Hoogstander v S (CA&R58/09) [2009] ZANCHC 80 (20 November 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2009
>>
[2009] ZANCHC 80
|

|

Hoogstander v S (CA&R58/09) [2009] ZANCHC 80 (20 November 2009)

Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
HIGH COURT, KIMBERLEY)
Case No: CA&R
58/09
Heard on:
09-11-2009
Delivered:
20-11-2009
In the matter between:
CHRISTOPHER
HOOGSTANDER
Appellant
and
THE STATE
Respondent
CORAM: KGOMO JP et
MJALI AJ
JUDGMENT
ON APPEAL
MJALI AJ:
Arising out of an
incident which occurred under the first Transvaal Road Bridge (“the
bridge”), Kimberley, in the morning of
11 December 2005, the
appellant and his co-accused (“companion”) were prosecuted in
the regional court, Kimberley, on two counts
of robbery, assault and
attempted rape. He was convicted on one count of robbery as well as
attempted rape and was sentenced to
5 years imprisonment for robbery
and 3 years for attempted rape. He now appeals against both his
conviction and the sentence.
The complainants, Hester
Salmon and Hans Siro, were lovers and walking from a tavern where
they had spent the night consuming alcohol.
They stopped and had a
chat under the bridge when the appellant and his companion appeared.
The appellant was armed with a beer
bottle whilst the companion was
armed with a screw driver.
The co-accused demanded
money from Hans and when he showed him his empty wallet he threw it
down and chased Hans for a while and
then returned to where Hester
and the appellant were. Hans also turned and followed him. Meanwhile
the appellant who remained behind
with Hester had instructed her to
undress and turn around so that he can have sexual intercourse with
her. When she refused the
appellant threatened to assault her with
the beer bottle and forcefully lifted her skirt whilst pulling her
panty to the knees.
She held tight onto her skirt. In the process
the appellant noticed a cellphone in her skirt’s pocket. They
grappled over it
and the appellant eventually took possession of it
and fled with the cellphone. She went after him demanding that he
return it.
When he noticed that
Hans had followed him, the co-accused again chased him and as he was
running Hans screamed for help and shouted
that some people were
raping his girlfriend. The police who were informed telephonically
by a passerby about a rape that was in
progress at the bridge
immediately rushed to the scene. On their arrival they found a
traumatized and crying Hester who immediately
pointed out the
appellant and his co-accused who were promptly arrested.
Mr Van Tonder, for the
appellant, launched a wide-ranging attack on the evidence and the
findings of the Regional Magistrate. First
in relation to the
evidence of the complainants, Van Tonder argued that the state
witnesses contradicted each other in material
aspects and as such
could not be relied on. Secondly he contended that because Hans and
Hester had spent the whole night prior
to this incident consuming
alcohol their evidence was untrustworthy as they were under the
influence at the crucial time. Thirdly,
that Hester Salmon was a
single witness in so far as the removal of her panty by the
appellant was concerned. For this reason her
evidence should have
been approached with more caution. Lastly, he contended that at most
the appellant could have been convicted
of indecent assault and
theft instead of attempted rape and robbery as the evidence does not
establish an intention to rape as
well as robbery.
There are of course a
number of contradictions between the versions of the witnesses. In
considering their effect one must bear
in mind that contradictions
per se do not necessarily lead to the rejection of the evidence of a
witness. Not every error made
by the a witness affects his
credibility and a court has to make an evaluation, taking into
account the contradictions, their number
and importance, as well as
their bearing on other parts of the witness’s evidence:
S
v Mkohle
1990 (1) SACR 95
(A) at 98 f-g;
S v
Jochems
1991 (1) SACR 208
(A) at 211 g-i
.
Bearing that in mind, I turn to deal with the contradictions.
Hester testified that
when their attackers approached them they enquired if they did not
see anyone going past. Hans testified that
when the two greeted them
and the appellant asked how much money he had on him he replied that
he used his money at Oriental Tavern.
Hans testified that he ran
away because the appellant said they were going to finish him off as
he was wasting their time. Hester
testified that the appellant
ordered Hans to go so that they can have sexual intercourse with
her. According to Hester whilst Hans
was being chased by the
co-accused, the appellant ordered her to remove her panty. According
to Hans he was present when the appellant
told Hester that he wanted
to have sexual intercourse with her. Hans testified that the
appellant returned the cellphone to Hester
in the presence of the
police and that the co-accused had the screwdriver in his possession
during the arrest. On the other hand
Inspector Gherhadus
Esterhuizen’s testimony is that the two had nothing in their
possession when he arrested them. Esterhuizen
testified that Hester
reported to him that the appellant gave the cellphone back to her
when he (Esterhuizen) appeared under the
bridge.
In my view, there is
nothing in these discrepancies which should have caused the
magistrate to reject the state’s evidence in
its entirety. The
events unfolded quickly and would have caused the witnesses
considerable stress. In the light of the fluid and
mobile nature of
the incident and the fact that the witnesses observed the events
from different positions, it is not surprising
that there may be
contradictions. These discrepancies, which are not materially, on
the contrary may point away from any possibility
that they had
colluded to give false evidence against the appellant.
Some
of these alleged discrepancies are merely perceived. For example
Van Tonder contended that Hans mentioned that the appellant
threw
his wallet on the ground when he discovered that it did not contain
any money whereas Hester makes no mention of this fact.
The
evidence illustrates clearly that the complainants could not always
be together. When Hans was chased twice and raised the
alarm the
two were separated. See
S
v Safatsa and Others
1988(1)
SA 868 at 890 G
at which point the Court states
:
“
The fallacy in the
argument for the accused is that it presupposes that either or both
of the witnesses must be untruthful or unreliable
simply because
their observations did not coincide. Such an approach to the evidence
is unsound.”
In
S
v Van Aardt 2009(1) SACR 648 (SCA) at 657b-d
the Court
observed:
“
Secondly, it is not
sufficiently appreciated by the defence that the witnesses were not
always in each other’s presence as the events
unfolded and they
therefore occupied different vantage points. For example the tractor
driver was mixing the animal feed elsewhere;
one of the milkers
milked one of the cows that could not walk outside the shed, others
were milking the cows in the shed; another
heard the commotion in
Koert’s house when he went to fetch a pair of pliers at the
appellant’s residence; another watched a different
stage of the
assault when he went to feed the calves and yet another when he
kraaled the cattle.
It
follows that the witnesses could not necessarily corroborate each
other on all points. They merely recounted what they observed
at a
particular stage. What is essential is that there is no suggestion
that they were not present on the farm and observed some
assault. In
fact the evidence emanating from the appellant as well suggests that
he interacted with his workers in the ordinary
course of them
performing their duties.”
A further attack on the
evidence of the state is that Hester’s version contradicts that of
Esterhuizen. According to Hester when
the police arrived at the
scene the appellant and his companion were walking. They were
arrested by the police together with Hans.
According to Esterhuizen
when he arrived at the scene Hester said to him “daar haardloop
hulle”. He saw the appellant and the
other man running at a
distance of approximately 15 -20 metres from him. At no stage did he
see Hans Siro. I hasten to say that
given the fact that it is common
cause between the defence and the state that Hans Siro was at the
scene, the fact that Esterhuizen
did not see Hans can only be
ascribed to a mistake on his part.
I turn now to the issue
of the drunkenness of the witnesses. Although it was put to them
during cross-examination that they were
drunk, it is clear from the
record that they were only mildly under the influence of liquor and
fully appreciated what was taking
place. Their evidence must not be
viewed in isolation. In order to decide upon the guilt of the
appellant, it is necessary to have
regard to a conspectus of all the
evidence. As was said by Nugent J in
S
v Van Der Meyden
1999 (2) SA 79
(W) at 81F–82D
:
“
Evidence which
incriminates the accused, and evidence which exculpates him, cannot
both be true – there is not even a possibility
that might be true –
one is possibly true only if there is an equivalent possibility that
the other is untrue. There will be cases
where the state evidence is
so convincing and conclusive as to exclude the reasonable possibility
that the accused might be innocent,
no matter that his evidence might
suggest the contrary when viewed in isolation…
The proper test is
that an accused is bound to be convicted if the evidence establishes
his guilt beyond reasonable doubt and the
logical 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 it be to convict or to acquit) must
account for all the
evidence. Some of the evidence might be found to be false; some of it
might be found to be unreliable; and some
of it might be found to be
only possibly false or unreliable; but none of it may be simply
ignored.
Part of this dictum is
quoted with approval in
S
v Van Aswegen 2001(2) SACR 97 (SCA)
at
101b-e. See also
S
v Chabalala
2003 SACR 134
(SCA) at 139 I – 140 b.
11. The complainant’s
evidence is corroborated to a large extent by Esterhuizen as well as
the defence evidence. Esterhuizen rushed
to the scene because of a
report of a rape that was taking place at the first Transvaal Bridge.
When he arrived at the scene he found
a traumatised Hester crying.
Hester immediately pointed out the appellant and his companion. The
two were arrested not far from the
scene. It is the defence version
that the appellant and the companion were at the scene at the
relevant times and that there was
a confrontation between Hans and
the companion albeit for different reason. The testimony of the state
witnesses that the attackers
were armed with a beer bottle was not
disputed and that one of them had a screw driver was admitted by the
defence. Having considered
the totality of the evidence I am of the
view that the evidence on all material aspects was substantially
common cause.
12. In my view, the
testimony of Esterhuizen and the defence in relation to the incident
affords a sufficient safeguard to the reliability
of the testimony of
Hester and Hans notwithstanding their alcohol consumption. As is
apparent from his judgment, the magistrate was
impressed with the
manner in which the state witnesses testified. He was obviously
unimpressed with the quality of the evidence of
the appellant when he
stated: “
Bygevolg
is ek nie tevrede dat hulle weergawes enigsins die waarheid is nie en
verwerp ek dit”
.
13. A trial court has
advantages which a court of appeal does not enjoy, especially in
regard to the evaluation of the credibility
and demeanour of the
witnesses. Accordingly, appeal courts are slow to disturb factual
findings made by courts of first instance
and, absent the Magistrate
having been shown to have misdirected himself, his conclusions are
presumed to be correct and must stand
unless they are shown to have
been wrong. See
R
v Dhlumayo and another
1948 (2) SA 677
(A) at 706
.
I have not been persuaded that the Magistrate misdirected himself or
that he reached the incorrect conclusion.
14. I turn now to the
issue of Hester being a single witness with regard to attempted rape.
It is a well-established judicial practice
that the evidence of a
single witness should be approached with caution. His or her merits
as a witness must be weighed against factors
which militate against
his or her credibility. See in this regard
S
v Webber
1971 (3) SA 754
(A) at 758G–H
.
The correct approach to the application of this so-called “cautionary
rule” was set out by Diemont JA in
S
v Sauls and others
1981 (3) SA 172
(A) at 180E–G
as
follows:
“
There is no rule of
thumb test or formula to apply when it comes to a consideration of
the credibility of the single witness (see
the remarks of Rumpff JA
in S v Webber . . .). The trial judge will weigh his
evidence, will consider its merits and demerits
and, having done so,
will decide whether it is trustworthy and whether, despite the fact
that there are shortcomings or defects or
contradictions in the
testimony, he is satisfied that the truth has been told. The
cautionary rule referred to by De Villiers JP
in 1932 [in R v Mokoena
1932 OPD 79
at 80] may be a guide to a right decision but it does not
mean ‘that the appeal must succeed if any criticism, however
slender,
of the witnesses’ evidence were well-founded’ (per
Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v
Bellingham
1955 (2) SA 566
(A) at 569.) It has been said more than
once that the exercise of caution must not be allowed to displace the
exercise of common
sense.”
15. On a proper analysis
of the Magistrate’s judgment in this case the conclusion can safely
be reached that he was alive to the
applicability of the cautionary
rule and that he approached Hester’s evidence with the necessary
caution, having stated the following:
“
Vir sekere aspekte
van haar getuienis is Hester, ‘n enkele getuie en sal die hof haar
getuienis in daardie lig beoordeel en dan
vir vedere aspekte is daar
stawing vir haar weergawe te vinde”,
The magistrate proceeded
to weigh the merits and demerits in her evidence and was satisfied
that there was sufficient corroboration
for her version. She made a
good impression on the court and gave her evidence in a satisfactory
manner. As stated earlier, the trial
court is in a better position to
make these determinations
16. I come now to the
contention by Van Tonder that at most the appellant should have been
convicted of indecent assault and theft
instead of attempted rape and
the robbery of a cellphone. The evidence establishes that the
appellant voiced his intention to have
sexual intercourse with
Hester. This is the reason why he ordered her to turn around and
remove her panty. When she refused he threatened
to hit her with the
beer bottle and forcefully lifted her skirt and pulled her panty to
her knees. In my view the expressed intention
accompanied by the
threats of assault and the active act of undressing go beyond the act
of indecent assault and constitutes attempted
rape which was halted
by Ms Salmon’s resistance.
17. On the question of
robbery of the cellphone there is cogent evidence that there was
resistance from Hester as they grappled over
the cellphone which the
appellant eventually succeeded to take from her. Because of the
resistance and the amount of force that was
exerted to get the phone
from her this matter is distinguishable from the grab-and-run cases.
Appellant only returned the instrument
because his co-accused told
him to and because these assailants were aware that they were
surrounded by the police. It seems clear
to me therefore that the
Magistrate was perfectly correct in convicting the appellant as he
did on this count and the appeal against
his conviction must fail.
18. Turning to the
question of sentence. Van Tonder argued that the Magistrate
misdirected himself in finding that the minimum sentence
of 15 years
imprisonment was applicable in this matter. He contended further that
the appellant was convicted of robbery and not
robbery with
aggravating circumstances. In terms of section 51(2)(c)(ii) of Act
105 of 1997 a minimum sentence of 7 years imprisonment
was
applicable. This is a fact that was conceded by Mr. Mashuga for the
state. However for an appeal court to interfere the misdirection
must
be material. As was said by Maya JA in
Ntaka
V S
[2008] ZASCA 30
;
(2008) 3 All SA 170
(SCA) at 173 para 13
“
That said, however,
it must be borne in mind that an error committed by a court in
determining or applying the facts for assessing
the appropriate
sentence does not necessarily spell the end of the enquiry. A mere
misdirection is not by itself sufficient to entitle
the appeal court
to interfere; it must be of such a nature, degree or seriousness that
it shows directly or inferentially, that the
court did not exercise
its discretion at all or exercised it improperly or unreasonably such
as to vitiate its decision on sentence.
Assuming, without
deciding, that the misdirections are not of a vitiating nature when
proper regard is had to all the relevant factors,
it must nonetheless
be considered whether the sentence was appropriate in the
circumstances of the case”.
19. Whether the
Magistrate was right or wrong in holding that the prescribed sentence
of 15 years is applicable, has no bearing on
the outcome because what
has to be decided is whether the misdirection vitiated his decision
on sentence. Together with the other
relevant factors before passing
sentence, the magistrate had to consider the fact that the appellant
has numerous previous convictions.
He had his first brush with the
law as early as 17 May 1994 when he was convicted of Housebreaking
and sentenced to 5 strokes with
a light cane. In November 1994 he was
sentenced to 7 strokes with a light cane for theft. On 16 February
1995 he was again sentenced
to 7 strokes with a light cane for theft.
On 10 November 1995 the imposition of sentence for theft was
postponed for 3 years. On
7 February 1996 he was convicted on two
counts of robbery which were taken together for the purposes of
sentence and was referred
to a reformatory school. In September 1996
he was sentenced to 30 months imprisonment for theft. On 28 May 1999
he was sentenced
to 8 years imprisonment for housebreaking with
intent to steal and theft. On 17 June 2005 he was released on parole
supervision until
27 November 2008. Within months of his release on
parole he committed the present offences.
20. With the long list of
previous convictions that the appellant has, all relevant to the
charge of robbery for which he has been
convicted, it cannot be said
in my view that the sentence of 5 years imprisonment is
inappropriate. This is so particularly when
one considers the fact
that the Magistrate found in his favour that there were substantial
and compelling circumstances to justify
the departure from the
prescribed minimum sentence of 7 years imprisonment. I am satisfied
that the Magistrate did not exercise his
discretion improperly. If he
erred, it was on the side of leniency.
21. The appellant’s
record of previous convictions shows that he has a propensity for
committing crimes involving dishonesty. He
must be warned that he
risks being declared a habitual criminal in terms of
section 286
of
the
Criminal Procedure Act 51 of 1977
or worse. There is no merit in
the appeal against sentence.
In the result I make the
following order.
1. The appeal is
dismissed.
2. The conviction and
sentence are confirmed.
3. The appellant is
warned that he risks being declared a habitual criminal in terms of
section 286
of the
Criminal Procedure Act 51 of 1977
.
_________________
G. N. Z. MJALI
ACTING JUDGE
NORTHERN CAPE HIGH
COURT
I concur
_________________
F.DIALE KGOMO
JUDGE PRESIDENT
NORTHERN CAPE HIGH
COURT.
On
behalf of the Appellant
Adv A
Van Tonder
Instructed
by
Kimberley
Justice Centre
On
behalf of the Respondent
Adv
Mashuga
Instructed
by
Director
Public Prosecutions