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[2024] ZAKZPHC 45
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Mudlay v S (AR 356/2020) [2024] ZAKZPHC 45 (14 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
no:
AR 356/2020
In
the matter between:
VILVANATHAN
MUDLAY
APPELLANT
and
THE
STATE
RESPONDENT
Coram:
Mossop J and Nicholson AJ
Heard:
7 June 2024
Delivered:
14 June 2024
ORDER
On
appeal from:
Verulam Magistrates’ Court (sitting as the
court of first instance):
The
appeal against conviction and sentence is dismissed.
JUDGMENT
MOSSOP
J (NICHOLSON AJ concurring)
:
[1]
The appellant stood trial on two counts in the Verulam
Magistrates’ Court: a count of assault with intent to commit
grievous
bodily harm and a count of crimen injuria. He was acquitted
on the count of crimen injuria and was only convicted of assault on
the other count. He received a sentence of three months’
imprisonment, wholly suspended for three years on certain conditions.
He appeals against both his conviction and sentence with leave of the
court a quo.
[2]
At the commencement of the trial, the
record reveals that the accused pleaded not guilty and declined to
reveal the basis of his
defence. His counsel, Mr Wolmarans, informed
the court that:
‘
The
accused will make no statement at this stage but it will become
apparent what this matter is about during cross-examination.’
[3]
The complainant in both counts was the
appellant’s wife. Their marriage was experiencing some
difficulties. The complainant
testified that on 16 May 2018, she
happened to observe the appellant seated with another woman at a
restaurant in a shopping mall.
She concluded that he was being
unfaithful to her and took umbrage at his apparent brazen conduct. A
short while later, she went
to the appellant’s offices and
confronted him over his conduct. She alleged that whilst in the
boardroom at his office, he
assaulted her by hitting and kicking her,
all of which was denied by the appellant.
[4]
After the incident in the boardroom, the
appellant returned home at the end of his working day. The simmering
discontent between
the complainant and the appellant over the
observed restaurant encounter continued to build in intensity. It
finally erupted when
the complainant again confronted the appellant
about his conduct in the kitchen of the matrimonial home. This
ultimately led to
the appellant, inter alia, hitting the complainant
on her left ear with his flat hand.
[5]
Having done this, the appellant left the
house, ostensibly to obtain some medication for the damage done to
the complainant’s
ear by his blow. It is safe to assume from
this conduct that the appellant acknowledged that the complainant had
suffered an injury
because of his conduct. While he was away doing
this, the injury became excessively painful to the complainant. She
felt that she
could not wait for the appellant’s return with
the medication and considered it necessary to forthwith seek
specialist intervention.
She accordingly telephoned him on his
cellular telephone and requested him to immediately return home and
to instead take her to
the hospital. The appellant refused this
request. Consequently, she left the home on her own before the
appellant returned with
the medication and drove herself to the
trauma unit of a local hospital.
[6]
At the hospital, the complainant was seen
immediately by Dr Nicholas Raymond (Dr Raymond), who later testified
at the trial. He
diagnosed a traumatic tympanic membrane perforation
to her left ear and a haematoma to her right shin. Given the alleged
circumstances
under which the injuries were sustained, the
complainant was also seen by several experts who formed part of what
was called ‘the
crisis team’. These included a
psychologist, a psychiatrist, and an ear, nose and throat specialist.
She was subsequently
hospitalised for five days while she received
treatment.
[7]
When he testified at the trial, Dr Raymond
confirmed his findings and stated that the injury to the
complainant’s eardrum
would have required the infliction of
‘significant force’ to cause it. Dr Raymond’s
evidence was not seriously
challenged by the defence. In fact, none
of the facts just narrated appear to be in dispute.
[8]
Only two witnesses were called by the
State, the complainant and Dr Raymond. The statement made by counsel
for the appellant that
what the matter was about would emerge from
cross-examination could only have been intended to refer to the
cross-examination of
the complainant, for Dr Raymond had no personal
knowledge of the events that preceded the complainant’s arrival
at the hospital.
[9]
The appellant’s version was revealed
to the complainant when she was cross-examined. He alleged that he
had been at the restaurant
with a client. When the complainant
confronted him at home, he alleged that she had verbally abused him
and had used coarse and
unbecoming language about both his mother and
sister. She had then pushed him from behind and commenced hitting him
repeatedly
on the back of his head, all the while swearing at him,
and continuing to use unbecoming language about his mother and
sister.
The following was then put to her:
‘
He
says that he could no longer take this abuse from you and he could no
longer put up with you hitting him on the back of the head
and he
swung around with an open hand and struck out at you once. He is not
even sure exactly where that blow landed.’
[10]
The appellant’s professed uncertainty
regarding his own conduct and which part of the complainant’s
body he admitted
striking was not of a permanent duration. When he
testified in his own defence, he agreed with the following leading
propositions
put to him by Mr Wolmarans:
‘
So
do I understand you correctly she was pushing and hitting you from
behind? --- Yes.
You turned and you swung
your hand around and it hit her on the ear? --- Yes.’
[11]
The appellant went on to agree that when he
struck the complainant on her left ear, the blow was of sufficient
force to knock her
off her feet and to the floor. This would seem to
accord with the evidence of Dr Raymond concerning the degree of force
that would
have been necessary to cause the injury to the
complainant’s ear. The appellant also indicated under
cross-examination by
the prosecutor that he had also pushed the
complainant.
[12]
Given these admissions by the appellant, it
is uncertain what his defence was. Was it that he had been provoked
by the complainant?
Or had he acted in private defence? Or had he
merely lost his temper? We sought some clarity on this from Mr
Wolmarans. He indicated
that the defence relied upon was private
defence. There is nothing in the record of proceedings that indicates
that this was, in
fact, the defence relied upon. Indeed, there is
also nothing in the appellant’s heads of argument that
indicates this nor
were there any submissions that the magistrate had
erred in rejecting that specific defence.
[13]
To
successfully establish the defence of private defence, the party
relying upon it must establish that the defence was directed
against
the attacker, that the defensive act was essential in order to
protect the interest threatened, that there was a reasonable
relationship between the attack and the defensive act, and that the
attacked person must be aware that he is acting in private
defence.
[1]
[14]
But for the first requirement, it seems to
me that none of the other essential requirements were met. The second
requirement dictates
that the performance of the defensive act must
be the only way in which the party raising the defence can avert the
threat he faces.
Accepting the appellant’s version that the
complainant was physically attacking him, there were several
alternatives available
to him to avoid what was occurring: he could
have turned and faced the complainant and admonished her to stop what
she was doing;
alternatively, he could have grabbed her hands or arms
and physically stopped her from striking him. After all, he was not
being
set upon by a person physically stronger than himself nor did
he ever state that he felt his wellbeing was in danger.
[15]
The appellant suffered no injuries arising
out of the complainant’s conduct. In my view, his response was
out of proportion
to what he was allegedly being subjected to. The
third requirement was thus not met. It would not be unfair to state
that our society
is generally a violent one and that people seem to
resort to violence far too quickly when faced with taxing
circumstances. Martin
Luther stated that nothing good ever comes from
violence. He was correct.
[16]
As regards the final requirement, the
appellant’s version that he could no longer take the
complainant’s alleged swearing
and her striking the back of his
head appears to be the high-water mark of his defence. I am not sure
that in advancing this version
the appellant himself appreciated that
he was acting in private defence. That explanation appears to reveal
not a reliance upon
private defence but merely an exasperation with
the alleged conduct of the complainant. There is no suggestion of an
anticipation
of a physical injury that would entitle him to respond
with superior force.
[17]
In
assessing the appellant’s version, I have cautioned myself
about adopting an armchair critic’s view of what occurred.
I
was not there, and I did not experience what the appellant
experienced. But I nonetheless adhere to the view that his conduct
was not justified in the circumstances. Society requires that there
must be some degree of proportion between the attack and the
response.
[2]
Where
excessive force is applied to a relatively trivial threat, it is not
justified and it is, thus, unlawful.
[18]
That there was some
provocation in this matter appears entirely likely. The complainant
would not let the topic of the appellant’s
alleged infidelity
rest and raised it both at his office and later at the matrimonial
home. It appears that she was determined
to obtain a confession from
him, and she appears to have acted with a degree of dogged
persistence.
[19]
But
even if there was a degree of provocation,
since
the decision in
S
v Eadie,
[3]
the position is that provocation is not a complete defence to a
criminal charge. In
Eadie
,
the Supreme Court of Appeal brought an end to the defence of
non-pathological incapacity based upon provocation. Thus, provocation
can no longer result in an acquittal, but may be viewed as a
mitigatory feature. As Navsa JA stated in that matter:
‘
The
deceased's aggressive and provocative behaviour did not entitle the
appellant to behave as he did. It must now be clearly understood
that
an accused can only lack self-control when he is acting in a state of
automatism. It is by its very nature a state that will
be rarely
encountered.’
[4]
[20]
It
seems to me that the appellant simply lost his temper based upon the
complainant’s alleged conduct. If he simply lost his
temper and
lashed out at the complainant in rage, then it is well to bear in
mind what was said in
S
v Kok
,
[5]
namely:
‘
Loss
of temper, that is to say a failure to control one's emotional
reactions, is not to be confused with a loss of cognitive control
(see
S
v Henry
1999
(1) SACR 13
(SCA)
at
20
d
-
f
)
.’
[21]
The
law is crafted so that it applies to all those who are subject to it,
and it treats all as equals. It cannot be selectively
applied to
afford those who do not control their tempers a defence against
allegations of criminal conduct at the expense of those
who
habitually control their tempers. The message must be clearly
transmitted that consciously giving in to anger and responding
with
violence will not be tolerated,
nor
will the striking of women.
[22]
In argument at the trial and, indeed,
before us, it was suggested by Mr Wolmarans that the complainant had
not been a satisfactory
witness and that her version of events should
be rejected. Certain criticisms were made about her evidence. The
record reveals
that her precise recollection of the events and the
sequence of the blows that she received were imprecise. She alleged
that she
was kicked and punched but Dr Raymond saw no signs of
injuries that could have been anticipated to manifest themselves if
that
had occurred. Some of the criticism of her evidence accordingly
finds traction, but I am not satisfied that all the criticisms
levelled at her materially affected her credibility. Her injuries,
which were objectively verified by Dr Raymond, provided support
for
her evidence. However, assuming that Mr Wolmarans is correct in
offering such criticisms, the alleged weaknesses in the complainant’s
evidence do not, in my view, assist the appellant. This is because,
on his own version, the appellant admitted landing a blow on
the
complainant’s ear and pushing her and did not dispute that the
complainant suffered the injury to her ear that Dr Raymond
described.
The only inference to be drawn is that the blow the appellant
admitted landing on the complainant caused that injury.
[23]
In
response to the proposition that the appellant was guilty on his own
version of assault, Mr Wolmarans submitted that the appellant
ought
not to have been placed on his defence by the court a quo and ought
then and there to have been discharged in terms of s 174
of the
Criminal Procedure Act 51 of 1977. An application in terms of this
section was brought by the appellant at trial but was
refused by the
magistrate. In my view, the magistrate was correct to do so. There
was evidence before him from the complainant
that she was struck on
her left ear by the appellant and Dr Raymond confirmed physical
damage to that ear. Because
a
positive act coupled either with negligence or with intent which
causes physical harm to another is considered in our law to be prima
facie unlawful,
[6]
the
appellant’s application for a discharge was correctly refused.
[24]
The appellant did not establish a legally
justifiable explanation for his conduct. In both pushing the
complainant, which he admitted
doing, and hitting her on the left
ear, which he also admitted doing, he committed an assault, as:
‘
Assault
consists in any unlawful and intentional act or omission:
(a) which
results in another person’s bodily integrity being directly or
indirectly impaired, or
(b) which
inspires a belief in another person that such impairment of her
bodily integrity is immediately to take
place.’
[7]
Slapping, pushing, and
kicking another person would unequivocally constitute an impairment
of the bodily integrity of the person
who was the recipient of that
conduct.
[25]
Accordingly,
it seems to me that this appeal does not have a future. The grounds
upon which an appeal court can interfere in the
decision of a lower
court are limited in the absence of any misdirection.
[8]
Even
if the magistrate incorrectly accepted all the evidence of the
complainant, about which I make no finding, on his own version,
the
appellant was guilty of assault. He was correctly convicted.
[26]
The sentence that the appellant received,
in my view, is a sensible one given the fact that at the time of the
trial, the complainant
and the appellant had apparently settled their
differences and had reconciled. We were informed from the bar during
argument that
the reconciliation ultimately failed, and the
complainant and appellant are now divorced. The sentence appears to
acknowledge the
circumstances under which the appellant acted and the
provocation to which he was exposed. I am accordingly satisfied that
the
magistrate did not err in sentencing him as he did.
[27]
I would therefore propose that the appeal
against conviction and sentence be dismissed.
MOSSOP J
I agree.
NICHOLSON AJ
APPEARANCES
Counsel
for the appellant:
Mr
J W B Wolmarans
Instructed
by:
V
Chetty Incorporated
Suite
3
6
Rydall Vale Office Park
Douglas
Saunders Drive
La
Lucia Ridge
Durban
Counsel
for the state:
Mr
M M Mtukushe
Instructed
by:
Director
of Public Prosecutions
325
Pietermaritz Street
Pietermaritzburg
[1]
See
S V Hoctor
Snyman’s
Criminal Law
7
ed (2020) at 88-93.
[2]
S
v Steyn
[2009] ZASCA 152
;
2010 (1) SACR 411
(SCA) para 19.
[3]
S
v Eadie
2002
(1) SACR 663
(SCA)
.
[4]
Ibid para 70.
[5]
S
v Kok
2001
(2) SACR 106
(SCA) para 22
.
[6]
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 12.
[7]
Cingo
and another v SQ Risk Security Services
[2024]
ZAECMHC 9 para 33, quoting the definition of assault provided in S V
Hoctor
S
nyman’s
Criminal Law
7 ed (2020) at 395.
[8]
S
v Francis
1991
(1) SACR 198
(A)
at 198j-199a in the headnote;
Mathuthu
and others v S
[2024] ZASCA 50
para 14.