S v Ramakatsa (339/2007) [2007] ZAFSHC 83 (3 May 2007)

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[2007] ZAFSHC 83
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S v Ramakatsa (339/2007) [2007] ZAFSHC 83 (3 May 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 339/2007
In
the review between:-
THE
STATE
and
MASABATA
MARTHA RAMAKATSA
______________________________________________________
CORAM:
MALHERBE
JP
et
MILTON
AJ
______________________________________________________
JUDGMENT
BY:
MALHERBE
JP
______________________________________________________
DELIVERED
ON:
3
MAY 2007
______________________________________________________
The accused is a 24 year
old female who was arraigned in the Magistrate’s Court on a charge
of assault with intent to do grievous
bodily harm. The charge sheet
alleged that she had stabbed the complainant, Joseph Mokoena
“with
a broken bottle on the left eye.”
The accused conducted her
own defence and pleaded not guilty to the charge. In her plea
explanation she raised the defence of self
defence. She was
convicted as charged whereupon the trial Magistrate referred the
matter to the Regional Court for sentence. The
Regional Magistrate
asked the trail Magistrate to furnish reasons for the conviction.
After these reasons were received the Regional
Magistrate still
entertained doubts as to the conviction and sent the matter to this
Court for special review in terms of section
116(3)(a) of the
Criminal Procedure Act.
It
is common cause that the incident during which the complainant was
injured took place at approximately 23h00 outside a tavern where
everybody concerned had been drinking. According to the
complainant’s evidence his girlfriend, Mapule, was present, as well
as
her two friends, Pule and Dikgang. Another man by the name of
Gift was also there and accused called her sister, Elisa, as a
witness
who testified that she was also an eye witness to the
incident. Yet, the State called only the complainant as a witness.
I quote
the relevant part of his evidence in chief:
“
---
Masabata was once my girlfriend, a long time ago. And the
relationship did not work out. And after she refused her sister to
come along with us she started swearing at me because we were all
drunk. And then we did leave the tavern. We were walking on the
street. And as we were walking I was walking behind them with my
friends and Mapule was walking in front. And as we were walking
behind them I heard Mapule calling me.
Mr Mokoena, who is this Mapule? ---
Mapule is my girlfriend. I was with her on that day. After Mapule
called me I went to them and
I found out that they were having some
problems there.
COURT:
Just a second please. …(mechanical intervention).
PROSECUTOR:
You said …(indistinct) your girlfriend …(indistinct). --- When I
got there I hit Masabata with an open hand.
COURT(?):
Mr Mokoena, …(indistinct) clear …(indistinct) who is this
Masabata that you are referring to? --- …(intervenes).
The accused. --- Accused person.
Please,
can you refer to her as the accused? --- After I hit her I talked to
my girlfriend, Mapule. And then I turned around and
looked at the
accused person. She then stabbed me with a bottle. …(indistinct)
pointing at …(indistinct). After she stabbed
me, she then left.
PROSECUTOR:
…(indistinct). --- …(no audible reply).
Mr
Mokoena, how many times were you stabbed? --- Once.
And did you sustain any injuries as a
result of the stabbing? --- Yes, I lost my eye and then I was
stitched on top of it. Eye, on
my cheek and …(indistinct) my
mouth.”
“
COURT:
Before the accused person can proceed with the cross-examination Mr,
the complainant. I would like to know just one thing. Mr
Mokoena,
actually why did you assault this lady with an open hand? --- Because
she was fighting my girlfriend.”
The relevant parts of
accused’s evidence in chief read as follows:
“
Yes? --- Then my ex-boyfriend,
Sabata, (the accused) swore at me …(indistinct).
…
(indistinct).
--- He said that I am a whore and, she swore at me by my mother’s
private part. And when I swore back at him he then
assaulted me.
Yes?
--- And in my right hand I had a glass. I hit him with it on top of
his eye.
Yes? --- And I told him to leave me
alone and I left. And then my sister asked him what is it that he
wants from me.
Did she say that before you left or
what is the …(interpreter intervenes) because you have just said
that thereafter you left?
--- I was close to them.
…
(indistinct)
at what time or at what point in time did …(indistinct) after
…(indistinct. --- When we were still together they
were busy
reprimanding him.
Before
you stabbed him with …(indistinct). --- After hitting
…(indistinct) with it.
Yes,
…(indistinct). --- And he had a knife in his possession, on his
hand. He pushed my sister with it on her chest.
After
…(indistinct). --- Yes.
Yes?
--- And my sister’s boyfriend pulled me away and he told me to go.
What
is his name? --- It is Gift(?).
Yes?
--- And Sabata took out a box with matches and he lighted (sic) the
matches and he show my sister what …(indistinct) done to
him. And
he said that he was going to kill me. And whilst I was walking
Sabata came running after me.
Yes.
--- And he a knife in his possession at that point.
Yes?
--- My sister came and I took a bottle from her.
Yes? --- I broke the bottle and
stabbed him with it.”
In cross-examination she
said the following:
“
Ms Ramakatsa, in your testimony you
testified to the effect that Mr Mokoena slapped(?) you and then you
swore back at him, is that
right? --- First he swore at me by my
mother and then he assaulted me and I swore back at him. And he did
not like what I did by
swearing back at him.
And
then he slapped you? --- Yes, he hit me.
And
that got you very angry. --- Yes, because he kicked me and I was very
angry after that.
…
(indistinct)
kicked you …(indistinct). How many times did he kick you? --- He
kicked me. I was drunk and I was lying on the ground.”
“
Would
you agree with me that this glass that you threw him with, I mean the
injuries that he sustained as a result of being thrown
with this
glass and being stabbed with the bottle later do not justify the
injuries that you said, I mean do not justify what he
did to you, he
only slapped you? --- He hit me several times, kicked me several
times and he did not slap me only once, but he slapped
me several
times. Even the knife that he had, it was meant(?) for me.”
Accused’s sister,
Elisa, corroborated her version that the complainant was the
aggressor, that he was armed with a knife and that
he kicked the
accused several time while she was lying on the ground.
The
trial Magistrate found that the complainant
“
should
have been so drunk that he forgot that he was stabbed first with a
glass and later with a bottle in the eye. He only remembers
an eye
injury because it was a major injury.”
Yet she found him
“
a credible witness in that he did
not hide that he hit the complainant with an open hand first.”
On the other hand she
said the following about the accused:
“
All these make this court to
consider the accused person also as a credible witness because she
did not hide the injuries she inflicted
on the complainant.”
In view of the fact that
the trial Magistrate found the accused to be a credible witness, the
conviction is clearly wrong. The accused’s
evidence, as
corroborated by her sister, lays a proper foundation for the defence
of self defence. The trial Magistrate should have
entertained a
reasonable doubt about the accused’s guilt by reason of the fact
that everybody concerned was obviously drunk and
that the State
failed to call one or more available witnesses to corroborate the
complainant.
In
view of the above finding it is not necessary to deal with the
Regional Magistrate’s other criticism of the conviction with which
I agree in any event.
In
the result the conviction of the accused by the trial Magistrate on
13 November 2006 is set aside.
_________________
J.P. MALHERBE, JP
I
agree.
_____________
D. MILTON, AJ
/sp