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[2013] ZANCHC 1
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S v Lombaard (CA&R 62/12) [2013] ZANCHC 1 (8 February 2013)
7
IN
THE COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO: CA&R 62/12
Heard
on: 26/11/2012
Delivered
on: 08/02/2013
In
the matter between
FRANCOIS
ARNOLDUS LOMBAARD
............................................................
APPELLANT
AND
THE
STATE
..................................................................................................
RESPONDENT
Coram:
PAKATI J et COETZEE AJ
JUDGMENT ON APPEAL
PAKATI
J
The Appellant, Francois
ArnoldusLombaard, was charged in the Magistrates Court, Kuruman,
with two counts. In count 1 he waschargedwith
Crimeninjuria
and in count 2, he faced a charge of assault with intent to do
grievous bodily harm. He pleaded not guilty to both charges. He
was
convicted on 30 March 2012 on both counts. The charges were treated
as one for purposes of sentence. He was sentenced to
pay a fine of
R1500.00 or in default of payment to undergo three months
imprisonment.The Magistrate refused leave to appeal against
his
convictions. This Court granted leave to appeal against the
convictions.
On 06 January 2011the
appellant, the Manager of Price City Shopin Kuruman, had parked his
bakkie in a loading zone in front of
the shop.The complainant, Mr
Albert Moseke,was in the company of his cousin (name undisclosed)in
front of the shop close to the
appellant’s vehicle. He had
placed his foot againsta pole situated in front of the shop. The
appellantapproached him from
behind and pushed him.His foot that was
leaning against the pole got twisted and was injured as a result.
The appellant uttered
somederogatory words at him. The complainant
asked why he insulted him. In response the appellant intimated that
he had scratched
his vehicle and should move away.An argument
ensued.The appellant reached for his car and took out pepper spray
andsprayed the
complainant in the eyes causing him to betreated in
hospital.
The complainant disputed
that he was leaning or sat on top of the appellant’s vehicle,
let alone scratching it. He testified
that before theappellant
pepper-sprayed him he did not warn him.He intimated that when he
confronted the appellant, the appellant
had nothing in his hands. He
disputed that he prevented the appellant from closing the door of
his vehicle.
The appellanttestified
that on the day in question he was on his way to the bank to deposit
some money.He noticed the complainant
in front of the shopsitting on
the bumper of his vehicle scratching it. He asked him politely to
move away. The complainant in
response screamed at him. The
appellant opened the door of his bakkie.At that stage the
complainant prevented him from closing
the said door. He thought
that the complainant was about torob him. He warned him twice to
move away from him. When the complainant
did not heed the warning he
pepper-sprayedhim.He denied that he uttered any derogatory words.
It was common cause that
on the day of the incident the appellant and the complainant had an
altercation. It was not in dispute
that when the appellant came out
of the shop he asked the complainant why he was scratching his car.
The complainant’sversion
that he did nothing to offend the
appellant lacks conviction in the circumstances.His conduct was
themain reason why the appellant
approached him and insulted him.The
appellant on the other hand testified that he spoke politely to the
complainant and told
him to move away from his vehicle even though
he saw him sitting on top of the bumper and scratching it. That
would be strange
reaction by a person whose property is being
damaged.
The principle on appeal
is that in the absence of a material misdirection by the Court
a
quo
, its findings of fact are presumed to be correct and will
only be disregarded or disturbed if the evidence shows them to be
clearly
wrong. See
R v DHLUMAYO AND ANOTHER
1948 (2) SA 677
(A).
In convicting the
appellant the magistrate noted that the State and the
defence
versionsare mutually destructive. In his judgment he said: “
I
cannot find that there’s evidence on record that there was an
attack or an attack eminent and or threatened and or that
his life
was in danger as to resort to the actions that transpired on this
particular day.”
The appellant said: ‘
Dinkendenouhierdie
is moontlik ‘n rooftog’
without justifying why he
thought the complainant was about to rob him. He testified that the
complainant was standing in his
way such that he was unable to close
the door. The following transpired during cross examination:
“
PP: So if I
understand you very correctly you opened the door and then instead of
yourself getting into the door, this complainant
was standing or
somewhere there?
Accused: I was trying
to get in the car, by that time. When I opened, when you open a door,
you climb in. I was trying to do that,
when I was trying, I was
already halfway in the vehicle this guy - I could not get the door
[closed], so what am I supposed to
do, give him [the] money, hey take
this and go.
PP: Was he handling
the door so that you could not close the door?
Accused: No he was
standing in the way.
PP So you couldn’t
even pull the door and see as to what his response will be?
Accused: I could.
PP: So why didn’t
you do it?
Accused: I do not want
to hurt that person. That’s why I gave him warning after
warning.
PP: But you ended up
hurting him by pepper spraying him?
Accused: That was last
defence
.
PP: You could just
have closed the door and see what was going to happen?
Accused: No I couldn’t
have closed the door.
PP: Were you seated by
then when you wanted to close the door?
Accused: I was still
halfway in the vehicle, I tell you that.
PP: So how were you
going to be able to close the door whilst you were still half way,
you were not inside the car?
Accused: If this
person is preventing me from getting in the car, then obviously it’s
not easy for me to get in the vehicle.”
If the appellant was
trying to get into the vehicle and was already halfway or partly in
there is no way that the complainant
could have prevented him from
getting in without even touching him. On the other hand if the
complainant prevented him from closing
the door it means he was
already inside and therefore could not have prevented him from
getting in at the same time. It is improbable
that the appellant did
not want to hurt the complainant, who on his version, tried to rob
him. This version came out for the
first time in his
evidence-in-chief.It was never mentioned in his plea explanation nor
was this version put to the complainant
under cross-examination. He
also did not report it to the police.
Mr Manswho appeared for
the appellant during the trial put to the complainant that the
appellant had the money in his hands. The
appellant contradicted
this statement when he stated that the money was in his pocket.
The proper approach that
should be adopted by a magistrate in dealing with conflicting
versions was explained by HeherAJA in
S v CHABALALA2003 (1) SACR
134 (SCA)
at 139 i-j as follows:
“
The correct
approach is to weigh up all the elements which point towards theguilt
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’
guilt.”
In the instant case the
magistrate in his judgment mentioned that ‘
there were no
red lights flickering and there were no material differences in the
examination in chief and/or the cross-examination
by the
defence’
but
did notspecifically deal with the improbabilities
.The fact
that he did not deal with the improbabilities does not mean that he
did not consider them. See
S v FRANCIS
1991 (1) SACR 198
(A)
at 204b-c.
In casu
the appellant’s version was an
after-thought
and a fabrication. The
magistrate correctly convicted him of
crimeniniuria
.
As far as the conviction
on the charge of assault with intent to do grievous bodily harm is
concerned it is common cause that
the appellant sprayed the
complainant with pepper spray. According to the complainant this
happened when he told the appellant
that he had injured his leg. The
appellanton the contrary said that this took place after he realized
that the complainant was
about to rob him.The State led no evidence
showing that the complainant wasassaulted with the intention to
cause grievous bodily
harm. The extent of the injuries he sustained
wasalso not explored. Although the complainant received medical
attention, no J88
medical form was completed.The doctor who treated
him was also not called to testify. The doctor could have cleared
this up.
See
S v MELROSE
1985 (1) SA 720
(ZSC)
at 724H.
The magistrate
misdirected himself in having found that the appellant was guilty
ofassault with intent to do grievous bodily harm.
The conviction
must accordingly be set aside and be replaced with a conviction of
assault common. The conviction in the first
count of
crimeninjuria
must stand.
In our view the sentence
in respect of both counts, taken together for purposes of sentence,
is a just and proper sentence in
the circumstances and must not be
disturbed.
In the circumstances I
make the following order:
The appeal against
conviction on count 1 (
crimeniniuria)
is dismissed.
The appeal against
conviction on count 2 (Assault with intent to do grievous bodily
harm) succeeds. The conviction of assault
with intent to do grievous
bodily harm is set aside and replaced with a conviction of assault
common.
The sentence of One
Thousand Five Hundred Rand (R1500-00) or in default of payment to
undergo three (3) months imprisonment must
stand. Both counts are
taken as one for purposes of sentence.
_______________________
BM PAKATI
JUDGE
I CONCUR,
_______________________
W COETZEE
JUDGE AJ
For the Appellant:
Adv IJ Nel on instructions of De Bruyn and Strauss Inc,
Jan Kempdorp
For the Respondent:
Adv AH van Heerden