Moffett v S [2007] ZAFSHC 41 (17 May 2007)

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[2007] ZAFSHC 41
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Moffett v S [2007] ZAFSHC 41 (17 May 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Appeal No. : A37/2007
In
the appeal between:-
CHARLES
SEAN MOFFETT
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI
J
et
MILTON AJ
_____________________________________________________
HEARD
ON:
30 APRIL 2007
_____________________________________________________
JUDGMENT
BY:
MILTON AJ
_____________________________________________________
DELIVERED
ON:
17 MAY 2007
_____________________________________________________
[1] The appellant, a 44
year old man, was charged in the district court of Ficksburg with
assault with intent to do grievous bodily
harm, in that on the 18
th
May 2006 near Berlyn farm, district Ficksburg he unlawfully and
intentionally assaulted the complainant, Petrus Mohapi, by pointing
a
firearm at him and threatening to shoot him with intent to cause him
grievous bodily harm.
The
second charge, that the appellant on the same day and place pointed a
firearm, a star pistol, at Petrus Mohapi without a lawful
reason/permission.
[2] The
appellant pleaded not guilty to both the charges.
[3] On the 11
th
October 2006 the appellant was found not guilty on count 1, but
guilty on count 2 and sentenced to R2 000,00 (two thousand rand)
or 6
(six) months imprisonment, half of which sentence is suspended for 4
(four) years on condition that the accused is not convicted
of
pointing of a firearm, committed during the period of suspension.
The appellant was also declared unfit to possess a firearm
in terms
of
section 103(3)
of the
Firearms Control Act, 60 of 2000
.
[4] Appellant
is appealing against both his conviction and sentence.
[5] The State called a
single witness, the complainant, Mohapi Petrus Mohapi, employed on
the farm as a labourer where the incident
took place. He testified
that while working the appellant approached him and asked him what he
was doing. The complainant said
that he was busy removing the lawn
after which the appellant told him that he was busy digging a hole.
Without provocation the appellant
insulted the complainant by saying
his “buttocks was hard” (hardegat).
[6] Thereafter an
altercation ensued both parties insulting each other. Appellant told
him to stop working and leave but complainant
was not sure he was
authorised to do so. Appellant thereafter went to his caravan where
he took out his gun.
[7] Appellant threatened
to shoot the complainant who challenged him to do so. At this stage
both parties were aggressive. The appellant
thereafter stood one
metre away from the complainant and pointed the firearm next to the
complainant’s legs and fired one shot
next to his legs but he just
swerved to the side quickly. The appellant was aiming to shoot at
his leg.
[8] After the shot was
fired he rushed back to where he was working, collected his tools to
put them away. He had nothing in his
hands when the shot went off.
There were no eye witnesses and he is still employed on the farm.
[9] In
cross-examination the complainant
denied that the
appellant was making a joke about making the hole too deep;
admitted being angry
and that he did not react to his name being called but later denied
it again;
could not remember that
the appellant said he wanted to leave the situation there since it
was getting out of hand;
admitted that appellant
first went to his car before he fetched the firearm in the caravan;
although he admitted
that he was furious because his services were terminated, he denied
the appellant’s version that he was
aggressive and militant and
that the situation was out of control;
denied having a spade
and a rake in his hands when he followed the appellant to his
vehicle.
[10] During
cross-examination of the complainant
10.1 a statement by the
defence witness was provisionally allowed for purposes of
cross-examination and later admitted as evidence
after the defence
witness, Inspector Mtshabe, was called to verify the contents
thereof.
10.2 In paragraph 4 of
this statement the complainant avers that the appellant stood in
front of him, placed the firearm against
his head and three times
said that he was going to shoot him (the complainant).
10.3 Complainant denies
that the statement has been correctly taken down although both he and
the inspector were conversing in Sesotho,
their mother language, and
denies that the statement was read back to him.
[11] The appellant’s
version was that:
He was making a joke
when he mentioned the hole that complainant was supposedly digging;
The complainant became
aggressive and would not react to his name when he was trying to
get his attention to explain what he meant;
He denies having fired
the complainant when he said he must stay away from him. The
complainant misinterpreted him.
He left and went to his
vehicle to fetch welding rods but complainant followed him with
garden implements and insulted him by
saying he is a “kortgat”.
Complainant shouted
that he should fetch his firearm and he did so out of fear.
Appellant was fearful
that the situation would become uncontrollable so he fetched his
firearm and fired one round into the ground
to calm the situation.
He never pointed the firearm at the complainant.
Appellant’s
version was unchallenged.
[12] 12.1 Inspector
Mtshabe was called as a defence witness whose main purpose was to
verify that he took the complainant’s statement
on the same day the
incident took place.
The inspector recorded
the statement as the complainant narrated his version.
According to the
complainant’s written statement the appellant pointed the firearm
at the complainant’s head and threatened
to shoot him three times
whereafter he fired one shot next to his feet, not at his legs as
indicated in his evidence in chief.
13. The presiding officer
in the court
a quo
made the following statements:
13.1 that appellant
should answer as to why he did not fire a shot when he was at the
caravan;
that appellant did not
prove that the matter was out of control;
that appellant gave
evidence that complainant had a spade and a rake in his hands but
tendered no evidence what he wanted to do
with it;
accepts that
complainant picked up the garden tools after the shots were fired;
rejects Inspector
Mtshabe’s evidence in total since he uses the words “if my
memory serves me well” as being unreliable
and he is therefore
not sure of himself;
on the above grounds
the preceding officer finds the appellant guilty on the second
count.
ANALYSIS OF THE
EVIDENCE
[14] Where there has been
no misdirection of fact by the trial Judge or magistrate, the
presumption is that the conclusion is correct
and the Appeal Court
will only reverse the judgment when it is convinced that it is
incorrect.
[15] This may happen when
the presiding officer of the court
a quo
may have misdirected
himself or herself on the facts; where the reasons are either on the
face value unsatisfactory or the record
might show them such or show
that some facts or probabilities are overlooked.
REX v DHLUMAYO AND
ANOTHER
1948 (2) SA 677
(A)
and
S v FRANCIS
1991 (1) SACR 198
(A) at 204D
[16] The presiding
officer correctly found the appellant not guilty on the first count
although there are no reasons given in her
judgment.
[17] The
State must prove beyond reasonable doubt that the appellant
intentionally and unlawfully pointed a firearm, a star pistol,
at the
complainant without any lawful reasons or permission.
[18] It
is common cause
that an altercation
took place between the complainant and the appellant;
that the complainant on
his own evidence was furious and became boisterous;
that the appellant used
his firearm to defuse the volatile situation and one shot was
fired;
[19] The appellant is not
required to convince the court that his version is true. If his
version is reasonably and possibly true,
so as to cast doubt in the
court’s mind, then he must be acquitted.
Vide
REX v
DIFFORD
1937 AD 370
on 373.
[20] 20.1 I am not
convinced that the appellant acted at all correctly on this
particular day and find myself asking several questions
regarding his
actions. There is no doubt that the appellant instigated the
unfortunate situation by making a sarcastic remark to
the
complainant. Appellant tried in evidence to downplay his remark, but
in the context, that he uttered it, it was specifically
meant. This
is educed from the appellant’s explanation he gave as to why he
commented thus, namely, that the complainant had been
busy on the
same spot for some time and the inference is that he was
dilly-dalling.
Appellant made this
remark well knowing (on his own evidence) that the two of them had
had problems previously.
There was no suggestion
in his evidence that he was threatened by the complainant
physically, but it is accepted that the complainant
was becoming
increasingly worked up and was not sure if he would pull a knife on
him or do something that would endanger him.
Since the appellant had
the opportunity to move away from the complainant to his vehicle,
on his own version, why did he not walk
away from the situation
totally or get in his car and drive away? The over hasty use of a
firearm in whatever way is to be frowned
upon.
It is highly improbable
that the complainant, who was unarmed, would or should shout “go
fetch your firearm, go fetch your firearm”.
[21] The above, however,
does not detract from the fact that the State must still prove beyond
reasonable doubt that the appellant
pointed the firearm at the
complainant. The appellant denies that he pointed the firearm at the
complainant but only fired a shot
into the ground there where he was
standing as a supposed warning shot and to defuse the volatile
situation.
[22] The
State relied on the evidence of a single witness and although a
single witness’ evidence should be evaluated with caution,
a court
can convict an accused if the evidence of the single witness is
satisfactory, reliable, clear, not bias and is not contradictory
on
the material elements making him/her a credible witness.
In
S v SAULS AND
OTHERS
1981 (3) SA 172
(A) on 180F the following was said
regarding the valuation of a single witness:
“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
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.”
[23] Credibility is a
wide concept and does not rely on the honesty, bias or motives of a
witness alone, but also on memory and the
ability to observe and to
express such observations.
See Kriegler/Kruger:
Hiemstra –
Suid-Afrikaanse Strafproses
(6
th
Edition) on page 530.
[24] The complainant made
a statement to Inspector Mtshabe on the same day the incident
occurred. The facts were fresh in his memory.
In this he avers that
the appellant came and stood in front of him and pointed it “op my
kop en gesig drie (3) keer gesê hy gaan
my skiet”. Mnr Moffett
het dan een (1) keer op die grond langs my geskiet.” This is in
direct conflict to his evidence in court
where his evidence was that
the appellant stood about one metre from the complainant with the gun
in his hand just like one would
hold any item and the firearm was
pointing next to his legs. When the shot went off, he swerved out
the way.
[25] The
complainant also contradicted himself whether he was angry or not and
avers in cross-examination that he was humble at all
times towards
the appellant. This he did, I assume, to give the court the
impression that he was not the aggressor.
[26] 26.1 The
complainant’s evidence regarding the ability to swerve away from a
gunshot at one metre distance is highly improbable
if not impossible.
I also find it highly
improbable that the complainant would keep an even humble attitude
when both parties sketched a tense situation.
Further I find it
highly improbable that the complainant would challenge the
appellant, who has a firearm and he is unarmed, to
shout “shoot
me, shoot me” unless done, to provoke the situation further.
[27] 27.1 With reference
to the above I therefore cannot find that the complainant, as a
single witness, was a satisfactory witness
regarding all the material
aspects required to convict the appellant.
The State had to prove
beyond reasonable doubt that the appellant pointed the firearm at
him. Point means to aim direct or align.
From the complainant’s
contradictory evidence it is not clear where the firearm was
pointed at, head, legs of feet. The appellant
denies that he aimed
at the complainant. The prosecutor in the court
a quo
was
also not convinced that the State had proved a case beyond
reasonable doubt and said the following:
“…
but on these facts your worship
I would not be honourable to my profession to ask for a conviction in
this matter”.
[28] I find therefore
that the magistrate erred by not taking into account the
contradictions in the complainant’s evidence which
evidence was,
for purposes of a conviction, beyond reasonable doubt, unreliable and
unsatisfactory.
[29] Accordingly I make
the following order:
The appeal succeeds.
The conviction and sentence are set aside.
The order made in terms
of
section 103(4)
of the
Firearms Control Act, 60 of 2000
is also
set aside.
The order in question
is substituted with the following:
The appellant is not
declared unfit to possess a firearm.
_____________
D. MILTON, AJ
I concur.
______________
M.H. RAMPAI, J
On behalf of the
appellant: Adv. P.C.F. van Rooyen SC
Instructed
by:
Du
Toit Louw Botha Inc.
BLOEMFONTEIN
On
behalf of the respondent: Adv. R. Hoffman
Instructed
by:
Director
Public Prosecutions
BLOEMFONTEIN
/sp