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[2009] ZANCHC 3
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S v Van Schalkwyk (CA&R 75/08) [2009] ZANCHC 3 (13 February 2009)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: CA&R 75/08
Delivered:
13/02/09
In
the matter between:
ANDREW
VAN SCHALKWYK
VERSUS
THE
STATE
Coram:
Majiedt J et Tlaletsi J
JUDGMENT ON
APPEAL
Tlaletsi
J:
[1]
This
is an appeal against the appellantâs conviction on a charge of
assault with intent to cause grievous bodily harm on 6 May
2008 by
the district court at Kakamas. The appellant was subsequent to his
conviction sentenced to three years imprisonment half
of which was
suspended for a period of five years. The appeal is with leave of
the trial court.
[2]
The
allegations against the appellant were that on 9 June 2007 he stabbed
Johannes Kotze (âthe complainantâ) with a knife with
intent to
cause him grievous bodily harm and did thereby cause him certain
injuries. The appellant, who was legally represented
throughout his
trial, pleaded not guilty to the charge. He also exercised his right
to remain silent and tendered no plea explanation.
[3]
The
respondentâs case may be summarized as hereunder. The complainant
testified that he was on the night of the incident at
the community
hall where he together with other people had been dancing. In the
process he consumed 7 bottles of 750ml of beer.
He conceded that he
was under the influence of alcohol. He mentioned that he could
however understand what was going on around
him. At about 22:15 he
left the hall for home. He walked past a yard where there were
people involved in an argument. He testified
that the appellant was
also involved in that argument. As the complainant was walking, the
appellant left these premises and came
to him. Appellant asked him
for a cigarette. He told him that he did not have cigarette on him
but had one at home. He testified
that the appellant then pushed
him. He thereafter took out a knife out of his right back pocket and
stabbed him once on the left
side of his neck. With same attack, he
continued, the knife scratched him on his lip as he retreated. The
complainant then ran
into the motor vehicle that was parked nearby.
He locked himself inside the motor vehicle together with the driver
who was sitting
behind the steering wheel. The driver could not see
him as he was asleep having given in to the effects of alcohol.
[4]
The
complainant testified that as he was still inside the motor vehicle
the second state witness, Mieta Heyn, arrived. She observed
his
condition and called other people for assistance. A certain Coetzee
also came and knocked on the window. The complainant
opened the door
of the motor vehicle. He was taken to hospital for medical help.
[5]
It
was put to the complainant during cross-examination that the
appellantâs version would be that the complainant had been inside
the motor vehicle and got out of the motor vehicle and aggressively
threatened the appellant. The two stared at each other.
The
complaint then put his hand in his pocket as if he was taking
something out. The appellant, goes the statement, thought that
the
complainant was taking a knife out of his pocket and the appellant
quickly took his own knife out of his pocket and pushed
the
complainant backwards. He pushed him with his hands whilst holding
his knife. He thereafter noticed that the complainant
was bleeding
on his neck. He believed that he could have stabbed him with a knife
but did not know exactly how it happened. This
version was denied by
the complainant. The complainant explained that he could not do so
as he was wearing tracksuit pants which
had no pockets.
[6]
Mieta
Heyn testified that she is a friend to the complainant. She also
knew the appellant very well as he is her boyfriendâs
cousin. She
mentioned that at the time of the incident she was at one Elizabeth
Van Rooyâs house in Celliers. She saw the complainant
walking past
the yard towards a motor vehicle. The appellant who had been on the
same premises with them walked to the complainant.
She noticed that
there was an exchange of words. She saw appellant push the
complainant. She did not see anything in the appellantâs
hands.
She testified that the complainant had his back towards her and the
appellant was facing towards her direction in front
of the
complainant. After pushing him the appellant returned to the yard.
She noticed that the appellant was having an open knife
(and its bag)
in his hands. She immediately went to the motor vehicle. She found
the complainant inside the motor vehicle full
of blood on his chest.
She also noticed that the owner of the motor vehicle was sleeping
inside the motor vehicle. She called
the complainantâs relatives.
The complainant was taken to hospital. What was to be the
appellantâs version was also put to
her. She replied that she did
not see the complainant threaten the appellant. She confirmed that
they were both drunk. She also
mentioned that the appellant was not
involved in any argument on the premises. It was not disputed that
there were high mast lights
illuminating the entire area where the
incident took place.
[7]
At
the close of the state case the appellant closed his case without
tendering any evidence. The magistrate found the two state
witness
to be impressive, honest and reliable. He also found the only
contradiction in the state case relating to whether the
appellant was
involved in an argument at Elizabeth Van Rooyâs house to be
immaterial. The Magistrate held that the state had
proved its case
beyond reasonable doubt.
[8]
The
grounds of appeal relied upon to challenge the conviction are that
the magistrate erred by finding that the state had proved
its case
beyond a reasonable doubt and that the appellantâs version is
reasonably possibly true.
[9]
Mr
Van Tonder, who appeared on behalf of the appellant before us,
submitted that the complainant must have been strongly under
the
influence of alcohol after consuming the amount of liquor he admitted
having consumed and that his evidence should therefore
not be relied
upon.
[10]
It
is a trite principle of our law that an accused person has a right to
be presumed innocent, to remain silent and not to testify
during
criminal proceedings against him or her. Failure to testify can not
on its own be reason enough to find him or her guilty
of the offence
charged for. It remains the duty of the state to establish the guilt
of the accused beyond a reasonable doubt.
Where an accused person
chooses to remain silent in the face of evidence calling for an
answer, a court may well be entitled to
conclude that the evidence is
sufficient in the absence of an explanation to prove the guilt of the
accused. However, a failure
to testify will not in the absence of
credible implications against the accused remedy a deficiency in the
state case. See:
S
v Francis
1991(1)
SACR 198(A) at p203 H-I and
S
v Boesak
[2000] ZACC 25
;
2001
(1) SACR 1(CC)
at 11 D-F.
[11]
I
find no fault with the acceptance by the magistrate that though the
complainant admitted that he had consumed alcohol, he was
not drunk
to the extent that he could not realize what was happening. There
was also no evidence to challenge the complainantâs
evidence that
he was able to understand and appreciate what was happening around
him. It was common cause that the appellant is
the one who stabbed
the complainant after pushing him. The pushing was also seen by
Mieta Heyn. The complainantâs evidence
that he was wearing
tracksuit pants and as such did not have pockets from which he could
have attempted to take out a knife remains
the only credible
evidence on record which was not even controverted.
[12]
I
am therefore of the view that the magistrate did not misdirect
himself and correctly found that under the circumstances of this
case
the guilt of the appellant had been established beyond a reasonable
doubt. The appeal therefore falls to be dismissed.
In the result I make
the following order:
The appeal is
dismissed and the conviction of the appellant is confirmed.
___________________
L
P TLALETSI
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
concur
_____________________________________
S
A MAJIEDT
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the State: Mr Kgathwe
Instructed
by: Director of Public Prosecutions
For
the Accused: Mr Cloete
Instructed
by: Kimberley Justice Centre