellant
was charged in the Bloemhof magistrates court on two counts, namely
assault and the offence of resisting arrest.
The allegations were
that on the 13 September 2008 he assaulted constable William
Montshiwagae ,that he resisted arrest and that
he willfully
interfered with the said constable and other members to wit by
fighting, kicking and insulting them.
[2] The accused was
initially represented during the trial. At some stage his legal
representative did not appear and the appellant
elected to conduct
his own defense . He was appraised by the presiding magistrate
regarding obtaining legal representation however
he elected to
conduct his own matter. It must be pointed out that the accused was a
public prosecutor employed at the Molopo regional
court.
[3] The accused was
convicted on both counts and he was sentenced to:
“twelve months
imprisonment, which is wholly suspended for a period of five years on
condition that he was not convicted of
both assault with intend(sic)
to cause grievous bodily harm committed during the period of
suspension and accused is not convicted
of the offence resisting
arrest committed during the period of suspension. ”
[4] A summary of the
evidence presented in the court a quo follows hereunder.
Several policemen
including constable Montsowagae, [the complainant], testified during
the prosecution’s case. His evidence
in short was that he was
contacted by radio regarding an incident which occurred at Social
Services. They proceeded to Sussex Building,
and outside in the
parking area, they met a security guard in uniform. As the
complainant approached the security guard in order
to establish what
had occurred he noticed a group of men standing nearby. One of the
people, who he identified as the accused,
remarked “ that they
were stupid and that they were busy misusing the funds of the state”.
The complainant in turn
remarked that if he wanted something the
appellant he would ask him. He also told the appellant that he must
stop interfering with
his duties as he was there to speak to the
security guard. Whilst attempting to speak to the security guard the
appellant came
between them. The complainant then realized that the
appellant intended to fight. The appellant thereafter stretched his
hand in
order to assault him but warded off the blow and managed to
avoid it.
A struggle ensued
and the two of them fell to the ground. Other policemen came to the
complainant’s assistance in order to
handcuff the appellant.
Whilst on the ground he repeatedly kicked at the complainant. One of
the policemen used pepper spray in
order to subdue the appellant and
he was eventually handcuffed. They tried to place him in the police
van and he resisted until
he was placed into the back thereof by
force.
The second witness,
Mr Mogotla, also a police officer testified. His evidence was similar
to that of the complainant and he related
how the appellant insulted
them by stating that they were useless and merely mis¬using their
taxes. He testified that the complainant
spoke to one, Kagiso who
told complainant how one of the persons from the group of appellant
and his companions fought with him.
Kagiso was the person who
apparently telephoned the police to come the scene.
[5] The security
guard who constable Montsowagae approached at the scene also gave
evidence during the trial. He confirmed that
there was a conversation
relating to tenders. Although the context of the tender conversation
differs from that which the appellant
raised. According to the
appellant the police officers stated that they had big heads as they
had tenders in Bloemhof whereas they
were from Vryburg, and were not
residents of Bloemhof.
[6] The appellant
testified and his version was that approximately 12 policemen arrived
at the scene in at least five vehicles.
He and his companions were at
the scene in order to investigate a labour dispute and a security
problem at the premises. They had
received a report from an
investigator and they were there to investigate the report. When they
arrived at the premises one of
his associates approached Mr Kagiso
and informed him that he had no right to be on the premises as he was
not a recognized trade
union representative.
His companion, Mr
Moseke pushed Kagiso once in order for him to leave the premises and
this set in motion the call which was made
to the police. According
to him the police were violent and aggressive (record p179). He
stated that they started uttering derogatory
words to the effect
“ you shitty
boys of the directors of the company from Vryburg... you are being
made big headed by the monies that you enjoy
from the tenders... you
get in Bloemhof”
According to the
appellant the police thereafter stated:
“ we will show
you that your tender is terminated and we will deal with you we are
the police officers of Bloemhof. Constable
Montswagae thereafter
approached him and commented that the appellant was stupid or a fool
as he was wearing a pull over on top
of a T-shirt. He was told that
he was complaining and the word ’voetsek’ was used. The
appellant testified that in
order to defend his reputation. He in
turn also uttered the word voetsek to the policeman.
[7] Thereafter
constable Mampo told him that he could not speak to a police officer
like that and grabbed him with his pull over,
whilst Montswagae and
Mokhobo grabbed him by his arms. He described how he was thrown to
the ground and kicked whilst lying down.
He testified how he was
placed into the police van.
[8] This in brief is
the backdrop of the evidence which was presented during the trial. It
must not be construed that what appears
above is the evidence in
totality. It is merely a summary to understand the conclusions which
this court would arrive at.
[9] There were two
conflicting versions of events presented to the trial court. It is
trite that where there are two mutually destructive
versions the
court must looks at the onus bearing party and ask itself whether it
has proved its case beyond reasonable doubt.
See S v Saban and ‘n
Andere
1992 (1) SACR 199
(A)
The following were
common cause facts:
(a) the police were
called to the scene by way of a radio message transmitted to them;
(b) they were told
to contact a security guard at the premises
(c) Mr Kagiso phoned
the police to come to the scene;
(d) Words were
exchanged at the scene regarding tenders and some -thing ignited the
situation which resulted in the appellants arrest.
(e) The appellant
was the only person arrested that evening.
(f) The policemen
did not know the appellant prior to that night.
(g) None of the
appellants companions were called to testify at the trial
[10] The trial court
evaluated the evidence in its totality and arrived at the decision it
did. The thrust of the appellant’s
argument seems to revolve
around the issue of the contradictions in the state’s case and
the fact that the court drew an
adverse inference in the failure of
the appellant not to call witnesses. The appellant’s notice of
appeal appears at pages
455- 504 of the record. It sets out the
various differences in what the three witnesses who testified on
behalf of the prosecution
stated regarding the incident, such as the
blow which he struck constable Montsowagae. In this regard
Montsowagae stated that he
warded off the attack whereas constable
Mokgotla gave a different version. Furthermore the latter also varied
his evidence on that
score.
[11] It has been
stated in many decisions that contradictions per se are not in
themselves sufficient to render a witness’
evidence
unacceptable. One must look at the nature and seriousness of the
contradiction and ask oneself whether the contradiction
is a material
contradiction which affects the credibility of the witness’
evidence. In this regard the court in S v Mkohle
1991 (1) SACR 95
(A)
where Nestadt JA held:
‘that
contradictions per se do not lead to the rejection of the witnesses
evidence; they simply may be indicative of an error.
Not every error
made by a witness affects his credibility; in each case the trier of
fact has to make an evaluation, taking into
effect the nature of the
contradictions; their number and importance, and their bearing on
other parts of the witnesses evidence.
”
See also : S v
Oosthuizen
1982 (3) SA 571
(T) at 576 B-C and 576 G-H;
In S v Bruiners en
Andere
1998 (2) SACR 432(SE)
at 439 c-e reference is made to S v
Safatsa and Others
1988 (1) SA 868
(A) where Botha JA at 890F in
determining the differences in the evidence of witnesses stated:
“ The trial
court considered the alleged conflict fully and carefully as appears
from the judgment of the trial Judge, and
found that it did not
exist. In my view the reasoning of the trial court is unassailable.
The fallacy in the argument of the accused
is that it presupposes
that either or both of the witnesses must be untruthful or unreliable
simply because their observations
did not coincide. Such an approach
to the evidence is unsound’’
[12] On the totally
of the evidence the witness, Lintikele Meholoana, the security guard
is an independent witness who does not
have to further the interest
the police officers or that of the accused. He confirmed that there
was talk offenders at the premises
notwithstanding a denial by the
officers. Mr Mehooana did not see the appellant striking Montsowagae.
He testified
however, that he heard the latter telling the other police officers
at the scene of the blow. Furthermore, he also
corroborated the
complainant’s version that the appellant came in between them
when constable Montsowagae wanted to speak
to him.
[13] The fact that
there are differences in the evidence of the various witnesses is to
be expected, considering that there were
several people at the
scene. On the police version there were at least 11 people, namely
5-6 policemen; four people consisting
of the appellant’s group;
Mr Meholoana and Mr Kagiso.
On the appellant’s
version there were at least 6 more policemen. This was not a static
scene as people were moving around
and for that reason one can expect
people to see certain things whilst others may not as their attention
may have been focused
elsewhere.
[14] Having reads
through this lengthy record and having seen the differences in the
evidence of witnesses on certain aspects I
am nevertheless satisfied
that the trial court appraised the evidence properly and on sound
legal precepts. The magistrate evaluated
the evidence and gave
reasons for his findings where he accepted it and did exactly the
same where he rejected the evidence. I
cannot find any misdirection
in his evaluation of the law nor in his evaluation of the facts
presented to him.
[15] The trial court
at paginated page 341 [lines 24/5] of the record said:
“ it would be
expected from him to call somebody to have corroborated his
evidence”. Whilst it is so that no onus rests
on the appellant
to convince the court of the truth of his version he had witnesses
available. The matter had been postponed for
that reason. He decided
to close his case without calling them. I am aware that an
explanation was tendered why they were not
at court at the time,
however the appellant could have sought a postponement in order to
secure their evidence at a later date.
This begs the question that if
the witnesses had testified and corroborated his version sufficient
doubt may have been created
to secure an acquittal.
[16] In evaluating
the evidence one must consider whether the police concocted a story
to arrest the appellant for no reason. The
police were called to the
scene by Kagiso who was confronted by the appellant’s
colleague. On the appellant’s own version
he raised the issue
about wastage of tax payer’s money in the light of the number
of police who attended the scene. Both
the security guard and
constable Montsowagae testified that it was the appellant who came
between them. If the police intended
to falsely implicate the accused
the easiest thing for them to have done was to say that the appellant
threw a punch at the complainant
and hit him on the jaw. However the
evidence of various witnesses on this aspect is not identical. This
clearly indicates that
the evidence was not manufactured or conspired
between the policemen. Furthermore the security guard who did not
actually see the
appellant hit out at Montsowagae, testified that at
the scene he heard them saying that the appellant had hit a
policeman.
[17] The appellant
in his latest heads of arguments dated 24 October 2013 raised a
Constitutional point. The point being that the
respondent in its
heads of argument changed the sequence of the charges. During the
trial the charge of assault was count 1 and
the offence of resisting
arrest was count 2. The respondent changed the order of the two
counts in its heads of argument.
The appellant
submitted before us that he was thereby prejudiced by the changing of
sequence of the charges, in the respondent’s
heads of argument.
Mr Fourie , on behalf of the respondent, referred to pages 4 and 5 of
the record where the charges were as stipulated.
When the appellant
pleaded in the court a quo the charges were count 1 assault and count
2 resisting arrest.
[18] I agree with
the appellant’s submission that the right to a fair trial as
guaranteed by the Constitution does not only
extend to the trial
proceedings but also to the appeal proceedings. The all important
question which needs to be answered is how
was the appellant
prejudiced as a result of the charges having been changed. The
respondent’s heads of arguments are not
matters of evidence,
but rather as the name suggest arguments regarding the trial.
Furthermore, if count 2 was dependent upon the
state succeeding in
securing a conviction if it had proven count 1 it might be a
different matter.
It is trite that it
is not every irregularity which renders a trial unfair.
Such an irregularity
would have to prejudice a party in order to render a trial unfair.
See S May
2005 (2) SACR 33
(SCA) at para [7] and S v CT
2012
(2) SACR 517
(GNP).
[19] The appellant
also raised the issue that the magistrate drew an adverse inference
from his failure in calling witnesses to
testify. The issue of
drawing an adverse inference was raised in the matter of S v Texiera
1980 (3) SA 755
(A). If a party has several witnesses which would
testify on an aspect and it merely calls one or two witnesses to
testify without
calling the other witnesses, does this mean that an
adverse inference should be drawn to the effect the witnesses who
were not
called would have testified to the contrary. Clearly not.
The situation in this matter was that the appellant who was
represented
asked that the matter be postponed in order to call
witnesses. When the matter resumed the appellant’s attorney no
longer
appeared on his behalf.
[20] At that stage
he informed the court that the witnesses could not attend court as
their employer deployed them to duties elsewhere
and that they were
not available. The appellant closed his case. He could have requested
a postponement to secure those witnesses
at a later date, however he
closed his case without calling them or at the least seeking a
postponement.
Under these
circumstances the magistrate was at the least entitled to take this
aspect into account.
[21] It must also be
mentioned that there was no notice of appeal which was filed in this
appeal. Instead there were heads of arguments
which were filed and
these appear at pages .... of the record. In the course of the appeal
we had to plough through the heads of
argument and determine what the
real reasons for the appeal on conviction were. This aspect was
raised with the appellant during
argument before us and he was
invited to address us on any aspect(s) which we may not have covered.
[22] The appeal was
only in respect of conviction and neither the appellant nor Mr Fourie
, on behalf of the respondent, addressed
us on sentence.
[23] I am satisfied
that the conviction in the court a quo was appropriate and for that
reason I would dismiss the appeal in respect
of conviction.
M H E Ismail
Judge of the High Court
I agree
M Masipa Judge of
the High Court
Appearances:
For the
Appellant: In person
For the
Respondent: Adv Fourie, The Director of Public Prosecutions
Pretoria.
Date of
Hearing: 1 November 2013
Date of
judgment: 11 November 2013.