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[2010] ZAFSHC 138
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Labuschagne v S (A79/2010) [2010] ZAFSHC 138 (28 October 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: A79/2010
In the appeal between:
COBUS LABUSCHAGNE
….....................................................
Appellant
and
DIE STAAT
…........................................................................
Respondent
_____________________________________________________
JUDGMENT:
RAMPAI, J
et
MOLEMELA, J
_____________________________________________________
DELIVERED ON:
MOLEMELA, J
_____________________________________________________
HEARD ON:
6
SEPTEMBER 2010
DELIVERED ON:
28 OCTOBER 2010
[1] This is an appeal
against a conviction on a charge of common assault.
[2] The facts on which
the conviction was based were as follows: The appellant was the
complainant’s employer for about 4½
months, during which
period they enjoyed a harmonious relationship. The workplace was
situated at a plot which also served as the
appellant’s place
of residence.
[3] On the day of the
incident the complainant was working in the workshop. While using a
hammer to fix a trailer, he realized that
he needed some bolts. The
bolts were placed under a tree close to the appellant’s house.
[4] It is common cause
that there were dogs on the appellant’s premises. According to
the complainant, the dogs pounced on
him before he could reach the
tree where the bolts were placed. He warded them off by waving the
hammer. He did not hit or injure
any of the dogs.
[5] According to the
complainant the appellant then assaulted him by hitting him with a
clenched fist on the forehead and on his
jaw and also kicked him on
his ribs. As a result of the blow on the jaw, he sustained injuries
to his teeth, which bled and became
painful and lose. He also felt
pains in the ribcage area. The appellant offered him pain tablets,
which he took.
[6] He later complained
to the appellant that he was still bleeding and experiencing pain. He
informed the appellant that he needed
to see a doctor. He left the
workplace and went to the police station where he reported the
matter. He was handed a J88 form and
took same to the clinic. He
received medical attention, after which the J88 form was completed.
He was told that information was
stored on the computer. He did not
know that he was supposed to return the J88 form back to the police
station.
[7] The appellant’s
evidence was that on the day of the incident he was in his office
when he heard his dogs barking. He also
heard his wife reprimanding
the dogs. He looked out through the window and noticed the dogs
moving in the complainant’s direction.
He heard one of the dogs
howling and saw the complainant holding a hammer and pulling his hand
backwards. He heard his dog howling.
He stepped out of his office and
shouted at the complainant, asking him whether he would like it if he
(the appellant) hit him
with a hammer. He intended disarming the
complainant of the hammer so as to prevent him form hitting the dogs
again. The two of
them wrestled for the hammer until he eventually
managed to disarm the complainant of it. He threw the hammer on the
ground and
then went back to his office.
[8] It is common cause
that the state did not tender any medical evidence. The appellant’s
counsel argued that the court
a quo
ought to have drawn a
negative inference from the state’s failure to do so. The
appellant’s counsel further argued
that the fact that (i) the
appellant was only arrested a month and a half after the incident,
(ii) that the complainant continued
to work for the appellant for a
month after the incident and (iii) that he failed to attend the
unfair dismissal hearing at the
CCMA all served to cast doubt on the
complainant’s version, especially considering the fact that the
complainant was a single
witness.
[9] It is trite that the
court of appeal will not tamper lightly with the court
a quo’s
credibility findings. It is indeed so that the complainant was a
single witness. It is clear from the court
a quo
’s
judgment that it was mindful of this aspect and applied the necessary
caution. The complainant’s version was credible
and bore no
contradictions. There were also no inconsistencies in his evidence,
despite the fact that the court
a quo
remarked that it was
baffled by the fact that the complainant continued working for the
appellant for another month after the assault.
On this point I must
hasten to mention that this aspect was never put to the complainant
during cross-examination and emerged for
the first time during the
defence case. At no stage did the complainant testify that he carried
on working for the appellant for
another month after the assault. His
evidence was that he reported the matter to the police on the same
day. The case reference
number lends credence to the complainant’s
version on this aspect, as it shows that the docket was opened during
January,
the same month of the assault. In my view, the complainant’s
version was satisfactory in all material respects.
[10] I am of the view
that the fact the appellant was only arrested a month and a half
after the incident is neither here nor there
and did not strengthen
the appellant’s version in any way. The same applies to the
fact that the complainant did not attend
the proceedings at the CCMA,
for which he gave a perfectly plausible explanation.
[11] While it is indeed
so that no medical evidence was adduced, this in my view does not in
itself suggest that the complainant
did not sustain any injuries. I
agree with the state counsel that the fact that the appellant
admittedly gave the complainant pain
tablets shortly after the
incident somehow serves as corroboration of the assault and
infliction of the injuries. Furthermore,
it is clear from the
evidence that the complainant was a simple unsophisticated person and
thus his evidence regarding why he did
not take the J88 form back to
the police was plausible.
[12] There was no reason
for the appellant to disarm the complainant of the hammer when there
were apparently no injuries inflicted
on the dogs, especially as the
appellant did not witness the complainant hitting the dogs but only
inferred that he had done so
when he saw him pulling his hand back
and hearing the dog howling. The appellant’s own version was
that the dogs were storming
at the complainant and the appellant’s
own wife had to reprimand them. This behaviour on the part of the
dogs is incompatible
with the appellant’s version that the dogs
were not vicious and posed no threat to the complainant. In my view,
the court
a quo
correctly found that the complainant was well
within his rights to protect himself against the dogs.
[13] The appellant’s
version was not one that could be described as reasonably possibly
true. He contradicted himself on the
aspect relating to the exact
stage at which the dogs left the scene. He also contradicted a
version put on his behalf during cross-examination
which stated that
that he actually saw the complainant hitting the dogs, and that after
disarming the complainant, he pushed him
to the ground (see p. 16
line 19 and 17 of the record, line 4 – 14). His denial of the
evidence that criminal charges were
laid on the same day was also not
put to complainant during cross-examination for his comment. The
court
a quo
thus correctly found that the state had proven its
case beyond reasonable doubt. There is therefore no reason to tamper
with the
conviction.
[14] I would therefore
make the following order:
1. The appeal against
conviction fails.
2. The conviction is
confirmed.
3. The sentence stands.
__________________
M. B. MOLEMELA, J
I concur.
_______________
M. H. RAMPAI, J
/EB