About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 40
|
|
Ntsielo v S (A210/11) [2012] ZAFSHC 40 (15 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No. : A210/11
In the appeal between:-
AN NTSIELO
….......................................................................
Appellant
and
THE STATE
…....................................................................
Respondent
_____________________________________________________
CORAM:
C.J.
MUSI, J
et
PHALATSI, AJ
_____________________________________________________
HEARD ON:
5
MARCH 2012
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
15 MARCH 2012
_____________________________________________________
[1] This is an appeal
against the decision of the magistrate for the District Court of
Kroonstad.
[2] The appellant was
charged with assault with intent to do grievous bodily harm and was
convicted on the said charge on 4 August
2010. She appeals against
her conviction only, with leave from the Court
a quo
.
[3] The State led the
evidence of the complainant, Ms N.C. Ntsala, who testified as
follows:
3.1 She received an
invitation from the appellant to accompany her to Bethlehem.
3.2 She was picked up at
her house by both the appellant and the latter’s friend by the
name of Patricia Mohanwe.
3.3 About 17 km from
Kroonstad on the road to Steynsrus, the appellant indicated that she
wanted to go to a bathroom to relieve
herself.
3.4 The appellant then
showed the complainant a cellphone with her (the complainant’s)
numbers thereon and told her that the
cellphone is that of her
husband, Valentine Senkhane. She wanted to know why the complainant
is phoning to or is being phoned from
the cellphone.
3.5 The appellant stopped
the car, went outside and took a sjambok (whip) from the car boot and
hit her all over her body with it.
3.6 They got back into
the car and drove back to Kroonstad. Along the way back, the
appellant was swearing at her and saying she
is used to taking other
women’s husbands.
3.7 Under
cross-examination, she denied that she fought or threw stones at the
appellant or that the appellant was acting in self-defence
when she
hit her.
3.8 It was further put to
her that the other wounds were as a result of being hit by Valentine
Senkhane, the previous night, but
she denied it.
3.9 The State then handed
in J88 as well as photos of the complainant depicting her injuries,
as exhibits.
[4] The next witness for
the State was Patricia Mohanwe.
4.1 She testified that
she was in the vehicle with the appellant when they went to fetch the
complainant at her house.
4.2 When the complainant
approached the car, she noticed that she (the complainant) was
limping and her face was swollen.
4.3 They went up to
Ventersburg the appellant stopped the car and said she wants to go to
the bathroom.
4.4 Appellant asked her
to alight from the vehicle as she wanted to discuss something with
the complainant in her absence.
4.5 She went out of the
car and a moment later, when she looked back, the complainant was
busy fighting the appellant and at that
time, the appellant was
retreating.
4.6 The appellant then
went to the boot of the car and took out a sjambok. The complainant
had picked up stones and was throwing
them at the appellant.
4.7 The appellant took
out the sjambok, because she was overpowered by the complainant.
4.8 The appellant hit the
complainant twice with the sjambok.
4.9 The appellant wanted
to leave the complainant there, but she pleaded with her that she
cannot leave the complainant so far from
home, where there is no
transport. They all three got into the car and took the complainant
home.
4.10 The prosecutor then
made an application either to discredit the witness or to have her
declared a hostile witness, in that
her evidence in court differed
with what she had stated in her statement to the police. To this end,
the police officer who took
the statement testified and the witness’
statement was accepted as an exhibit. The court, however, dismissed
the application
to have the witness declared a hostile witness.
4.11 In her statement,
the witness only states that Adeline (appellant) was hitting Pinkie
(complainant) with the sjambok. This
is contrary to what she
testified in court, that the appellant was defending herself against
the complainant, who was throwing
her with stones.
[5] The State then called
Ms M.M. Ntsala, the complainant’s grandmother, who testified
that she saw the complainant on the
morning before she left with the
appellant on that day. She said the complainant was bathing in her
(witness’) bedroom and
she had no injuries.
[6] The complainant’s
mother, Ms M.A. Morabe, was also called by the State as a witness.
She testified that the appellant
called her and told her that she had
assaulted her daughter. The appellant wanted to meet her so that they
could discuss this matter.
She met with the appellant and complainant
at the witness’ parental home. She saw that her daughter was
badly assaulted with
a sjambok. When she enquired from appellant why
she (the appellant) did not phone her before assaulting the
complainant, the appellant’s
response was that this witness was
not in her shoes, implying that the witness could have done the same.
[7] The State closed its
case and the appellant closed the defence’s case without
testifying herself or calling any witnesses
on her behalf.
[8] I have deliberately
quoted the evidence of the two state witnesses in full, as it is the
appellant’s contention that,
in view of the contradiction
between the versions of the complainant and Mohanwe, on behalf of the
State, the State did not discharge
its onus to prove the guilt of the
appellant beyond doubt, nor negativing the appellant’s defence
of private defence.
[9] It was further argued
that there were no grounds on which the court
a quo
could
reject or ignore the evidence of Mohanwe as being fabricated or
unreliable.
[10] I must point out
that no criticism was levelled against the evidence of the
complainant, nor the complainant’s credibility
as a witness. In
fact, on the contrary, Mr. Pienaar, who appeared on behalf of the
appellant, conceded that the complainant’s
evidence is
reasonable and/or plausible, but argued that the evidence of Mohanwe
is equally reasonable and/or plausible.
[11] I now proceed to
deal with the two versions, the probabilities and the reasonableness
or not, thereof.
11.1 The evidence of the
complainant that the appellant accused her of having a relationship
with her boyfriend, Senkhane, and that
that was the reason for the
assault, is not contradicted by Mohanwe.
11.2 The evidence of the
complainant that she was not assaulted by Senkhane the day before the
incident, is equally not contradicted
by Mohanwe. The evidence of
Mohanwe that the complainant was limping and that her face was
swollen, is of no consequence, as it
does not negate the fact that
the sjambok wounds all over the body of the complainant, as depicted
on the photos, were as a result
of the assault of the complainant by
the appellant. This also negates Mohanwe’s version that the
appellant only hit the complainant
twice with the sjambok. It is also
false as Ms N.N. Ntsala testified that the complainant had no
injuries on the morning before
she left with the appellant.
11.3 The evidence of
Mohanwe that the appellant hit the complainant with the sjambok in
self-defence, as when she looked back, the
complainant was busy
fighting the appellant and the appellant was retreating. I have a
problem with this version on two grounds.
Firstly, if the
uncontradicted evidence of the complainant is that the appellant
assaulted her as she accused her of having a relationship
with her
boyfriend Senkhane, then it is unlikely that she (complainant) could
have started the fight, as she had no reason to attack
the appellant.
Secondly, Mohanwe does not mention this fact in her statement to the
police. On the contrary, she corroborates the
evidence of the
complainant in her statement, where she mentions that “after a
while I saw that Adeline (appellant) was hitting
Pinky (complainant)
with a sjambok”. Her explanation in court that she was in a
hurry when she made the statement is equally
unconvincing and
unreasonable. Firstly, as the police officer who took her statement,
Maton, testified that she was not in a hurry
and secondly, that even
if she was in a hurry, she should at least have mentioned that it was
the complainant who was fighting
the appellant, as the hitting with
the sjambok, according to her own version, only happened later.
11.4 When the appellant
spoke to the complainant’s mother she admitted assaulting the
complainant. She did not mention anything
about being thrown with
stones by the complainant.
[12] I therefore, find
that the version of Mohanwe, where it is inconsistent with that of
the complainant, is unreasonable and false,
and stands to be
rejected. In any event, she had a reason to change her evidence to
suit the case of the appellant, as she was
her friend.
[13] The submission,
therefore, that there are two versions on behalf of the State, which
are equally true, is devoid of any merit
and rejected. It is
impossible to have two contradictory versions that are equally true.
[14] I consequently find
that the appeal of the appellant must fail.
[15] I, therefore, make
the following order:
15.1 The appeal is
dismissed.
15.2 The conviction
and sentence are confirmed.
_________________
N.W. PHALATSI, AJ
I concur.
___________
C.J. MUSI, J
On
behalf of appellant: Adv. C.D. Pienaar
Instructed
by:
Naudes
BLOEMFONTEIN
On
behalf of respondent: Adv. D.W. Bontes
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp