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[2008] ZAWCHC 106
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Janse Van Rensburg and Another v S (A 689/2007) [2008] ZAWCHC 106 (30 May 2008)
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
No: A 689/2007
In
the matter of
MARIUS
JANSE VAN RENSBURG First Appellant
MARIUS
VISSER Second Appellant
and
THE
STATE Respondent
JUDGMENT
DELIVERED : 30 MAY 2008
MOOS
A, J:
Introduction
1.
The appellants (hereinafter, for the sake of convenience,
referred to as accused 1 and 2), were convicted, in the district
court of Khayelitsha, on a charge of assault ' with the intent to do
grievous bodily harm and sentenced, on 18 September 2007,
to 24
months imprisonment in terms of Section 276(1)(i) of the Criminal
Procedure Act, No 51 Of 1977 ("the Act"). The
appellants
appeal to this court, with the leave of the court a quo, both in
respect of the conviction and sentence.
2. The
allegations against the appellants were that, during the evening of
16 July 1999, they mounted an attack on the complainant
with the
assistance of police dogs under their respective control. At the
time they were performing patrol duty in the Khayelitsha
area as
members of the South African police dog unit. The appellants denied
the allegation of assault.
3. Accused
1 gave a plea explanation to the effect that he, legitimately and in
accordance with the provisions of Section 49(1)(b)
of the Act, used
an official dog under his control as an instrument to effect the
arrest of the complainant who was in the act
of fleeing. In the
process of affecting such arrest, the complainant was bitten by the
police dog. Accused 2 gave a plea explanation
to the effect that he
was present when accused 1 affected the arrest of the fleeing
complainant, but denied that the dog under
his control was used to
affect such arrest or to assault the complainant.
Findings
of the trial court
4.
The
complainant was the only witness for the State. The appellants
testified in their defence and called Inspector Detective Theunis
who took statements from the complainant as a witness in their
defence. The court a quo found the complainant an honest and
truthful witness and was satisfied that, as a single witness, his
evidence was satisfactory in all material respects. The court
accordingly accepted his evidence. The court rejected the evidence
of the appellants as a fabrication and as not reasonably possibly
true. The court accordingly found that the State had proved the
offence against the appellants beyond reasonable doubt and found
them both guilty as charged.
Grounds
of appeal
5.
The
main thrust of appellants' grounds of appeal was based firstly, on
the fact that
the trial court erred in accepting the explanation
of the complainant concerning the alleged contradictions and
omissions contained
in the various statements made to the police by
the complainant in respect of the incident giving rise to the
charge; secondly,
the fact that he was a single witness and the
court failed to approach his evidence with the necessary caution and
thirdly, the
court erred in making a favourable credibility finding
in respect of the complainant and an adverse credibility finding in
respect
of the appellants.
The
facts
6.
It
is common cause that on the evening of 16 July 1999, the complainant
was driving his motor vehicle in Lansdowne Road, Khayelitsha;
at the
same time, the appellants, as members of the police dog unit, were
doing patrol duty in a marked police vehicle in the
same area; the
complainant sustained certain injuries consistent with dog bites; he
was taken to the Khayelitsha day hospital
and after receiving
treatment, he was detained at the Khayelitsha police station; he was
released the following day without being
charged and he thereafter
laid a charge of
assault.
Conflicting
versions
7.
There
are two conflicting versions as to how complainant sustained the
injuries. The State's version is that complainant's car
was forced
off the road by the marked police car driven by accusedl; accused 1
approached him at the driver's side of his vehicle
and asked him:
"why
are you running away?"
and
complainant replied:
"I
am not running away";
accused
1 pulled him out of the car and said:
"Dis
die kaffer wat baie praat";
accused
2 handed one dog to accused 1; accused 1 swore at complainant, threw
him to the ground and instructed the dog to bite
"the
kaffir";
accused
2, who also had a dog, then set his dog on the complainant and as a
result of the attack by the two dogs, complainant
sustained the bite
wounds. The complainant, prior to the attack had driven past a taxi
that was standing in the middle of the
road. He stopped his car to
ascertain what was wrong. He got out and approached the taxi, when
he noticed that the passengers
were being searched by two police
officers, he returned to his car and drove off and was pulled off
the road by the two police
officers.
8.
The version of the defence is that, while doing patrol duty, they
noticed that complainant collided with a stationary Hi-ace
vehicle.
The appellants told both the complainant and the taxi driver to
report the accident to the Khayeltisha police station.
While they
were following complainant, he suddenly speeded off, went through a
few stop signs and almost collided with other
cars. They gave chase,
noticed that the complainant slowed down, jumped out of the car,
crossed Lansdowne Road and ran towards
the bushes on the side of the
road. Accused 1 ran after the suspect with his dog on a leash and
after warning the suspect, let
the dog loose and gave it
instructions to catch the suspect. The dog bit and caught the
suspect. Accused 2 remained at the car
and his dog was never used to
bite or secure the arrest of the complainant.
The
legal principles
9.
In evaluating the evidence there are three legal principles of
significance applicable in this matter. The first is that the
complainant is a single witness for the State. Section 208 of the
Act stipulates that an accused may be convicted on the evidence
of a
single and competent witness. This does not displace an important
principle in our law that the evidence of a single witness
must be
approached with caution. Before the court can place any reliance
thereon, the evidence of a single witness must be clear
and
satisfactory in every material respect. In other words, the evidence
must not only be credible, but must also be reliable.
In this
respect see:
R
v Mokoena
1956
(3) SA 81
(A);
S
v Webber and Others
1971
(3) SA 754
(A) at 758G;
S
v Sauls and Others
1981
(3)SA172(A) at 179G-180G;
S
v Stevens
[2005]
1 All SA 1
(SCA) at 5 and
S
v Gentle
2005
(1) SACR420 (SCA) para 17. However, our courts have repeatedly
warned that the exercise of caution should not be allowed
to replace
the exercise of common sense.
(S
v Artman and Another
1968
(3) SA 339
(A) at 341C.)
10. The
second is that a court of appeal will not easily interfere with the
factual and credibility findings of the trial court
unless the court
has materially misdirected itself in respect thereof. The trial
court hears and sees the witnesses in the witness
box and observes
their demeanour. The trial court is therefore in a much more
favourable position than the court of appeal to
make factual and
credibility findings.
(R
v Dhlumayo & Another
1948
(2) SA 677
(A) at 705 and
S
v Robinson & Others
1968
(1) SA 666
(A) at 675).
11. The
third is that where there are two conflicting versions, or two
mutually destructive stories, both cannot be true. Logic
dictates
that only one can be true. Consequently the other must be false. In
order to determine the objective truth of the one
version and the
falsity of the other, it is important to consider not only the
credibility of the witnesses, but also the reliability
of such
witnesses. Evidence that is reliable should be weighed against the
evidence that is found to be false. In this regard
see
S
v Saban &'n Ander
1992
(1) SACR 199
(A) at 203j to 204a-b;
S
v van der Meyden
1999
(1) SACR 447
at 449g-j -450a-b and
S
v Trainor
2003
(1) SACR 35
(SCA) at para [9].
Evaluation
12.
The trial court found that despite lengthy and extensive
cross-examination, the complainant stuck to his version. He did not
deviate from his evidence in chief or contradict himself. He gave a
reasonable explanation for the various statements made by
him to the
police. The court did not get the impression that he was fabricating
a story against the appellants. The trial court
found the
complainant to be an honest and truthful witness. The court
concluded that the complainant's evidence was satisfactory
in all
material respects.
(ft
13. The
appellants' attack on the credibility of complainant was essentially
centred on the fact that he made four statements
to the police. The
purpose of making statements to the police is essentially to
facilitate prosecution of a complaint and is
not meant to serve as a
substitute for the evidence in court. A perusal and examination of
the first three statements clearly
reflect shortcomings in language
and content thereof and as such lacked the element of
professionalism. The trial court remarked
that the first statement
was cryptic and the subsequent two statements were inadequate. A
perusal of those statements justifies
such findings.
14. In
S
v Mlumbi and Another
1991(1)
SACR 235 (A),
Steyn
JA
at
248B said the following:
"Polisieverklarings
is dikweis onvolledig, soms seifs ten aansien van befangrike feite.
Die omststandighede waaronderen die
besondere persoon aan wie so 'n
verklaring gemaak was, is dikwels vir die onvolledigheid van sulke
verklarings verantwoordeiik."
15. The
final statement was a detailed statement and was consistent with
complainant's evidence in court. The shortcomings of
the impugned
statements are, in my view, attributable to the statement takers and
cannot be laid at the door of the complainant.
I am satisfied that
the complainant gave a reasonable and acceptable explanation for
making the various statements and, in my
view, the making of
multiple statements did not adversely impact on his credibility, but
in fact reflected badly on the quality
of the police investigation.
16. The
trial court remarked that just as it very closely observed the
complainant throughout the proceedings, so it had also
observed the
two accused very closely, during the evidence in chief as well as
during the cross-examination. It observed that
both of the accused
appeared to be very uncomfortable in the witness box and was not
impressed with the version of the two accused.
It found that there
were too many contradictions in their version and concluded that
their version was a fabrication. I cannot
fault such conclusion.
17.
After
making certain factual and credibility findings and considering the
inherent probabilities on the totality of the evidence,
the trial
court came to the conclusion that the complainant's version was true
and the appellants' version was false. A close
scrutiny of the
evidence of the appellants leads one to the inevitable conclusion
that the appellants rehearsed their testimony;
there appears to be a
remarkable correlation of their evidence even insofar the details
and contradictions are concerned.
The
probabilities
18.
The inherent probabilities favour the complainant's version that
there was no collision as alleged by appellants; that complainant
drove recklessly is a fabrication; that the appellants had set their
dogs on the complainant as described by him and not as alleged
by
the appellants; that accused 1 had uttered those expletives which
had racial overtones; that complainant was taken by the
appellants
to Khayelitsha Day Hospital for medical treatment in their car as
described by complainant and not in a police van
as alleged by
appellants; and that the charge of reckless or negligent driving
laid by appellants was a trumped up charge. I
am satisfied the
inherent probabilities are consistent with the version of the
complainant and accordingly provide the necessary
guarantee and
safeguard for his evidence as a single witness.
19.
The version of the appellants is highly improbable and the trial
court correctly found, in my view, that it was a fabrication.
On
their own version they had no opportunity to warn the driver to
report the minor accident to the police station, as it appears
that
from their version that it was a matter of "hit and run".
There is no evidence that such a charge was laid. There
is no
evidence of any damage either to the stationary vehicle or
complainant's vehicle. If there was any damage to complainant's
vehicle, they would have noticed such damage as it is common cause
that accused 1 drove the vehicle to the police station. The
alleged
charge of reckless driving arose not from the alleged collision with
the stationary vehicle, but emanated from the allegation
that
complainant drove away after the hit and run accident, was chased by
the accused' and drove through stop signs and almost
collided with
other vehicles. Objectively speaking, there was no reason for
complainant to practically jump out of a moving car
and try to run
away. He would not only have endangered his life jumping from a
moving car, but he could also have risked his
life by being fired on
by the police.
20.
The
question to be asked is: What triggered the unlawful conduct which
led to the
charge in question? The most probable cause, in my
view, is a statement complainant apparently made to accused 1, when
complainant
stopped at the stationary taxi where he saw the two
police officers searching the passengers. These remarks appear to
have offended
accused 1. Because, soon after complainant got into
his vehicle and drove off, he was followed by the appellants. They
forced
him off the road. Accused 1 pulled him out of the car and
they set the dogs on complainant. I am strengthened in this
conclusion
by the remarks of accused 1:
"Dis
die kaffir wat baie praat".
This
is a clear indication that the complainant must have said something
to accused 1.
Absence
of misdirection on conviction
21.
On
a close scrutiny of the record, I cannot find any misdirection on
the part of the
trial court in arriving at the factual and
credibility findings. As there is a presumption that the factual and
credibility findings
of the trial court are correct in the absence
of material misdirection, I see no valid reason for us to interfere
with such findings.
On the conspectus of the totality of the
evidence, I am satisfied that the version of the appellants, as
found by the trial court,
is not reasonably possibly true and the
State has proved the guilt of the accused beyond reasonable doubt. I
would therefore
confirm the conviction.
Sentence
22.
I now turn to deal with the question of sentence. The accused'were
sentenced to 24 months imprisonment in terms of Section
276(1)(i).
It is a trite principle of our law and our courts have repeatedly
emphasized that sentence is a matter that falls
pre-eminently within
the discretion of the trial court. The court of appeal will only
interfere with such discretion if the trial
court failed to exercise
its discretion judiciously. In
S
v Petkar
1988
(3) SA 571
(A) at 574C,
Smallberger,
JA,
formulated
the position as follows:
"This
Court's powers to interfere with sentence on appeal are
circumscribed. It may only do so if the sentence is vitiated
by (1)
irregularity, (2) misdirection, or (3) is one to which no reasonable
court
could have come, in other words, one where there is a striking
disparity between the sentence imposed and that which this
court
considers appropriate."
23.
On a close scrutiny of the record, it appears that the court a quo
gave serious consideration to a non-custodial correctional
supervision in terms of Section 276(1 )(h) of the Act. The court
called the complainant to testify in connection with sentence.
He
was adamant that he wanted the accused' to go to prison. He was not
interested in being compensated. It appears that he was
trying to
exact revenge. The following excerpt from the record is incisive;
"Mr
Maartens:
'No,
I am saying that you are hell bent to see these gentlemen in prison,
that you will say anything to make sure they go to jail.'
Complainant:
'Yes, the reason why I am saying, I am talking like this bitten of
the dogs your Worship (inaudible) very painful
your worship'."
24.
The
court also gave serious consideration to making an order for
compensation but, because of the attitude of complainant, the
court
said:
"So
I am not going to even consider the question of compensation for the
complainant".
The
court went on further to say:
"Mr
Maartens
made
out a strong case or argued extensively for the imposition of
correctional supervision as a form of sentence. I agree with
the
submissions made by your Advocate in this regard, then on the other
hand there are also cases where it was decided that correctional
supervision would not be an appropriate form of punishment, form of
sentence rather."
25.
After
analyzing a number of cases, the court concluded that the attack on
the complainant was unprovoked and that the interest
of the
community would be served if the appellants are sent to prison for a
short period. In my view the court misdirected itself
by such
findings. I have found that the attack was triggered, most probably,
by a remark made by the complainant when he stopped
at the
stationary taxi and in the circumstances the attack was not
unprovoked as the trial court found.
26. I
do not agree that the interest of the community is served by short
term imprisonment of the appellants. They are gainfully
employed and
the likelihood is that they will lose their employment if they are
imprisoned. Their family life will be disrupted.
The appellants will
not be able to fulfil their social, economic and parental
responsibilities towards their families. The education
of the
children may be jeopardized. They may then become a charge and
burden on society.
27. Sachs
J,
in
a very recent Constitutional Court judgment namely,
S
v M
2008
(3) 232 (CC) at 264A-C, in extolling the virtues of non-custodial
correctional supervision quoted with approval the
dictum
of
Conradie
J,
(as
he then was) in the unreported judgment of
The
State v Harding,
Case
No SS 61/92, September 1992 (C), a portion of which I replicate in
this judgment:
"..
A probationer does not have his freedom - far from it - but he is
not cut off from the community altogether. His support
systems are
not destroyed and in this way his rehabilitation prospects are
enhanced. Moreover there is the benefit that society
does not lose
the skills of someone who is able to maintain himself and his
dependants as well as the family unit. Community
service, which goes
hand in hand with correctional supervision, is beneficial."
28. A
further misdirection, in my view, is that the trial court was unduly
influenced by the views of the complainant whose primary
objective
was to exact revenge. It is not the function of the court to exact
revenge. The sentence must fit the crime, the criminal,
be fair to
society and be blended with a measure of mercy. In view of the
misdirections to which I referred, this court is entitled
to impose
an appropriate sentence anew.
29. One
cannot detract from the seriousness of the offences, which according
to the trial court was racially motivated and had
racial undertones.
Our society has emerged from a past that was deeply divided on the
basis of race and was characterized by
institutional racism. In our
new democratic and constitutional dispensation, there is a duty on
every member of the South African
society to heal the divisions of
the past and not make him- or herself guilty of inflaming the
feelings and sensitivities of
those who were victims of the past
racial discrimination. It is clear from the objective evidence that
the appellants abused
their power as members of the South African
police force. Instead of protecting John Citizen, they assaulted the
complainant
by setting their police dogs on the complainant as
result of which complainant suffered serious injuries for which he
had to
receive medical attention. One cannot but agree with the
trial court that the conduct of the appellants was reprehensible.
30.
The appellants are first offenders, they have families who are
dependent on them, they have permanent employment, the case
is from
1999, they have surely been subjected to anxiety not knowing what
would be the final outcome of the case, they showed
some degree of
compassion by taking the complainant to hospital, there was some
element of provocation on the part of the complainant,
they have
family support systems in place and both are suitable candidates for
correctional supervision.
31.
Our courts have repeatedly stressed that non-custodial supervision
is not necessarily a light sentence. In
S
v Mtsi
1995
(2) SACR 206
(W), the court held that non-custodial correctional
supervision is sufficiently severe to satisfy the deterrent element
of punishment.
In
S
v R
1993
(1) SA 476
(A) at 488I-J,
Kriegler
AJA
(as
he then was) said: "..
.that
a sentence of correctional supervision can be more oppressive to an
accused than one of short-term imprisonment".
In
S
v Siebert
1998
(1) SACR 554
(SCA) at 559c-h, the court made the following remarks:
"An
enlightened and just penal policy requires a broad scope of
sentencing options from which the most appropriate option,
or
combinations of options, can be selected to fit the unique
circumstances of the case before the court. It requires a
willingness
on the part of the trial court actively to explore all
available options and choose the sentence best suited to the crime,
the
criminal, the public interest and also the aims of punishment."
The
court went further to say:
"As
regards correctional supervision in terms of s 276(1)(h) of the
Act,
a useful guideline is afforded in
S
v R
(supra
at 221 g-i), viz that a clear distinction should be drawn between
those offenders who ought to be removed from society
by means of
imprisonment and those, although deserving of punishment and even
severe punishment, should not be so removed."
32.
I do not think that the appellants deserve to be removed from
society. What they need is counselling to disabuse their minds
of
the racist mindset. Such counselling they can receive just as
effectively whether they serve a sentence of custodial or
non-custodial correctional supervision. I am of the view that the
interest of society will best be served by not removing the
appellants from the community, but by imposing a suspended term of
imprisonment, coupled with a term of non-custodial correctional
supervision.
Order
33.
In the result, each of the accused is sentenced to 2 (two)
years imprisonment which is suspended for 3 (three) years,
subject
to the following conditions: that he is not convicted, during the
period of suspension, of assault with intent to do
grievous bodily
harm, or any other offence of which violence is an element and for
which he is sentenced to imprisonment without
the option of a fine,
or without the imprisonment being conditionally suspended; that he
undergoes 2 (two) years correctional
supervision in terms of Section
276(1 )(h) of the
Criminal Procedure Act, No 51 of 1977
, subject to
the following measures:
a)
Accused 1: Marius Janse van Rensburg, house arrest at
1
Maul Road, Kraaifontein
and
accused 2: Marius Visser, house arrest at
22
Karoobos Street, Brackenfell
for
the full duration of the period of correctional supervision or in
accordance with such times and place as may be determined
by the
Commissioner of Correctional Services from time to time. House
arrest shall not apply to periods reasonably necessary
for
employment of the accused, medical treatment, the attendance of
counselling and/or rehabilitation programmes and community
service
in terms of this order, or for the attendance of religious services.
b)
Community service for a total period of 16 (sixteen) hours per
month. The nature of the community service, the place where
and the
times during which such services will be performed, will be
determined by the Commissioner of Correctional Services,
provided
that the Commissioner is empowered, if merited, to suspend a maximum
of 6 (six) hours per month of the community service
on such
condition as he deems fit.
c) Submission
to any counselling, rehabilitation or treatment programme(s) which
may be deemed appropriate by the designated correctional
officer, in
order to realise the objectives of the sentence of correctional
supervision.
d) Submission
to monitoring by the Commissioner of Correctional Services in order
to realise the objectives and compliance with
all the conditions
thereof.
It
is further ordered that the accused:
(i)
Report to the correctional supervision officer at
BELLVILLE
COMMUNITY CORRECTIONS
on
Monday
9
th
June 2008,
in
order to make the necessary arrangements for the practical
implementation of this sentence.
(iii)
Notify
the Commissioner of Correctional Services forthwith in writing of
any
change
of residential or work address.
(iv
)Comply
with any reasonable instructions issued by the Commissioner of
Correctional
Services regarding the administration of and compliance with
the
sentence.