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[2011] ZAGPPHC 213
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Asaneng v S (A81/2011) [2011] ZAGPPHC 213 (9 December 2011)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO: A81/2011
DATE:09/12/20111
IN
THE MATTER BETWEEN:
GOPOLANG
PATRICK
ASANENG
........................................................................
APPELLANT
AND
THE
STATE
.......................................................................................................
RESPONDENT
JUDGMENT
LEGODI.
J
1.
Before us, is a criminal appeal against convictions and sentences on
charges of inconsiderate driving, crimen injuria, and assault
common.
2.
The appellant, a director in the South African Police Services,
initially appeared on these charges in the Magistrate's court
for the
district Potchefstroom. He was legally represented through out the
proceedings in the court a quo. He pleaded not guilty
to all these
charges and as regard the assault charge, he raised self-defence. As
regards the other two charges, he denied all
allegations levelled
against him.
3.
He was ultimately convicted on the assault, crimen injuria, and
inconsiderate driving charges. Subsequent to his convictions,
he was
sentenced as follows:
3.1
Charge 1 : Assault; Sentenced to R10 000.00 or 12 months imprisonment
half of which was suspended on certain conditions.
3.2
Charge 2: Crimen injuria: Sentenced to R5000.00 or six months
imprisonment.
3.3
Charge 3: Inconsiderate driving, sentenced to R2000.00 or two months
imprisonment.
4.
This appeal before us, is with the leave of the court a quo. The
state led the evidence of four witnesses and the appellant also
testified in his defence, after which, the state applied for the
reopening of its case and the fourth witness for the state testified
in rebuttal on some of the evidence adduced by the appellant. It is
not my intention in this judgment, to deal with the evidence
of each
witness in detail or separately, unless it becomes necessary to do
so.
5.
In a nutshell, the evidence by the state against the appellant was
to the following effect: It was during the day, at around
about
13H00. All of it happened on the 8 January 2007. The complainant was
on his way to school to fetch his children.
6.
He was driving his motor vehicle along Van Welligh Street in
Potchefstroom. He was travelling from a westerly direction towards
the east. At a robot intersection of Van Welligh and Tom Street, he
was to turn to the left, towards a northerly direction into
Tom
Street. The robots were red for him and he stopped at the
intersection, to wait for his right of way. When the robot turned
green for him, he then turned to the left. The appellant's vehicle
which was on the opposite side also turned to the same direction
into
Tom Street. It got in front of him. Both vehicles proceeded towards
the north in Tom Street.
7.
By the way, the road at the robot intersection aforesaid has two
lanes on both sides of Van Welligh Street. The one allowing
vehicles
coming from a westerly direction to turn to the left and similarly,
the one allowing vehicles coming from a easterly direction
to turn to
the right into Tom Street. Tom street has single lanes. From the
robot intersection up to a distance away from the intersection,
there
is a cement pavement and also drainage hole. There is also a garage
on the left hand side as one moves from the robot intersection
towards the north into Tom street.
8.
From the robot intersection and after you have passed the garage,
there is a stop sign. It was at this stop sign that the complainant
moved from behind the appellant and stopped at the first stop sign on
the appellant's right side. He opened his window and uttered
words to
the following effect: "Chief, you cannot make me to drive the
way you made me to drive''
9.
The appellant is said to have responded by uttering the following
words in Setswana "Polo ya gago". This was translated
as,
"Your penis". From that first stop sign, both the appellant
and complainant drove towards the next stop sign. At
that stop sign,
the complainant turned to the left towards Steers-Take Away outlet.
10.
The complainant made a U-turn, after having turned to the right. He
followed the appellant. He took a photo of the appellant
as the
appellant was getting out of his vehicle. Apparently, the appellant
did not realize the complainant at that stage. The complainant
was
not satisfied with the quality of the photo. The appellant went into
Steers. The complainant followed him. At Steers, and in
full view of
everyone, including the appellant, the complainant took photos of the
appellant. The appellant realizing what the
complainant was doing,
tried to take the camera from the complainant. They struggled over
possession of the camera. In the process,
the appellant slapped the
complainant. The appellant could not succeed in taking the camera
from the complainant. Other people
assisted the complainant in
ensuring that the camera was not taken away from him. This alleged
conduct on the part of the appellant,
led to the charges aforesaid,
being preferred against him.
11.
Before I deal with the evidence of the appellant, and the defence
raised by him, it might be necessary to briefly sketch out
what is
required of the state in any criminal case. The court is required to
consider the evidence as whole in considering whether
the state has
discharged its onus. Defects in the evidence of the accused, not
assisting state therein, if evidence of state witnesses
is open to
serious criticism. An accused does not have to convince or persuade a
trial court of anything. If the court finds the
accused's version
might reasonably be true, such is sufficient for acquittal. (See S v
Fochems 1991(1) SACR 208 (A).
12.
Assessment of mutually destructive factual accounts, although
relative honesty of two versions is of a great importance, not
only
their honesty has to be considered, but also and more particularly,
their reliability. Truth of the version of onus bearing
party has to
be proven and not merely the honesty of the witness or witnesses who
put it forward. (See S v Saban en'n Ander
1992 (1) SACR 199(A).
13.
The trial court when confronted with mutually destructive versions,
is required to apply its mind not only to merits and demerits
of the
state and defence witnesses, but also to the probabilities of the
case. The best indication that the court had applied its
mind, in a
proper manner, is to be found in the reasons for judgment, including
reasons for acceptance and rejection of respective
witnesses. (See S
v Bhengu
1998 (2) SACR 231
(W).
14.
I now turn to deal with findings by the trial court. As regards to
reckless, negligent or inconsiderate driving, the trial court
at the
start of its discussion on the charge, expressed itself as follows:
"The complainant's version is fairly simple and
straight
forward, although the accused did dispute some material aspects in
it." I do not agree with the suggestion that the
evidence was
"fairly simple and straight forward". In my view, with
regards to the charge of reckless, negligent or inconsiderate
driving, the first question should have been seen as being whether
the state had proved beyond a reasonable doubt that the robots
were
red for the complainant and that the complainant stopped at the
robots before he turned to his left into Tom streets. Secondly,
whether there was any such cutting in and if so where it happened on
the road. The evidence of the complainant in chief proceeded
as
follows:
"
What happened then?... I have turned and this Mercedes Benz also
turned and turned in and get infront of my vehicle.
When
you turned which of the two vehicles had the right of way?... It is
my car. So the did the Mercedes Benz have to cross your
lane in order
to turn in the same street as you were turning into?... Yes, it get
into my lane."
15.
The third question quoted above, was clearly leading, and it also
did not make any sense. The appellant did not have to cross
any lane.
There was no lane to cross. Remember, into Tom Street, there was only
one lane towards the north. So, if the appellant
was from east
turning to the right towards the north into Tom lane, he did not have
to cross any lane of the complainant. The statement,
" / have
turned and this Mercedes Benz also turned and turned in, and get in
front of my vehicle", did not suggest any
wrong doing on the
part of the appellant. But, because the prosecution was not happy
with the explanation of what had happened
at the intersection, it
found it necessary to put leading questions.
16.
Remember, the version as quoted above had given a brief account of
what the appellant had already done with regards to count
three, the
reckless, negligent or inconsiderate driving. Not been satisfied with
an outline of the events, the prosecution then
put a question as
follows:
"I
want to take you back to the situation when you turned into Tom
Street. The Mercedes Benz, then drove in front of you, is
that
correct?... That is correct.
"Did
you have to do anything when he came In front you?... I swerved to
the garage just to avoid an accident."
16.1
The question should have been stopped there and then. It was leading
and suggestive. The witness was asked to tell a story
by putting
questions like "What happened?, and "you may proceed sir."
When he failed to do so, a somewhat leading
and suggestive question
as indicated in paragraph 16 above was put to him.
17.
I do not see all of these as having been 'a simple and
straightforward' version by the complainant. The complainant's
version
should further be seen in the context of what unfolded later
in his evidence. Remember, it was the "swerving to the garage
just to avoid an accident" that brought the appellant to be
convicted on the inconsiderate driving charge.
18.
Under cross examination he made a statement to the following effect:
".../ stopped at the robots and I was turning left
and that is
when this car came in". Having said this, a question was then
put to the complainant as follows: "Did the
accused's car
overtake your car, because he was the first to turn?... After I
avoided this collision, it passed by."
19.
This piece of evidence might suggest that the swerving and avoiding
of the collision had occurred whilst the appellant's car
was behind
or had not yet passed the complainant. If that was so, why then was
it necessary to do the "swerving" and
"avoiding'' of
the collision? All of these do not suggest a simple and a straight
forward version as to how the alleged inconsiderate
driving was
committed.
20.
Now, the complainant wished to suggest that the collision took place
almost at the corner of his left, at the intersection.
Perhaps to
make it clearer, during cross examination, the complainant was
confronted with the sketch plan and key thereto. A, on
the sketch
plan denotes the direction of the appellant's vehicle at the
intersection. B, denotes the position of the complainant's
vehicle at
the time the appellant was entering the intersection. C, is the left
corner of the intersection as one comes from a
westerly direction,
turning to the left towards the North at the intersection. The
distance between C and where the complainant's
vehicle was observed
by the appellant when he turned at the intersection towards his
right, is 37 paces. By the way, the appellant's
car coming was from
the east and it turned to the right towards the north. D, on the
sketch plan was not properly explained, but
the distance between C
and D, was recorded as 37 paces. E is the northerly corner of the
intersection as one comes from the east.
In other words, the corner
on the right hand side of the appellant at A. F is positioned next to
A. That is, the right edge of
the lane from east. This is the lane
for cars wishing to turn to the right at the intersection from the
east, into Tom Street towards
the north.
21.
In the course of the cross- examination of the complainant, the trial
court had the occasion to go for inspection in loco. On
its return,
it expressed itself on record as follows:
"/
think the court may record that there is not much difference or
disputes around the area at which the alleged reckless or
negligent
driving occurred. In addition the following observations are
recorded: We measured the distance between, rather, from
the corner
of shall I say, the intersection to the entrance of the garage and
that was measured at 15 meters. We also measured
the distance between
the tree and the curb and that was about three paces. We measured the
distance between G and C, or K, if you
wish, and that was about four
paces, yes. I think the rest of what appears on Exhibit E was
confirmed by both the accused, through
his legal representative, and
Mr Wanyane and the public prosecutor."
22.
In addition to these recordings upon return from inspection in loco,
the defence placed the following on record:
"And,
finally, it should also noted that there is, that the road is lower
than the pavement and there is a cement (inaudible)
there/Jo this,
the trial court responded by saying "yes".
23.
Further, the defence placed on record the other observations during
inspection in loco as follows: "Ja, but what I am
saying, your
worship is there is (inaudible) the pavement, right from the corner
there is a pavement and then there is the water
drain thing, which is
not even bigger than or longer than a metre and those
embankments(inaudible).
24.
The defence then concluded with what he wanted to be placed on record
as follows: "what I am saying, I am just trying to
show your
worship that what we want to have seen, for anybody to get out of the
road he must have gone onto that thing. That is,
what I am trying to
explain."
25.
The recording of observations during inspection in loco as indicated
by the defence during trial, sought to suggest that if
there was any
attempt by the complainant to avoid the alleged collision, he would
have bumped against the pavement or the embankment,
something which
the complainant said never happened. Remember, that the court a quo
placed on record after the inspection in loco
that from the
intersection, from C to the entrance of the garage, is 15 meters.
26.
I think it makes sense why the complainant did not bump against the
pavement or even the sewerage drainage. It was the appellant's
version that there was never such an interruption that could have
caused the complainant to want to avoid a collision. The appellant's
version in this regard, should also be seen in the context of the
complainant's evidence. At the risk of repeating myself, it unfolded
as follows:" / swerved to the garage just to avoid an accident."
27.
'Swerved to the garage just to avoid on accident', in my view,
dispelled the suggestion that the cutting in, in front of the
complainant, was at the intersection at round about point C. If the
state really wanted to suggest that the "swerving and
avoiding
of the collision," was not at the entrance of the garage, such a
point where the swerving and avoiding of the collision
took place,
could have been pointed out during inspection in loco. But of course,
in my view, it makes a sense, why it did not
become an issue during
inspection in loco. Simply, it was not the complainant's evidence
that it happened at C or between C and
before the entrance of the
garage, which was measured as 15 meters from the robot intersection.
The version was that the "swerving
and avoiding'' was at the
direction towards the garage. Remember, when the court went for
inspection in loco, the complainant had
already said: "I swerved
to the garage just to avoid an accident."
28.
Bearing all of the above in mind, the next question is whether the
state had proved beyond reasonable doubt that the appellant
cut
infront of the complainant. The state's version in the court a quo,
was in my view, clarified with regard to the suggestion
that at the
intersection, the appellant unexpectedly cut in front of the
complainant's car. I have already dealt with the evidence
in this
regard. If it was to be true he swerved to the garage just to avoid
the collision, it can't also be true that the cutting
in was at the
intersection.
29.
Counsel for the respondent in this appeal sought to suggest that the
case for the state should be seen in context. That is,
why would the
complainant confront the appellant and enquired as to how he was
driving, if it did not happen as explained by the
complainant. The
"why" question is a rhetoric question. Absence of motive to
incriminate accused not conclusive. It is
only one of the factors to
consider. (See S v M
1999 (2) SACR 548
(SCA). It is necessary to
guard against putting the onus on the accused to explain why a state
witness would lie. (See S v Lesito
1996 (2) SACR 682
(O).
30.
It is dangerous to convict an accused person on the basis that he
cannot advance any reasons why the state witnesses would
falsely
implicate htm. The accused has no onus to prove any such explanation.
The true reason why a state witness seeks to give
the testimony he
does is often unknown to the accused and sometimes unknowable. Many
factors influence prosecution witnesses in
insidious ways. They often
seek to carry favour with their supervisors', they sometimes seek to
please and impress police officers,
and on other occasions, they have
secret ambitions and grudges unknown to the accused. It is for these
reasons that the court has
repeatedly warned against the danger of
the approach which asks: "Why should the state witnesses have
falsely implicated the
accused?" (See S v Ipeleng
1993 (2) SACR
185
(T) at 189 c-d.) I think the complainant in the present case has
conducted himself as a man with many colours. A man who pretends
to
be the kind of a person who wants to see justice to be done, but at
the same time a very confrontational and angry man who stops
at
nothing.
31.
It is the wrong approach in a criminal case to say: "Why should
a witness for the prosecution, come here to commit perjury?
It might
equally be asked: "why does the accused come here to commit
perjury? True, an accused is interested in not being
convicted, but
it may be that a state witness also have an interest in securing a
conviction. It is therefore, quite the wrong
approach to say, ' I ask
myself whether this man has come here to commit perjury, and I can
see no reason why he should have done
that, therefore his evidence
must be true and the accused must be convicted.' The question is
whether the accused's evidence raises
a doubt. (See remarks by late
Milllin in Schulles v Pretoria City Council, a judgment delivered on
8 June 1950, but not reported).
This judgment was also quoted in
Ipeleng supra at 189. I think, the trial court in the present matter
before us, adopted the same
approach which is said to be wrong, in
rejecting the appellant's version. His evidence on all the charges in
my view, raised a
doubt, especially seen in the manner in which the
complainant conducted himself, not only during questioning, but also
as displayed
by his conduct towards the appellant and, his conduct
towards the other police officials at the police station.
32.
However, it must be remembered that, the appellant's version was that
the complainant was not at the intersection when the appellant
made a
turn to the right into Tom Street. Now coming back to the "Why"
question, the manner in which the complainant
conducted himself
towards the appellant, in my view, displayed the kind a person who
lacks the attributes of patience and tolerance.
He displayed the
attitude of a person who wants to take charge of every situation. In
doing so, he displayed a confrontational
attitude. Such people loose
it at a slightest provocation. It could well be that the complainant
expected the appellant to stop
at the stop sign and waited for him to
turn left into Tom Street, despite the fact that he was still a
distance away from the intersection
when the appellant turned to the
right from the easterly direction.
33.
Ordinarily, one would wait for the car turning to the left, before
the one wishing to turn to the right in the same direction
could
turn. The rhetoric "why" question very often tends to call
for speculation. Just to show how intolerant and confrontational
the
complainant was or could be, he drove behind the appellant.
Approached a stop sign on a single lane road. At the stop sign,
stopped on the lane of the oncoming vehicles, just for the sake of
confronting the appellant by uttering the words to this effect.
"Chief,
you cannot make me to drive the way you made me to drive."
34.
By that time when he so confronted the appellant, he was aware that
he was talking to a police official in uniform. Still that
did not
deter him from continuing with his subsequent conduct. I am saying
this because after he was allegedly insulted at that
stop sign, he
took the registration number of the appellant's vehicle. The
suggestion was that, because he was insulted and he
wanted to report
the insults to the police. One would have thought that it would end
up there. But, not with the complainant. At
the next stop sign, when
he realized
that the appellant had turned to the left, the
complainant having turned to the right, decided then to make a
U-turn, with the sole
purpose of confronting the appellant again. He
did this by taking photos of the appellant and his car at a parking
bay. Apparently,
not content with the photo or photos, he continued
pursuing the appellant until he got to Steers. There, in full view of
everyone,
he started taking pictures of the appellant again.
35.
You really need to be a persistent person and an angry person to do
all of these. You need to be the kind of a person who wishes
to
display how far he or she can go in pursuing other people, and
confront them, no matter what other better options you have.
I do not
know whether I should call the complainant a brave and a daring
person. For example, having arrived at the police station,
and whilst
the appellant was still somewhere at the police station to report the
incident, the complainant arrived there. His conduct
at the police
station was described by Senior Superintendant Molate, who testified
on behalf of the defence as follows:
"When
I entered, there was certain gentleman who was speaking very loud and
screaming. I just heard him saying, waar is daardie
man, waar is
daardie man. Ek sal horn stop. Waar is daardie man, waar is daardie
man. Then I came nearer to him I saw other members
like scared or
surprised of what was happening. Then I came closer to him, then he
said 'ever since I was born I was never assaulted
by a young boy like
Asaneng'. Then I thought okay maybe that is the man who had a problem
with Director Asaneng:' Question: All
right now this man you say he
was swearing and he said waar, is daardie man ek sal horn stop. In
what mood was this person? Answer:
O, he was very angry, he was very
aggressive."
36.
Further in an answer to a question as to what kind of a person was
the complainant at that time, Superintendant Molate responded
as
follows:
"You
know what, I saw it was just anger. He was angry and I tried to calm
him down, but because he was angrier he could not
even hear what I
was trying to say. So I just saw anger on his face like fight. He was
someone who is like really to fight because
he was speaking very
loud."
37.
You really ask yourself what was the anger all about at that time?
But, this is the kind of a person who is said to have had
no reason
to confront and implicate the appellant. As I said, it could well be
that he expected the appellant to wait for him despite
the tact that
he was still at a distance.
38.
I think what was 'simple and straight forward', with regard to the
inconsiderate driving charge, was the appellant's version.
He
approached the robot Intersection in question. As he was approaching,
the robot turned green for him. He did not stop. He indicated
to turn
to the right. He turned to the right. There was no car that he nearly
bumped into. The complainant's car was not there
at the robot
intersection when he turned to the right. The complainant's car at
the time the appellant made a U-turn to the right
was about 30 to 60
meters away from the intersection. This distance was measured at 37
paces. After having turned to the right,
a distance away from the
intersection, he saw the complainant's vehicle from behind. This
evidence, in my view, was not in any
way destroyed under cross
examination and I do not think that it could be said it is not
reasonably possibly true. The trial court
therefore, should have
found that the guilt of the appellant was not proved beyond a
reasonable doubt with regard to count 3, for
which the appellant was
found guilty of inconsiderate driving.
39.
I now turn to deal with the crimen injuria charge. According to the
charge sheet, the offence was committed by saying "fuck
off"
and by saying "Po/o ya gago " (your penis) referring to the
complainant. The trial court found the appellant
guilty on this
charge for having said "Polo ya gago". As for the "fuck
off, the complainant himself did not hear
any such words being
uttered. And therefore, even if they were uttered by the appellant,
there could not have been any case on
the words which the complainant
did not complain about or did not hear.
40.
Therefore, the question is whether the state had proved beyond
reasonable doubt that the appellant uttered insulting words
by saying
"Po/o ya gago" According to the complainant, these words
were uttered by the appellant at the first stop sign
after the robot
intersection. Remember, it was when the complainant confronted the
appellant complaining about the manner in which
the appellant
allegedly drove his vehicle.
41.
According to the appellant, he was approaching the first stop sign
after the robot intersection. Before reaching the stop sign,
there,
there was the complainant's vehicle, on his right hand side and on
the lane of the on- coming traffic. The complainant whose
face was
unknown, was obviously unhappy.
The
complainant then accused the appellant of cutting in, infront of the
him. When the complainant realized that the appellant was
a police
officer, he then said to the appellant words to the following effect:
"Just
because you are a police officer, you think I am afraid of you. I can
hit you."
42.
This is typical of the complainant as already indicated earlier in
this judgment.
When the complainant uttered those words, both
vehicles were approaching
the stop sign, with the complainant's
vehicle on the lane of the on- coming
cars. As they were so
driving, the appellant uttered words to the following
effect:
"Look
here before you do something unnecessary, you can die of heart. You
are causing yourself a heart attack."
43.
The complainant continued talking until they reached the second stop
sign. By that time, the appellant had closed his windows.
It is clear
from this account of events that the complainant must have been
showing the same attitude as he did at the police station.
Indeed, he
seems to be afraid of no one. But similarly, he seems not to have a
listening skills. For example, he did not hear when
the appellant
said "fuck off. Although, the appellant in his evidence sought
to deny that he said this, in the statement that
is in his
handwriting, he
did confess or admit that he uttered the words
"fuck off. I am therefore prepared to accept that he uttered
those words.
44.
But whether or not he uttered words "Polo ya gago" (your
penis) is another story. "You can die of a heart. You
are
causing yourself a heart attack" in Setswana can be translated
as follows: "Of/a hwa ka pelo, O ke hiolela bolwetsi
ba pelo".
Words "Po/o ya gago" could easily be confused especially
when conveyed to a person who is angry and busy
talking as the two
cars were moving. By the way, "Pelo" means "heart"
and "Po/o in the context in which
it was alleged to have been
used means "penis". "Fuck off turns to be loud when
uttered, but still, the complainant
did not hear those words. The
appellant in his evidence suggested that the complainant may not have
heard him properly. Why should
the appellant admit in his statement
having said "fuck off but not mention for having said "Po/o
ya gago". "Fuck
off, and 'your penis' are both insulting.
'Fuck off could even be more hurt full. If the complainant had heard
"fuck off when
they were uttered, these could have caused hurt
to the complainant The appellant could have been correctly convicted
on these words.
But, that did not happen. The complainant was not
hurt by the words "fuck off words. One might be tempted to say,
the appellant
contradicted himself, for example, that in his oral
evidence, he denied having uttered the words " fuck off ,whilst
in the
statement that he made to the police, he wrote that he said
those words. The fact that an accused person could lie or lied on a
particular aspect, does not mean that the whole of his or her
evidence should be seen as false. An accused may think that by
colouring
his or her evidence or denying a particular fact, will make
his case better.
45.
Now to say to the complainant that, "you are causing yourself a
heart attack,"
should really be seen in context. In the
statement that was submitted to the
police, the appellant
described the conduct of the complainant as follows:
"As
soon as I had turned, I heard a car hooter behind me and when I
looked at my rear view mirror, I noticed that it was the
same white
vehicle which was now driving behind me. The driver was gesticulating
and pointing fingers at me I confirmed to drive
and stopped at the
first four way stop. The driver of the vehicle without a registration
plate in front then did not stop, but
drove next to me while he was
now falling on coming traffic. I slowed down my window and asked the
driver whether there was a problem
and I could see that he was angry
and aggressively asked me why I entered the intersection before him
as he had the right of way."
46.
Very often you get tempted to tell people who are fuming to cool down
before they cause themselves a heart attack or a stroke.
Shouting,
screaming at people and getting too angry, is not good for anyone.
Therefore, to say to complainant, 'y°u can die
of a heart. You
are causing yourself of heart attack', was not in the circumstances
of the case farfetched to reject it as false
or as not been a
reasonably and possibly true. It is a reaction consistent with human
experience.
47.
Again one is here faced with two contradictory versions I do not
think that the version of the appellant could be said not
to have
been reasonably possibly true, neither can it be said that it was
proved to be false beyond reasonable doubt. He should
have been given
the benefit of doubt.
48.
I now turn to deal with the conviction on the common assault charge.
It was common cause that the appellant did slap the complainant
at
Steers restaurant. The state said the complainant was slapped twice.
On the other hand, the appellant said he slapped the complainant
once. I do not think that it makes any material difference.
49.
Whilst the evidence tendered on behalf of the state seems to be in
agreement that the slapping took place when the complainant
and the
appellant were struggling over possession of the complainant's
camera, the contention was that there was no cause for the
appellant
to have slapped the complainant. I cannot agree with this contention.
I think, the suggestion would have been different,
had the appellant
succeeded in taking the camera, and then thereafter slapped the
complainant.
50.
But that was not to be. The struggle over the camera should be seen
in context. In fact it was not the camera that the appellant
wanted,
but rather, the film inside the camera. Remember, the appellant
having been confronted by an unknown angry person, he was
followed by
that angry man into Steers.
That
angry man was the complainant. The appellant is a police man, who was
in uniform when he was confronted at the stop sign. By
that time, the
appellant was aware that many police officials had been killed.
Whilst there was a suggestion that at Steers, the
complainant was
cool and collected, I do not think so, particularly seen in the
context of his conduct before Steers and after
Steers, at the police
station.
51.
What came to the appellant's mind when he saw the complainant taking
pictures of him? He felt threatened. What did the complainant
want
the photos for? To compile a hit list or what? I do not think that
anyone can be blamed for having had all these questions
in mind at
the Steers when pictures of him were taken. The next question would
have been, what to do then? Allow the appellant
to take pictures of
the appellant and leave him to do whatever he wanted to do with them?
I do not think so. Put yourself in the
position of the appellant. On
all probabilities, one would have done the same, by ensuring that the
film is not utilized to develop
the appellant's pictures.
52.
You do not have to stand by for an imminent threat. Immediate threat
was that the pictures of policeman in uniform could be
used for
unlawful activities. But besides this, the appellant sought to
explain the circumstances under which he slapped the complainant.
He
put it this way in his evidence in chief:
"I
wanted to take the film and destroy it, ...I held the camera as he
was holding the camera. Your worship, when i wanted to
take the
camera, he did not give up, we struggled. Your worship as we were
struggling over the camera, I noticed that this person
tried to
overpower me, in other words he wanted to trick me your worship.
Seeing that I was overpowered your worship, it was at
that stage when
I slapped him. i then realized that this person is overpowering me
and if he can manager to get me on the ground
that is when he is
going to assault me."
53.
Unless one was to find this version of the appellant to have been
false or not reasonably possibly true, there would have been
no basis
to have found that the appellant did not act in self-defence. In its
judgment, the trial court in rejecting the appellant's
version,
expressed itself as follows:
"The
conduct of the Accused did not constitute self defense. At most it
constituted an act of attack on the Complainant. During
cross
examination on this aspect no coherent answer was forthcoming. He was
at pains to explain where the struggle for the inside
or outside and
denied having followed the Complainant outside Steers. When, it was
clear from the evidence that he in fact did
so. It confirmed by the
Complainant during cross examination and confirmed by the Accused in
evidence in chief. That during the
struggle for the possession of the
complainant camera, the complainant grabbed the accused with his belt
and attempted to trip
and fell him. That when accused realized that
the complainant was overpowering him he slapped him once with an open
hand in self
defense. The complainant refuted this suggestion and
told the court that he could not have held the accused in the manner
explained.
Nor could he have tried to trip him because he is limping.
The accused did not raise this suggestion with Misses Babejang who
was
about seven passes\meters away from the accused and the
complainant at the critical moment. It will be recalled that misses
Bobejang
corroborated the complainant version. That when the accused
slapped him twice he was telling him that he was not fighting him.
The accused was under no apprehension of danger and could therefore
not raise the issue of self defense. There is sufficient
corroboration
between the evidence of the complainant, Mister
Molebatsi and Misses Bobejang about what happened at Steers."
54.
I do not think that it was ever in dispute that there was a struggle
over the possession of the camera and the reasons thereof.
Therefore,
it was immaterial whether it was inside and outside Steers. It was
also immaterial whether the complainant was moving
away from the
appellant at the time the appellant followed the complainant to take
the camera from the complainant.
55.
The point of the matter was that pictures of a policeman who was in
uniform was taken by an angry unknown man who was going
away. As I
said, to have expected the appellant to sit back and not want to
retrieve the film in the circumstances of the case,
would have been
unreasonable.
56.
I think the trial court in seeking to rely on the evidence of Mr
Molebatsi and Ms Bobejang , to come to the conclusion that
there was
no provocation to have slapped the complainant, needs further
consideration and evaluation.
57.
Let me just start with Mr Molebatsi. He clearly took sides. He could
have come to the defence or assistance of a policeman
who was in
uniform. He had seen when the complainant took pictures of the
appellant. He must have known that the purpose for the
struggle over
the camera, was to ensure that the complainant did not use those
pictures of the appellant.
58.
Now coming back to the suggestion that his evidence was that the
slapping took place when there was no provocation to do so,
one needs
to closely examine his evidence in chief. The evidence went around
like this:
"You
worship I was waiting there on the corner, that is where we are
loading the passengers. That was at that stage when I
saw where
Mister Moilwa alighting from his vehicle and he was having a camera,
a Samsung.
Your
worship, it was a minute after he alighted from his vehicle, can then
went in the direction of Steers. When he arrived there,
he was
shooting or he was taking photographs. After he took the photographs,
it is when I noticed the police officer in a uniform
approaching
mister Moilwa and I only heard when mister Moilwa said to the said
Police officer, why are you swearing at me? I was
just across the
street, above thirty meters away from him. They were fighting over
the camera. Your worship, I then crossed the
street and I went to
them and whilst I was on my way I saw the accused slapping the
complainant twice."
59.
This evidence does not tell what prompted the slapping. Neither does
it suggest that nothing was happening to the appellant
when the
slapping took place. At the risk of repeating myself, in his evidence
in chief, the appellant articulated the danger to
himself as follows:
"...as
we struggled over the camera, I noticed that this person tried to
overpower me, in other words, he wanted to trip me
your worship.
Seeing that I was overpowered, Your worship, it was at that stage,
when I slapped him...I then realized that this
person was
overpowering me, and if he can manage to get me on the ground that is
when he is going to assault me."
60.
Once one accepts that this is what had happened, or that the
appellant's
version in this regard cannot be seen as false or as
not been reasonably
possibly true, then self defence stands. In
addition to this, is the complainant's
refusal to hand over the
camera, which the appellant believed that it could be
used to put
his life at a risk I am referring here, to the pictures of him
having
been taken by the complainant.
61.
I cannot see how self defence raised by the appellant had "at
most constituted an act of attack on the complainant"
To come to
this conclusion, you need to disregard the fact that in the
circumstances of the case, the appellant was entitled to
take from
the complainant, the film that had in it, his pictures. Again, he
wanted to take the film for fear of those pictures
been used to
endanger his life.
62.
The quotation in paragraph [53] above also gives the impression that
the trial court placed much emphasis on the fact that the
complainant
refuted this suggestion and told the court that he could not have
held the appellant in the manner explained. Nor could
he have tried
to trip him because he is crippled. A man who is seriously crippled,
does not go around telling people that he will
hit them. The
appellant indicated that this was said to him by the complainant. A
man who is so seriously crippled, would not be
strong enough to have
made it difficult for the appellant to take the camera from him. He
will not be so courageous to go to the
police and shouted in the
manner as described by senior superintendant Molate.
63.
In any event, the complainant was not using a walking stick. There
was no suggestion that the appellant was aware that the
complainant
was limping. But, even most importantly, the extent of the
complainant's disability was not investigated to come to
the
conclusion that he was not capable of tripping another person in a
fight or struggle.
64.
The fact that the appellant did not raise tripping with Misses
Bobejang during her cross-examination, in my view, could not
have
taken the matter any further, especially for a party that had the
onus to proof beyond reasonable doubt the guilt of the appellant.
Remember, at the time she gave evidence, self defence by tripping,
was already put to the other witnesses. It was therefore, incumbent
on the state to take up the defence with its witnesses. If it did
not, when it was known to the prosecution, no adverse inference
should have been drawn against the appellant.
65.
It is also important to have a closer look at the evidence of Misses
Bobejang. Her evidence in chief proceeded as follows:
"
Your Worship, I did not see exactly as to whether he did of course
manhandled each other or they did argue outside, but they
were force
fighting over the camera.
I
saw the police officer slapping the gentlemen who was having the
camera"
66.
When asked as to whether the complainant retaliated, after he was
slapped,
Misses Bobejang responded as follows:
"
No, the gentlemen did not retaliate, he only said that he does not
want to fight with him."
67.
During argument before us, it sounded like counsel for the
respondent wished to rely on this statement in finding nothing wrong
with the conclusion arrived at by the trial court. The real issue
however, should have been whether the complainant was overpowering
the appellant and whether the complainant attempted to trip the
appellant. What was important was that the appellant could not
take
the camera from the complainant, and therefore, the suggestion that
the complainant was overpowering the appellant, should
not have been
seen as farfetched. The fact that the complainant was heard saying,
'he did want to fight', did not mean he was not
overpowering the
appellant, and that he did not attempt to trip him. It could well be
that the complainant said he did not 'want
to fight', after he had
felt the slapping.
68.
It also did not look like Ms Bobejang had seen everything that
happened before the slapping. For example, she did not see the
spectacles falling off from the complainant's face. This was despite
the fact that she was about seven meters away from the appellant
and
the complainant. Her cross examination went around like this:
"Question:...
now you say you could not see properly this thing, That is why you
could not even tell us whether it is the right
of left cheek, is that
correct?
Answer:
Yes, your worship.
Question:
What was the problem? Why could you not see properly?
Answer:
As I was on duty, Your worship, I was not actually (indistinct) those
people your worship. Because I had to. concentrate
on the customers
as well your worship.
Question:
So in fact you cannot give us a very accurate account of what really
happened, because you were busy, with your cleaning,
casually looking
at this thing, is that so?
Answer:
Yes your worship, because I only saw a certain part."
69.
Now to say "It will be recalled that Misses Bobejang
corroborated the complainant version. That when the accused slapped
him twice, he was telling him that he was not fighting him", in
my view, should not have been seen as refuting the suggestion
that
the complainant was overpowering the appellant and that the appellant
was been tripped. It is clear that on the denial of
tripping, the
state could only have relied on the evidence of the complainant and
not corroborated by the Misses Bobejang. Misses
Bobejang obviously
did not see that..
70.
As I said earlier in this judgment, the fact that the appellant said
he slapped the complainant once, whilst the state's evidence
suggested twice, did not make any material difference. Remember,
according to Miss Bobejang, the slapping was spontaneous. As she
conceded, it was fast like 'blah, blah like that." I am
therefore, not satisfied that the guilt of the appellant on the
assault
charge was proven beyond reasonable doubt. I do not
find it necessary to deal with the sentence imposed on the appellant,
especially seen in the light of the order I intend to make.
71.
Before I conclude, I want to say this. The complainant was not a good
witness. I am not talking here about observations of the
demeanor of
the complainant in the witness box. But, rather the manner in which
he expressed himself and answered questions, as
it is clear from the
record. Many times, he was requested to answer questions directly and
not attempt to anticipate the essence
of the questions. He was so
warned not only by the defence, but, by the court as well. His
response to the first few questions
put under cross examination, in
my view, displayed the attitude of an uncooperative witness. I do not
find it necessary to go into
the details.
72.
The appellant on the other hand faced a fierce and hostile cross
examination and in some instances, questions on issues which
were not
relevant or pertinent. I however, do not think that the appellant
materially contradicted himself on relevant issues.
73.
Consequently, I would make the following order:
73.1
The appeal on all convictions and sentences on the three charges is
hereby upheld.
73.2
The convictions and sentences are herby set aside and substituted by:
73.3
The accused is found not guilty and discharged on all the charges.'
M
F GODI
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree,
RG
TOLMAY
JUDGE
OF THE NORTH GAUTENG HIGH COURT
IT
IS SO ORDERED.
POTTERILL
J
74.
I have had an opportunity to read the judgment of my learned brother
Legodi J. I unfortunately can not agree for the reasons
set out
below.
75.
The appellant avers that the court a quo erred in finding that the
State had proved the offences beyond a reasonable doubt.
My brother
finds the version of the appellant reasonably possibly true and
therefore should be given the benefit of the doubt.
76.
I start with the finding on count 3, [that the appellant drove
inconsiderately] to give effect to the chronology of the events.
The
Magistrate was very alive to the fact that the complainant, Mr
Wanyane, was a single witness. He applied the principles that
attract
the evaluation of a single witness and found the witness to have
testified satisfactorily on all material aspects. The
court a quo
also found that the probabilities support the version of the
complainant whereas there are improbabilities in the version
of the
appellant.
77.
The version that the court a quo accepted was that the appellant was
stationary at the intersection. The robot turned green,
he had right
of way and as he was slowly turning at about 20 kilometres per hour
at point C on the map the appellant also entered
Tom Street. He
steered to the left of Tom Street rendering the appellant to pass him
and drive in front of him. He rejected the
version of the appellant
that he never had to stop at the robot and while travelling to the
intersection before he turned the appellant
saw the white vehicle
still approaching. The complainant's vehicle was however still 60
metres off. Just as he turned he heard
a hoot and saw the white car
behind him.
78.
On appeal the credibility finding is not per se attacked, what are
attacked are the probability findings of the Magistrate.
My brother
found that the complainant was not a good witness but then does not
make a finding that the Magistrate erred in accepting
the credibility
of the complainant. He also finds that the appellant did not
materially contradict himself. He also finds the Magistrate
erred on
the probabilities.
79.
The magistrate did not err in accepting the version of the
complainant. On the common cause facts both wanted to turn into
Tom
Street, both did so respectively when the robot was green for them.
It was from the outset clear that the complainant's version
was that
the cutting in of the appellant occurred as "/ was entering in
Tom Street."[P29 line 24]. In cross-examination
he reaffirmed
that it happened when he was at point C as marked on the sketch plan;
"What I know, I avoided the accident when
I was at C. '[P31 line
7]. The magistrate thus accepting the version of the appellant found
that that is where the incident occurred.
I have to disagree with my
brother that on the evidence on the record there was any confusion as
to where the complainant testified
the collision occurred. The
contention that the incident occurred next to the entrance of the
garage is unfounded; nowhere on the
record was there such evidence.
On P33 of the record the representative of the appellant conceded
that there was no evidence that
the complainant turned into the
driveway of the garage to avoid a collision. It is common cause that
the garage occupies the property
from the corner of the intersection
with its entrance only 15 metres further on. For the appellant thus
to say he swerved to the
garage and not the entrance to the garage to
avoid a collision affirms that he swerved to his left where the
garage is situated.
This is in line with his evidence that the
cutting in took place just after he turned into Tom Street in the
vicinity of C on the
plan and had to there swerve to the side of the
garage to avoid a collision. The complainant's version is thus
"fairly simple
and straightforward" It is not complicated
with the evidence that the appellant's car overtook the complainant's
car because
the appellant was the first to turn. The complainant
answered that "After I avoided this collision, it passed by."
The
complainant was busy turning when the appellant turned faster
than he did, the complainant manoeuvred to the left and thus the
appellant overtook his vehicle.
80.
I regret to disagree with my Brother as to his findings on the
leading questions of the prosecutor as set out in paragraphs
15, 16
and 17 of his judgment. It does however seem to be only criticism
because my Brother then made findings on the "leading
questions"
Not one of the questions referred to are leading questions. It is a
run of the mill question to ask whether steps
had to be taken to
avoid a collision and it is so because it does not suggest that he
took steps or what steps he took. The surrounding
circumstances are
also to be taken note of whether to decide whether a question is a
leading question or not. It is common cause
that there was only one
lane in Tom Street. The question whether "the Mercedes Benz had
to cross your lane in order to turn
in the same street as you were
turning into" can only have one meaning i.e. with their being
only one lane the Mercedes Benz
was in the path of travel of the
complainant as on his version he had right of way. In
cross-examination of the complainant this
aspect is cleared up as
being exactly that what was meant. As set out in S v Aitken And
Another 1988(4) SA 394 on p397 at F:
"(T)he
essential notion...of an improper (commonly called a leading)
question is that of a question which suggests the specific
answer
desired.." The appellant had competent representation at the
trial and him not objecting, which he often did, is further
indicative of the fact that they are simply not leading questions.
This is also not a ground of appeal. The answers to these questions
were embroiled upon in cross-examination.
81.
On the facts that were common cause there need be no finding of
whether the
robot was red or green for the appellant and
complainant because it is
common cause that when they respectively
turned the robot was green for
both of them. [This is also not a
ground of appeal]
The
following facts are common cause:
81.1
That the intersection of Tom and Von Weilligh streets is robot
controlled;
81.2
That both the complainant and appellant were travelling in Tom Street
in opposite directions;
81.3
That the complainant wanted to turn left out of Tom street at the
intersection and that the appellant wanted to turn right
out of Tom
street at the intersection for both of them to then proceed North [in
the same direction] into Von Weilligh Street;
81.4
That after both these parties had respectively turned the appellant's
vehicle was travelling in front of the complainant's
vehicle;
81.5
That when the complainant turned the light was green for him and it
was also green for the appellant when he turned. There
is no
suggestion that one of the parties turned while the light was red for
them.
82.
The only grounds of appeal thus to be addressed is whether the State
proved
that the appellant executed his turn when the complainant
had the right of way
to turn and thus acted inconsiderate. The
Magistrate found that on the
probabilities the appellant did
execute his turn when the complainant had a
right of way. The
appellant argued that the measurements of the scene at the
inspection
in loco render the complainant's version improbable. These arguments
are based on the following common cause facts:
82.1
Tom Street is only wide enough for one vehicle to travel in the same
direction, i.e. 4 paces from C-G and 6 paces from C-K.
82.2
On the left hand side of Tom Street there is a cement embankment
higher than the road;
82.3
There is also a drain on the left side of the road.
It
is thus argued that the complainant could not swerve to the left to
avoid an accident with the appellant when the appellant cut
into the
road because he would have collided with the cement embankment. The
road is also too narrow for the appellant to have
cut the corner into
oncoming traffic because on the appellant's version there were two
vehicles stationary in Tom Street preventing
him from crossing over
into the oncoming lane.
The
Magistrate found that there were no other vehicles in the
intersection that could prevent the appellant from encroaching in
the
oncoming lane to execute his turn. His finding is based on the
probability that the complainant was in a position to observe
such
vehicles and did not see same and persisted that there were no such
vehicles. Furthermore the appellant on his version not
having to stop
at the intersection would not have had an opportunity to observe and
reflect upon the Maroon Mercedes he so desired.
He found that would
be only possible if the complainant's version was true that the robot
was red at the intersection. It was placed
on record that C-K is 6
paces and K- G is 4 paces; the argument by the state that the lane in
Tom Street wherein both the partied
were entering is thus 10 paces
wide is correct. There is nothing improbable in the version of the
complainant that both vehicles
could enter into that space with the
complainant hugging the left. This would be so even if there were
other vehicles at the intersection.
83.
One however has to look at the evidence as a whole and if the
version of the appellant is reasonably possibly true then the
state
did not prove its case beyond reasonable doubt. The appellant
testified that as he approached the intersection the traffic
light
was green for him. He saw a white car approaching but it was 60 paces
away and therefore he turned to his right into Tom
Street. At the
inspection loco the 60 paces was reduced to 37 paces. He confirmed
his statement that "as soon as I turned
I heard a car hooted
behind me. When I looked in my rear view mirror I noticed that it was
the same vehicle which was now driving
behind me." It is common
cause that the appellant was driving a Mercedes Benz C200 Sports
Package; pleading ignorance as to
whether it is a fast vehicle is
incorrigible. On his own version he turned without impeding the
complainant yet "as soon as
he turned" he heard a hoot.
This is corroboration for the complainant's version that the
complainant's vehicle was not 37
paces away. The Magistrate was
correct in rejecting this version on the probabilities. He drove a
sports vehicle and turned when
the complainant had a right of way to
do so; thus driving inconsiderately. The appellant is a director in
the police and had a
degree in law and is an admitted advocate; an
educated man. He was evasive as to what speed he was travelling as he
was turning.
To expect a witness to pin point a speed is not
reasonable, but not to commit him whether he was travelling lower or
higher than
60 kilometres per hour is telling. It is telling that
with his sports vehicle he was travelling fast as the complainant
testified,
"dicing." The complainant explained that he did
not mention the speeding because he was never asked about the speed
of
the appellant's vehicle in examination in chief. This was not a
new version. For the appellant to have cut in front of the
complainant
his speed would need to be higher than the complainant's
due to the distances. The appellant was not prepared to give any
evidence
as to his speed. There is accordingly no evidence to the
contrary of the complainant's as to the speed of the appellant. The
version
of the appellant on the totality of the evidence is so
improbable as to be rejected as not being reasonably possibly true.
On the
appellant's version the complainant was 37 paces away from the
intersection, had to negotiate a turn and yet was behind the
appellant
just after the appellant had turned into Tom Street.; this
renders the state version probable and proven beyond a reasonable
doubt.
84.
It is also with regret that I can not agree with my Brother on the
finding on count 2; crimen iniuria. It is common cause that
at the
next stop sign in Tom Street the complainant moved to the right of
the appellant's vehicle rendering him to encroach in
the oncoming
lane. There is no evidence that there was oncoming traffic or traffic
that he did in fact impede. When the window
of the appellant's
vehicle was open the complainant said to the appellant in the
appellant's own words "H/s first words were
hey you, how do you
drive why do you drive in front of me" [P277 lines 16 and 17 and
p203 Iine11]. The complainant then testified
that the appellant then
uttered the words "Polo ya gago" which translated means"
your penis." He testified
that he found the words to be hurtful
especially coming from a police officer and that after the
police-officer had cut in front
of him. It is common cause that they
travelled from that stop to the next stop sign and the appellant
testified that he then told
the complainant that he is causing
himself a heart attack. The appellant testified that the complainant
retorted that because the
appellant is a policeman he thinks the
complainant is afraid of him but he will hit the appellant. The
appellant at that second
stop sign turned to his left. The
complainant turned to the right but executed a u- turn to follow the
appellant.
86.
The Magistrate confirmed his finding that he found the complainant to
be a truthful and honest witness who did not exaggerate
the
Appellant's roll in the commission of the crimes. On behalf of the
appellant it was submitted that the State did not prove
all the
elements of crimen iniuria although this was not expanded on. It was
also submitted that the complainant did not muster
the test for a
single witness and it was improbable that a police officer would
insult the complainant in full uniform under circumstances
where he
could be easily identified. It was also not probable that the
complainant would have been in a position to hear the uttered
words.
87.
The appellant was found guilty for uttering the words Tola ya gago"
and not for the words "fuck off." To be
found guilty of
crimen iniuria there has to be serious infringement of one's dignity.
The test is subjective and the complainant
testified that
subjectively he was hurt and affronted. The words complained of must
however also objectively have offended a reasonable
person. It is not
a ground of appeal that the words uttered would not have seriously
infringed a reasonable person's dignity and
I need not address this
any further. I do however disagree with my Brother if his finding is
that "Fuck off is more serious
than "Your Penis." In
society today "Fuck off is a swear word generally used and in
law classified as "vulgar
abuse" which can only constitute
crimen iniuria if very serious. [See S v S 1964(3) 319 TPD] Referring
to one's private parts
however does not constitute vulgar abuse,
refers to an intimate part of a man's body and need only be serious
to constitute crimen
iniuria.
88.
It is common cause that the appellant was confronted at the next
stop street because of the appellant's driving and specifically
of
his driving in front of the complainant. The appellant understood
that this is what the complainant is confronting him with,
although
appellant did not see anything wrong with his driving because he
testified he gave the complainant enough time to turn
in after him.
It is not a probability that the complainant would not have heard the
words because the vehicles were far apart with
both cars engines
running. This argument renders the appellant's version that he could
hear the complainant talking and threatening
him also improbable. It
is not a probability on the facts that a policeman would not insult a
person when one can be identified;
crimen iniuria can only be
committed fact to face. The appellant is legally trained, a fact from
which an inference can be drawn,
and would know that often
complainants and prosecutors will not pursue a criminal trial for
crimen inuaria as it always is a "
he say, she say situation."
On the facts that are common cause the appellant as a police officer
did in a public place struggle
with and slap the complainant. It is
thus not improbable that he in public being identified would attack
the dignitas of the complainant.
The appellant in his statement also
wrote that the complainant had told him in the Steers that "And
he was also accusing me
of insulting him or calling him with his
private parts" [P291 lines 16-17]This was not a new story it was
already alluded
to at the Steers.
89.
I agree with the Magistrate that the appellant was not a credible
witness. It is put to the complainant in cross-examination
by
appellant's legal representative that the appellant told the
complainant to fuck off. The appellant then in cross-examination
denied that he said fuck off to the complainant, this despite the
statement written by himself wherein he confirmed that told the
complainant to fuck off. This is not the testimony of a credible
witness. I can not agree with my Brother who now accepts that
the
appellant did in fact utter those words, but not "your penis."
90.
From paragraphs 41 and 42 of my Brother's judgment it is apparent
that he accepted the version of the appellant as being reasonably
possibly true and seemingly rejected the complainant's version based
on the personality of the complainant. The finding is that
the
complainant was supposed to be deterred from any further conduct
against the appellant because by then he knew the appellant
was a
police official. I do not know on what evidence or law this is based
as it is clear that nobody is above the law, in fact
one would
especially expect a police official to adhere to the laws of the
country albeit it road traffic laws and the dignity
of a fellow human
being. My Brother accordingly accepted that the complainant did say
that he would hit the appellant. In paragraph
37 my Brother goes so
far as to find based on the personality of the complainant that
although the complainant was still a distance
from the robot the
complainant would have expected the appellant to wait for him. He
finds the complainant to be angry and persistent.
I agree that the
complainant was persistent in calling the police official to order.
He was angry and hurt that a police official
cut in front of him and
then infringed his dignity. The anger at the police station is even
more so justified, it is common cause
that he was slapped so hard by
a police man in public that his gum bled and his spectacles broke.
The persistent nature of the
complainant is not justification for the
appellant's conduct and he is not on trial. The complainant's nature
on the day was combative,
but did not render his version improbable.
91.
It is common cause that the appellant did assault the complainant by
slapping him. The appellant however submitted that this
was done in
self-defence. It is also common cause that the slapping took place
while the appellant and complainant were struggling
over the camera.
The appellant wanted to take the camera from the complainant because
he did not want his photo to be developed.
The appellant accordingly
in his heads submitted that the appellant had the right to protect
his personality rights. This is so
because as a policeman he did not
know what the photograph could be used for, perhaps a hit list and
there are many police killings.
The appellant averred the Magistrate
erred in finding "Any person would have been concerned at the
fact of the photos being
taken without their consent", yet
finding him guilty of assault. The appellant also relied on putative
self-defence in the
alternative.
92.
The Magistrate found the appellant guilty of assault because he
rejected the version of the appellant that he was going to be
tripped
by the complainant, thus being overpowered and therefore slapping him
was unjustified. He rejected this version because
the complainant is
a cripple and if he uses one leg to trip then he has no other
effective leg to stand on and not fall himself.
He also relied on the
evidence of Mister Mofebatsi and Ms Bobejang that the complainant at
that stage uttered that he is not fighting
the appellant and
accordingly there was no apprehension of danger and therefore could
not raise the issue of self-defence.
93.
My Brother accepts the version of the appellant that he was being
tripped, consequently overpowered and therefore had the right
to act
in self-defence. I regret that I can not agree with this finding. I
can not find that the magistrate erred in accepting
the version of
the complainant. The appellant averred he acted in self defence
because he realized the complainant would trip him
and then he would
be overpowered. If he was not going to be tripped he would
accordingly not be overpowered and then there is no
self-defence. It
is common cause that the complainant is big of posture, bigger than
the appellant. It is also common cause that
the complainant is a
cripple and the chairman of the disabled people in Ekageng. The
undisputed fact that the complainant is a
cripple renders the
inference the Magistrate drew that a cripple with one bad leg would
not trip probable. In fact it not only
an inference, it accorded with
what the complainant testified to when confronted with the tripping
as follows:
"Your
Worship, I do not know when he said he was trying to [inaudible] me
because I have got only one [leg] that can be strong
enough to
balance. What I am saying to this court, he slapped me twice."
[P84 lines 15-18] and "At no stage did I trip
the accused."[P84
line 23]
The
findings of my Brother in paragraphs 62 and 63 effectively find that
the appellant is not a cripple because he was not using
a walking
stick and that no cripple will threaten a person or have courage to
go to a police station and shout. I can not reconcile
myself with
such findings in general and especially not on the common cause facts
of this case. The appellant's representative
accepts the fact that he
is a cripple: (Ja. Whether you have one leg which is not proper or
not is besides the point.. ."[P84
line 20] He did so as it was
common cause.
95.
The appellant did not address us on the supplementary heads and I
accordingly do not address these arguments.
96.
The appellant and the respondent where not afforded an opportunity
to address us on the sentences but I can not find that the
Magistrate
erred in that the sentences induce a sense of shock.
100.
I accordingly find that the appeal against the convictions and
sentences are to be dismissed.
POTTERILL
JUDGE
OF THE NORTH GAUTENG HIGH COURT