About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2011
>>
[2011] ZAKZPHC 4
|
|
Simelane v S (AR 441/10) [2011] ZAKZPHC 4 (2 March 2011)
IN THE
KWAZULU-NATAL HIGH COURT, PIETERMARITZBURG
REPUBLIC OF
SOUTH AFRICA
Case No: AR
441/10
In the matter
between:
BATHOBILE
MARGARET SIMELANE
…................................
APPELLANT
and
THE STATE
….....................................................................
RESPONDENT
JUDGMENT
Delivered on: 2 March 2011
NKOSI
AJ
[1] The Appellant
was convicted in
the Magistrate’s Court, Newcastle
of
Assault with intent to do grievous bodily harm and sentenced to a
fine of R3000.00 or to undergo 6 months imprisonment of which
one-half was conditionally suspended for a period of five years.
BACKGROUND FACTS
The salient
features of the complainant’s evidence are as follows:
[2] On 24 August 2009 she
proceeded to the S.E Vawda Primary School after her child was sent
home from school. At the school the
principal was not present. On
advice by the deputy principal she spoke directly with the Appellant
whom she located in the staff
room. Upon a discussion with the
Appellant regarding her child the complainant directed they both go
to the deputy principal to
discuss the matter. The Appellant did not
co-operate. Instead the Appellant grabbed her on her left shoulder
and poked her in her
face with a finger. She retaliated by doing the
same to the Appellant. Thereafter, the Appellant pulled her,
resulting in both
falling to the ground with the Appellant landing on
top of her.
[3] The Appellant rose,
grabbed her by the neck from behind, dragged her to a table where
there were mugs and other items and hit
her on the back of her head
with a mug. When she realised that she was bleeding, she caught the
Appellant by the hair, causing
the Appellant
’
s
wig to fall off. While the Appellant retrieved her “hair”
,
she walked away and began to phone the police on her cellphone. The
Appellant then grabbed another mug which she threw at her
striking
her on the back of her head. The other teacher, Mrs Orrie, then
arrived and separated the two. The complainant was subsequently
examined by Dr Waite, who according to her testimony did not
physically examine her to observe the injuries to her head but only
asked where she was injured.
[4] Tasha Combrink
testified and confirmed that the verbal argument ensued between the
complainant and Appellant in the staff room.
However, when she
observed the two grab each other, she left the staff room to seek
help. Upon her return to the staff room, she
observed broken cups on
the floor and saw the complainant bleeding from both sides of her
head behind the ears. The Appe
llant’s
wig
was lying on the
floor.
Rhekea Orrie testified and
confirmed that she intervened in the confrontation between the
complainant and Appellant who were standing
near the table. Appellant
was holding a cup in her hand. She observed that the complainant was
bleeding down her neck and the Appellant
was injured in her hand.
[5
]
The Appellant’s version
is
that she acted in self defence on the day in question and she denies
striking the complainant with a mug at any stage.
[6] The learned Magistrate
in the Court
a
quo
found the
complainant to be an honest and reliable witness whose evidence had
to be believed, while he rejected the version of Appellant
that she
acted in self-defence as implausible and her act as excessive.
[7] The Appellant now
appeals before this Court against both the conviction and sentence,
leave having been granted by the Court
a
quo
.
ISSUE
[8
]
It is common cause that there was a “fight” between the
complainant and the Appellant in the staff room of S.E. Vawda
Primary
School,
on 24 August
2009. It is also common cause that during the aforesaid fight, the
complainant sustained two lacerations on the scalp
of her head. It is
further common cause that the Appellant pleaded a private defence
during the trial.
[9] The main issue on
appeal, in my view,
is
whether the Appellant acted with an unlawful intent to do the
complainant grievous bodily harm. Closely connected to the main
issue
is – what were features or characteristics of the injuries
sustained by the complainant and wher
e
were those injuries located on her head?
[10] Both counsel submitted
written Heads and addressed the Court on the merits of the appeal. I
must hasten to state that this
appeal will be decided on a narrow but
critical point, namely, the lack of crucial evidence, in particular
the medical evidence,
to prove the case against the Appellant beyond
a reasonable doubt. The arguments and submissions made by both
counsel will, therefore,
not be traversed in full, save to illustrate
relevant points in the judgment.
[11] Counsel for the
Appellant was of the view that the findings of the learned Magistrate
were inconsistent with the facts placed
before him. The learned
Magistrate committed a number of errors on facts and law and
consequently drew wrong conclusions from the
evidence led during the
trial.
[12] Counsel for the
Appellant submitted on the conviction that the Court
a
quo
in
its assessment of the complainant’s evidence failed to take
into account that
the
evidence of the complainant as to the location of injuries sustained
on the date in question was in conflict with that of the
doctor. (Par
5(a) of the Heads). He also submitted that the Court misdirected
itself by using its outside knowledge of the inaccuracy/tardiness
of
the doctor when examining patients without calling the doctor himself
in terms of Section 186 of the Criminal Code. (Par 6 of
the Heads). I
agree with the above-mentioned submissions for reasons that will
become evident later in the judgment.
[13] Counsel for the
Respondent, in her disavowal of the earlier submission made in the
Heads,
conceded
that doctor’s
viva
voce
evidence
was critical in the just decision of the case. She, however, was of
the view there was sufficient evidence to prove injuries
on the
complainant and that Appellant was the aggressor.
[14] It is a trite
principle that in criminal proceedings, for the prosecution to
succeed, the State must prove its case against
an accused beyond a
reasonable doubt. In the corollary, a Court does not have to be
convinced that
every
detail of an accused’s version is true, as long as such a
version is reasonably possibly true in substance. It is also
improper
for a Court to reject an accused’s version merely because it is
improbable unless such version can be said to be
so imp
robable
that it cannot be reasonably possibly true. See
S
v Shackell
2001(2)
SACR185 (SCA) par [30], and
S
v V
2000(1)
SACR153 (SCA) par [3].
[15] I now turn to the
merits of the appeal.
[16]
In
this case, the State’s case rested profoundly on the evidenc
e
of a single witness, the complainant, as to the actual assault. It is
a well-known judicial principle that the evidence of a single
witness
should be approached with caution, his or her merits as a witness
being weighed against factors, evident in the entire
body of
evidence, which militate against his or her credibility. (See
Stevens
v S
2005 [1] All
SA 1 (SCA) at 5d-e).
[17] In my view, there is
no clear evidence in the judgment that the learned Magistrate did
weigh the merits of the complainant
as a witness against any factor
which militated against her credibility. An appraisal of all the
relevant facts of the case, does
show that such factors do exist,
insofar as they contradict the complainant in her version of how she
sustained the injuries. There
will be no specific reference made to
such factors in order to demonstrate the point because it would not
be decisive of the issue
at hand.
[18] A disquieting feature
in the judgment of the Court
a
quo
is that the
learned Magistrate chose to ignore a vital piece of evidence properly
placed before him. In this regard, the words of
Nugent J, (as he then
was) in
S v Van
der Meyden
1999(1)
SACR 447 (W) at 449 j-450b are apposite. He said the following:
“
The proper test is that an
accused is bound to be convicted if the evidence establishes his
guilt beyond reasonable doubt, and the
logic corollary is that he
must be acquitted if it is reasonably possible that he might be
innocent. The process of reasoning which
is appropriate to the
application of that test in any particular case will depend on the
nature of the evidence which the Court
has before it. What must be
borne in mind, however, is that the conclusion which is reached
(whether to convict or acquit) must
count for all the evidence. Some
of the evidence might be found to be false; some of it might found to
be unreliable; and some
of it might be found to be only possibly
false or unreliable; but none may simply be ignored”.
[19] The learned Magistrate
ignored the medical evidence adduced by Dr Waite, on the basis of his
previous experience with him,
by taking an improper judicial notice
of an alleged un
palatable
practice. Even if the learned Magistrate’s personal
observations of the doctor’s alleged misconduct were correct,
this fact
could not
have been sufficiently notorious to be capable of judicial notice and
could not entitle him to breezily circumvent such
an important piece
of evidence which contradicted the complainant on a very material
aspect of her testimony, namely, the position
of the injuries
sustained.
[20] I agree with the
counsel for Appellant, that the proper approach would be for the
Court to exercise its powers in terms of
section 186 of the Criminal
Code and call the doctor to establish whether there was inaccuracy or
tardiness in examining the complainant
as she claimed. The oral
evidence of the doctor would have been important for another reason
as well, that is, to establish the
characteristics of the injuries
sustained by the complainant in order to determine whether they were
inflicted with the use of
a mug or any other object. Lacerations
manifest in many forms. It could not be assumed they were only
consistent with the manner
testified to by the complainant.
[21] The evidence adduced
left a number of reasonable possibilities. The complainant could have
been injured in the staff room when
falling over the chair, could
have knocked against a corner of the table where the wrestling took
place, could have been injured
with a mug during the wrestling or
could have been injured by broken pieces of a mug(s) on the table
while grappling with the Appellant.
[22] The doctor
’
s
evidence might have confirmed or excluded other possible causes and
place the learned Magistrate in a better position to make
an informed
decision on the issue. The Appellant
’
s
evidence that there were broken pieces on the table
was
not pertinently challenged. Without clear evidence of exactly where
the pieces were located in the room, it cannot be said that
her
version is far-fetched. There was no expert evidence which excluded
the Appellant
’
s
version of how injuries
might have been inflicted.
[23] The reasonable
inference which the learned Magistrate purported to draw from the
location of the Appellant
’
s
injuries in her hand does not exclude other r
easonable
inferences or possibilities save the one drawn. [
R
v
Blom
1939 AD 188
at 202-203 and
R v De Villiers
1944 AD 493
at 508-509].
The Appellant
’
s
version that she sustained the injuries during the struggle for
possession of a mug is not
implausible
and cannot be discounted as unreasonable and remote. In the absence
of expert evidence by the doctor who examined the
Appellant
’
s
injuries
, the
learned Magistrate could not draw any adverse inference based purely
on his imagination and or speculation of how the Appellant
might have
sustained the injuries which she sustained.
[24] I am, therefore, of
the view that the learned Magistrate should have entertained a doubt
in favour of the Appellant. In the
result, the appeal against the
conviction must succeed.
[25] Accordingly, the
following order is made:
1. The Appeal against the
conviction of assault with intent to do grievous bodily harm is
upheld.
2. The conviction and
sentence of the Court
a quo
is set aside.
__________________
NKOSI AJ
I agree.
__________________
BALTON J
Date of Hearing: Thursday,
10 February 2011
Date of Judgment: 2 March
2011
For the Appellant: Mr Mvune
Instructed by:
For the Respondent: Ms
Ngcobo
Instructed by: Director of
Public Prosecution (DPP)
Johannesburg