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2009
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[2009] ZAGPPHC 344
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S v Mushuwana (A113/09, 67, 22/2008 (Nkowankowa), C308/2008) [2009] ZAGPPHC 344 (8 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
NOT
REPORTABLE
DATE:
8 DECEMBER 2009
CASE
NO: A113/09
High
Court Ref no: 67
Magistrate
s Serial No: 22/2008 (NKOWANKOWA)
Review
case no: C308/2008
In the matter between:
THE STATE
and
GN MUSHWANA
REVIEW JUDGMENT
RABIE J:
1
.
The accused was convicted on 3 December
2008 on a charge of assault with the intent to do grievous bodily
harm and sentenced to
12 months imprisonment.
2.
When the matter came on review, the
learned reviewing Judge made certain enquiries relating to the
question whether the accused
was property convicted and more
particularly with reference to the probabilities of the case and to
the reason for rejecting the
evidence of the witness testifying on
behalf of the accused.
3.
The magistrate responded to the query
and submitted that the conviction was in order.
4.
The evidence on behalf of the
prosecution was that on the night in question the accused was setting
in the Mojebo's tavern drinking
liquor when the accused, the owner of
the tavern, suddenly and without reason attacked the complainant,
throttled him and stabbed
him several times on the head with a knife.
The complainant was the only witness on behalf of the prosecution
5.
The accused had quite a different story
to tell regarding the events of this particular night He testified,
inter alia, that at
some point when he went into the tavern, he saw
the complainant who was quite intoxicated at the time, chasing
another person around
the snooker table and smashing other people's
beer bottles in the process. The complainant was in an aggressive
mood. The accused
confronted him and reprimanded him for fighting in
the tavern. The complainant did not take kindly to this and waved the
knife
which he had in his hands, at the accused. The accused grabbed
for the knife and a struggle ensued Both of them fell to the ground
and at some point the accused succeeded in disarming the complainant.
At some point they got to their feet again with the accused
holding
the complainant by his T-shirt The accused saw blood on the
complainant. The next moment the complainant broke free and
ran away.
The accused picked up the knife and threw it away. The accused's
version was that he wanted to disarm the complainant
and that he
never intended to stab the complainant.
6.
Mr Papitjie Morasetla testified on behalf of the accused and
corroborated the version of the accused.
7.
The Magistrate found that Mr Morasetla
did not corroborate the version of the accused *in a material sense"
and that there
were material contradictions in their evidence. He
furthermore found that Mr Morasetla “was coached as to what he
was to
testify about". The magistrate then made the finding that
the evidence of the Morasetla was not true and that the evidence
of
the accused was not reasonably possibly true.
8.
I respectfully disagree with the views
held by the Magistrate. The reasons given by the magistrate at the
time as well as in his
recent response have no foundation and cannot
be upheld. The suggestion that the witness was unduly influenced by
the accused to
give the evidence which he did, similarly has no
foundation whatsoever and should be rejected.
9.
The accused and his witness corroborated
each other in respect of all material aspects and there is simply no
reason to reject that
version. The probabilities are in any event in
favour of the version of the accused. The sudden and unprovoked
attack by the owner
of a tavern on an unsuspecting and well- behaved
guest, as the complainant would have it, appears to be rather
improbable.
10.
Having regard to all the evidence I am of the view that the version
of the accused and his witness cannot be rejected, that
the accused's
version is reasonably possibly true and that consequently he should
not have been convicted
11
.
In the result I make the following order
1.
The conviction and sentence are set aside and replaced by the
following "The accused is found not guilty".
C.P.RABIE
JUDGE OF THE HIGH
COURT
I agree
G. WEBSTER
JUDGE OF THE HIGH
COURT