Bierman and Another v S [2007] ZAFSHC 139 (30 November 2007)

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[2007] ZAFSHC 139
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Bierman and Another v S [2007] ZAFSHC 139 (30 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: LA147/2004
In the appeal between:
M D BIERMAN
1
st
Applicant
B
D BIERMAN
2
nd
Applicant
and
THE
STATE
Respondent
CORAM:
H.M. MUSI, J
et
EBRAHIM,
J
_____________________________________________________
JUDGMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
28 SEPTEMBER 2007
_____________________________________________________
DELIVERED ON:
30 NOVEMBER 2007
_____________________________________________________
[1] The two applicants
were convicted on the 17
th
May 2004 in the District Court, sitting at Warden. The 1
st
applicant was convicted of the crime of assault and sentenced to pay
a fine of R500,00 or undergo five months imprisonment. The
2
nd
applicant was convicted of the crime of assault with intent to do
grievous bodily harm and sentenced to pay a fine of R2000 or undergo
12 months imprisonment. Both applicants have since paid their
respective fines. An application for leave to appeal against both
their conviction and sentences was refused by the presiding
magistrate.
[2] The applicants
thereafter approached this court by way of the petition procedure set
out in
section 309C
of the
Criminal Procedure Act No. 51 of 1977
as
amended. On the 22
nd
of September 2004 this court denied the petition and the applicants
thereafter lodged a formal application for leave to appeal against
both the conviction and sentence in terms of section 21(4)(b) of the
Supreme Court Act No. 59 of 1959 as amended. During argument,
the
applicants restricted their application to leave to appeal against
the conviction only. The main ground of appeal in respect
of the
conviction is that the learned trial magistrate erred in making a
finding that it was improbable that the complainant would
fall off
the bakkie without something having happened to cause him to fall. I
quote from the judgement of the court
a
quo
:
“
Dit is vir die hof moeilik om te
glo dat die klaer bloot nadat beskuldigde 2 op die voertuig klim
agteruitloop en net afval sonder
dat daar enigiets gebeur.”
A further ground of
appeal is that the court
a
quo
erred in rejecting the version of the applicants as not being
reasonably possibly true.
[3] Mr. Nel, who appeared
on behalf of the applicants in this application, embellished on these
grounds in argument by emphasising
the contradictions in the evidence
of the complainant and that of his witness, Malinga, concerning the
circumstances surrounding
the fall. We were also reminded of the
test to be applied in applications of this nature as set out in
REX
v NGUBANE AND OTHERS
1945 AD 185
namely, that the question to be asked is whether there is
a reasonable prospect of success of the appeal were leave to be
granted.
[4] Prior
to answering this question it is necessary to set out the evidence in
this matter briefly.
4.1 The complainant in
this matter had started a fire on his farm which thereafter spread to
the second applicant’s farm which was
adjacent to his. The
complainant testified that whilst he was busy trying to temper the
flames both the applicants arrived at his
farm. Both swore at him
and assaulted him and the 2
nd
applicant climbed up onto his bakkie on which he was standing near
the rear opening of the bakkie, approached him and assaulted him
with
his fists in the left rib area. Thereafter the 2
nd
applicant pushed the complainant by pressing against his shoulder,
causing him to fall off the bakkie. Whilst he was on the ground
the
1
st
applicant grabbed him around the neck, forced him up against the rear
flap of the bakkie and throttled him.
4.2 Malinga, his employee
on the other hand, testified that he saw both applicants approach the
complainant. Both swore at and assaulted
the complainant. The 2
nd
applicant climbed onto the bakkie. He took fright and ran away from
the scene. At a distance of approximately 20 to 30 metres he
stopped
and continued to observe what was going on in the bakkie. He saw the
2
nd
applicant grab the complainant and throw him off the bakkie, after
which the 1
st
applicant throttled him in the manner described by the complainant.
According to Malinga the 1
st
applicant also struck the complainant in the ribs with his right
hand.
4.3 In analysing these
contradictions so as to decide upon the proper weight to be attached
thereto, I have found that not much turns
thereon in view of the fact
that these were fast moving events which were being witnessed by
Malinga from a distance of approximately
20 – 30 metres.
Accordingly discrepancies in his evidence and that of the complainant
were bound to occur. What is of importance
is that Malinga
corroborates the complainant on the essential aspects of his
evidence, namely that he did not fall off the bakkie
as a result of
losing his balance as the applicants testified, but as a result of
being pushed off the bakkie, alternatively thrown
off the bakkie, by
the 2
nd
applicant.
[5] It is trite law that
the probabilities of a case are a useful guide in determining issues
of credibility. It is therefore necessary
to analyse the evidence of
the complainant and his witness as well as the evidence of the
applicants in the light of those probabilities.
5.1 Both the applicants
denied assaulting the complainant at all but admitted that they were
very angry with the complainant for having
started a fire on his farm
which had spread to the 2
nd
applicant’s farm and caused extensive damage. The 1
st
applicant admitted that aggressive words were used but could not
remember the specific words used. The 2
nd
applicant denied that any swearing took place saying that if in fact
he had used the words “bliksem” and “moer”, he would
have
followed through by putting his threats into action. Both applicants
denied assaulting the complainant but testified that the
2
nd
applicant climbed onto the complainant’s bakkie in order to check
whether the fire extinguisher belonging to the complainant was
in
fact broken and that whilst the 2
nd
applicant was in the process of climbing up the vehicle the
complainant retreated towards the rear opening of the vehicle, lost
his
balance and fell to the ground.
5.2 An
analysis of the applicants’ evidence as well as the evidence of the
complainant and his witness Malinga show the following
common cause
facts:
5.2.1 On their own
admission the applicants were extremely angry and justifiably so, I
may add, that the complainant had failed to
contain the fire he had
started on his farm and which then spread to the 2
nd
applicant’s farm.
5.2.2 In
their angered state both applicants sought out the complainant.
5.2.3 The
1
st
applicant corroborated the evidence of both the complainant and
Malinga that the 2
nd
applicant swore at the complainant.
5.2.4 The
2
nd
applicant climbed on to the complainant’s bakkie on which the
complainant was standing.
5.3 In these
circumstances, it is difficult to believe that all that the 2
nd
applicant wanted was to examine the complainant’s fire
extinguisher. It is far more probable that the 2
nd
applicant climbed onto the bakkie for the express purpose of giving
vent to his anger at the complainant for having caused him the
financial loss which he must necessarily have suffered as a result of
the fire spreading from the complainant’s farm to his farm
and
causing damage. I find therefore that the probabilities of the case
favour the version of the complainant and his witness Malinga
that
both applicants assaulted the complainant in the manner described by
him I find therefore that the complainant did not fall
off the bakkie
but was pushed off the bakkie by the 2
nd
applicant and thereafter throttled by the 1
st
applicant. Such a version seems to me to be more capable of honest
belief and in line with the proven facts of the case.
[8] The application for
leave to appeal against the conviction is thus wholly without merit
and no reasonable prospect exists that
another court may come to a
different conclusion on the totality of the evidence. The
application is accordingly dismissed.
_____________
S. EBRAHIM, J
I
concur.
_____________
H. M. MUSI, J
On
behalf of appellants: Mr. L. Strating
Instructed by:
Symington & De Kok
BLOEMFONTEIN
On
behalf of respondent:
Instructed by:
The Director: Public Prosecutions
BLOEMFONTEIN
/em