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[2006] ZAFSHC 97
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Shembele v S [2006] ZAFSHC 97 (31 August 2006)
IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal no: A36/2006
MOSES
SHEMBELE
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
MALHERBE, JP
et
MILTON, AJ
_____________________________________________________
JUDGMENT:
MILTON, AJ
HEARD
ON:
21
AUGUST 2006
_____________________________________________________
DELIVERED ON:
31
AUGUST 2006
[1] The appellant, a 28
year old man, was found guilty on the 20
th
July 2004 of assault with the intent to do grievous bodily harm in
the Magistrateâs court at Hennenman, and was sentenced to a
fine of
R600 or 30 days imprisonment with a further 5 months imprisonment
conditionally suspended for 4 years. The appellant was
charged with
a co-accused who was also found guilty of assault with the intention
to do grievous bodily harm, however not with the
same object as the
appellant.
[2] The appellant
represented himself during his trial and the presiding magistrate,
Mr. I.C.N. de Villiers, furnished no recorded
reasons for the
conviction or sentence.
[3] The appellant
thereafter lodged an application for leave to appeal, to the court
a
quo
,
which was refused on the 2
nd
September 2004.
[4] The appellant
thereafter lodged a petition for leave to appeal to the above court
against the conviction and sentence. The leave
to appeal against the
conviction only was granted on the 15
th
August 2006 under case number P198/04.
AD MERITS
[5] The basis of the
appellantâs appeal is that the State could not prove beyond
reasonable doubt the identity of the appellant.
[6] It needs to be
mentioned that the charge sheet reflects that both the applicant and
his co-accused were charged with assault with
the intent to do
grievous bodily harm in that they assaulted the complainant by
stabbing him with bottles. The court found on the
evidence however
that the applicant in fact assaulted the complainant with a panga.
The charge sheet was never amended before sentence.
[7] The complainant,
Aaron Mofokeng, was very seriously injured on the 28
th
February 2004 after allegedly being assaulted with a panga and a
broken bottle. He received serious wounds to his face and his back
for which he received stitches and was hospitalised. He testified
that he was at a tavern where an argument broke out with the
appellant
earlier the evening. He admitted to being drunk that
night. When he decided to leave the tavern he was chased by a crowd
of people,
all known to him, and whom he saw clearly. They caught up
with him, whereafter the applicant hit him with a panga once in the
face
and the co-accused stabbed him with the bottle. The people in
the group also assaulted him. A woman thereafter arrived on the
scene
and stopped the fight. He could see well since there were
lights in the street.
[8] The second state
witness thereafter testified that she saw a group of people
assaulting a person. There were no lights in the
vicinity but she
went up to them and chased the people away. She found the
complainant bleeding on the scene. She saw no weapons
except a
broken bottle. No one in the group had weapons. She did not see the
appellant there.
[9] The appellantâs
evidence was that he admitted having had a fight with the complainant
earlier in the evening with fists. He
did not injure the
complainant, he only heard later from the tavern owner what happened
after he had left the tavern.
[10] The appellantâs
co-accused, Simon Maloka, gave evidence that he saw the complainant
and the appellant fighting earlier but
that the appellant left the
tavern. He thinks he went home. The complainant left the tavern but
came back with a pair of scissors
and started throwing everybodyâs
beer out of their bottles whereafter the people at the tavern chased
him. He denied having been
part of the chase or having assaulted the
complainant.
[11] The
appellant called two witnesses. The first witness testified that the
appellant had a fight with the complainant earlier
in the evening and
then they left the tavern together with other people. The second
witness saw the appellant and the complainant
fighting but that the
tavern owner stopped the fight. The complainant left only to return
with a scissors and a stick. This witness
said that the complainant
was looking for the appellant and he was aggressive. Complainant was
later chased from the tavern.
[12] Although the
presiding officer recorded no reasons for finding the accused guilty,
it can be accepted that his reasons are the
same as his reasons for
refusing the appellantâs leave to appeal. He was of the opinion
that:
the complainant
identified the appellant as the person who assaulted him with the
panga;
since the appellant was
involved in the first fight with the complainant it was âvery
probableâ that the appellant also took
part in the fight outside
the tavern;
the complainant was not
a single witness and his version is corroborated by the second
witness who saw a group of people assaulting
the complainant.
the defence witnesses
do not take the matter further. They do not know if the accused
took part in the assault;
the appellant did not
dispute parts of the evidence which is to his detriment.
[13] Where there has been
no misdirection of fact by the trial Judge, or magistrate, the
presumption is that the conclusion is correct
and the Appellate Court
will only reverse the judgment when it is convinced that it is
incorrect.
[14] This may happen
where the presiding officer of the court
a
quo
may
have misdirected on the fact; where the reasons are either on the
face value unsatisfactory or the record might show them such
or show
that some facts or probabilities were overlooked. See
R
v DHLAMAYO
1948 (2) SA 677
A and
S
v FRANCIS
1991 (1) SALR 198
A at 204 D.
[15] After considering
the facts placed before the court
a
quo
read with the presiding officerâs reasons I cannot, with respect,
agree with the presiding officerâs reasons for the conviction
of
the appellant.
[16] The
State must prove beyond reasonable doubt that the appellant assaulted
the complainant as reflected in the charge sheet.
The test is not
based on probabilities.
[17] It
is common cause that:
the complainant was
drunk on the night of the event.
the appellant and the
complainant had had an argument earlier in the evening.
a crowd of people
chased the complainant a little later on in the evening, caught up
to him whereafter he was very seriously injured.
[18] The complainant
avers that the appellant was in the crowd of about 20 people who he
can all recognise, and who all assaulted
him. Appellant assaulted
him with a panga once. This evidence is not corroborated by any
other witness, neither the second State
witness, nor any of the
witnesses called by the appellant.
[19] The
second witness could not identify the appellant at the scene of the
assault and neither did she see a panga at the scene,
only a broken
bottle which correlates with the charge sheet.
[20] For all practical
purposes, the complainant is then a single witness, specifically
regarding the question of identity and his
evidence must be evaluated
with the utmost caution.
[21] The evidence of the
appellant is that he left the tavern after having a previous physical
encounter with the complainant. The
two witnesses called by the
applicant corroborate his version that he left the tavern and did not
return and that the complainant
was the aggressor when he returned
with a scissors and proceeded to throw out the other visitorsâ
drinks and was thereafter chased.
[22] It is the duty of
the court to evaluate both the case for the State and the defence,
not in isolation but together.
S
v RADEBE
1991 (2) SACR 166
(T).
[23] There is serious
doubt that the complainant could correctly identify the appellant at
the incident where he was severely injured
since he was not only
drunk, but also surely in an emotional state, since he had
specifically returned to the tavern armed and with
a motive to fight,
whereafter he was chased by an aggressive crowd which must have
caused some sort of panic that could have clouded
his cognitive
observation. The doubt that I have regarding the accuracy of the
identification of the appellant is strengthened by
the fact that no
other witness either for the State or the defence, placed the
appellant on the scene, and neither was a panga seen
in the vicinity
of the scene of the crime.
[23] Although a great
amount of sympathy lies with the complainant who was severely
injured, the State could not prove beyond reasonable
doubt on the
facts placed before the court that the appellant played any part
therein, and the appeal must therefore succeed.
[25] The conviction and
sentence are therefore set aside.
______________
D. MILTON, AJ
I concur.
__________________
J.P.
MALHERBE, JP
On behalf of appellant:
R.J. Nkhahle
Instructed
by:
Bloemfontein
Justice Centre
BLOEMFONTEIN
On behalf of
respondent: Adv. D.W. Bontes
Instructed
by:
The
Director:
Public Prosecutions
BLOEMFONTEIN
/em