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[2008] ZAWCHC 139
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Stackling v S (A353/2007) [2008] ZAWCHC 139 (8 February 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO
:
A353/2007
DATE
:
8
FEBRUARY 2008
In
the matter between:
PIETER
ANDREW STACKLING
Appellant
and
THE
STATE
Respondent
JUDGMENT
ZONDI,
J
:
[1]
The appellant appeared in the Worcester district court on 26 March
2007 facing a charge of assauEt with intent to do grievous
bodily
harm. It is alleged in the charge sheet that on 6 February 2007 he
unlawfully and intentionally assaulted one Hendrika Stacking
with a
bin with intent to cause her grievous bodily harm. The appellant
appeared in person and conducted his own defence. Today
the appellant
appears in person.
[2]
The appellant pleaded not guilty to the charge but was convicted and
sentenced to a fine of R600 or three months' imprisonment
which was
wholly suspended on the normal conditions. With the leave of the
Court
a
quo
the
appellant now appeals to this Court against both conviction and
sentence.
[3]
I may mention that the appellant was tate in filing his heads of
argument and made an application for condonation. The State
does not
oppose that application and the application for condonation is
granted.
[4]
The appellant attacks the conviction on the ground that the State had
failed to prove beyond reasonable doubt that he had assaulted
the
complainant with intent to cause her grievous bodily harm. The
evidence which had been presented by the complainant and which
formed
the basis of the appellant's conviction was to the following effect.
[5]
On or about 6 February 2007, the appellant and the complainant - who
is his ex-wife - had attended a maintenance enquiry at
the Worcester
Maintenance Court. A heated argument ensued between the appellant and
his ex-wife resulting in the appellant picking
up a bin and aimed it
at his ex-wife. There was a dispute as to whether the appellant
had threw the bin at the
complainant. According to the
appellant he had merely picked it up with an intent to throw it at
the complainant but did not
do so because his cousin who was with
him at the time remonstrated with him, telling him to stop it. He put
the bin down without
having carried out his intention.
[6]
The complainant testified that she did not sustain any injury as a
result of being hit with the bin as the appellant's cousin
shouted at
the appellant to stop. The Court
a
quo
found
the complainant to have been a good and credible witness and did not
find any fault in her evidence. it rejected as improbable
the
appellant's version. The basis of its rejection of the appellant's
version is to be found in the following statement::
"Waarom
sal die beskuldigde nou terwyl hy kwaad is en terwy! hy is - in sy
hart voel en haar aan te rand net die (onduidelik)
gryp en
(onduidelik)"
[7]
The issue before us is whether the evidence led before the trial
Court justified a rejection of the appellant's version on the
basis
that it was not reasonably possibly true. The approach followed by
the trial Court in convicting the appellant was incorrect.
The trial
Court rejected the appellant's version on the basis that it was
improbable. This
is
a
wrong
approach and it constitutes a misdirection. In
S
v Shackwell
2001(2) SACR 185 (SCA)
r
the Supreme Court of Appeal cautioned against the rejection of an
accused's version simply because ft is improbable. There
Brand,
AJA
(as he then was) said at 194g-i:
"It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond a reasonable doubt and that
a mere
preponderance of probabilities is not enough. Equally trite is the
observation that in view of the standard of proof in
a criminal case,
a court does not have to be convinced that every detail of an
accused's version is true. If the accused's version
is reasonably
possibly true in substance, the Court must decide the matter on the
acceptance of that version.
Of
course, it is permissible to test the accuseds version against the
inherent probabilities but it cannot be rejected merely
because it
is improbable, it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable
that it cannot
reasonably possibly be true". Similarly, it has been held by the
Court in
S
v Ipeleng
1993(2) SACR 185 (T) at 189 b:
"Even
if the Court believes the State witnesses, it does not
automatically followthat the appellant must be convicted.
What
still needs to be examined is whether there is a reasonable
possibility that the evidence of the appellant might be true.
Even
if the evidence of the State is not rejected, the accused is
entitled to an acquittal if the version of the accused
is not
proved to be false beyond reasonable doubt. (See in this regard
S
v Kubeka
1982(1) SA 534 (WLD) at 537E;
R
v M
1946 AD 1023
- at 1027)."
[8]
Because of the misdirection to which I have referred in this matter,
this Court is at large to disregard the magistrate's finding
of facts
even if based on credibility, and to come to its own conclusion on
the record as to which the guilt of the appellant was
proved beyond a
reasonable doubt and the
onus
accordingly
become all-important
(
R
v
Dhlumavo & Another
1948 (2) SA 677
AD at 705B). Even accepting the magistrate's finding
that the complainant was a good witness, there is simply no basis for
rejecting
the version of the appellant The appellant should have been
acquitted.
[9]
In the resuit I would uphold the appeal against both conviction and
sentence. The conviction and sentence of the appellant are
set aside.
ZONDI,
J
VAN
STADEN, AJ:
Ek stem saam.
VAN
STADEN, AJ