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2024
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[2024] ZALMPPHC 110
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Wolmarans v S (A21/2022) [2024] ZALMPPHC 110 (17 September 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: A21/2022
(1)
REPORTABLE: YES/NO
(2)
OF INTEREST TO THE JUDGES: YES/NO
(3)
REVISED.
DATE:
SIGNATURE:
In
the matter between:
JAN
DANIEL
WOLMARANS
APPELLANT
And
THE
STATE
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The appellant appeared in the district magistrate court sitting in
Lephalale on one
count of malicious damage to property, and one count
of assault common. He was found not guilty and discharged on the
count of
malicious damage to property, and convicted on the count of
assault common. He was sentenced to a fine of R2000.00 or 3 months
imprisonment of which R1000.00 or 1½ months imprisonment was
suspended for 3 years on condition that the appellant is not
convicted of assault common during the period of suspension. The
appellant is appealing against both conviction and sentence with
the
leave of the court
a quo
.
[2]
The facts of the case are briefly as follows. According to the State
version, on 26
th
November 2016 Sebastian Rossouw
(complainant) was in the company of Marushell Visser (second State
witness) at the home of Fracois
Kampher (first State witness). The
complainant was taking care of the home of the first State witness
who had gone on holidays.
The complainant and the second State
witness were engaging in a conversation when the appellant entered
the outside area of the
house on the upstairs where they were
sitting.
[3]
When the complainant saw the appellant he tried to put down his glass
of wine on the
stand. Whilst the complainant was in the process of
putting down the glass of wine, the appellant pushed the complainant
onto the
couch he had been sitting on, hit the complainant with a
fist, pulled the complainant to the ground and put his foot on his
head
telling the complainant that he will hit him until he was dead.
The complainant requested the second State witness to open the gate
so that the appellant could leave. Thereafter the appellant left the
premises without saying anything.
[4]
Doctor Makakase who had completed the complainant J88 has testified
that he had examined
the complainant on 26
th
November
2016. The complainant was complaining of pain on the scalp right
side, both sides of the neck and right side of his face.
His clinical
finding was that the complainant was having a small bruise on the
right side of his face. The cross-examination of
the State witnesses
by the appellant’s counsel was more about the contradictions in
their
viva voce
evidence and police statements, more
especially the second State witness who seems to have deposed 3
contradictory police statements.
[5]
According to the version of the appellant, on the date of the
incident, he and the
second State witness were in a love
relationship. On that date the appellant who was in the company of
his friend Kobus De Meyer
have accompanied a female friend to
Elephant Sports bar where she was employed. They were using Kobus
bakkie, and Kobus was the
driver. Whilst standing at the Sports Bar,
the appellant was informed that the complainant had left with the
second State witness
and went to the first State witness’s
homestead.
[6]
The appellant together with his friend drove to the first State
witness’s homestead.
On arrival at the first State witness’s
homestead, appellant rang the doorbell and even called out without
any response.
They then manoeuvred the bakkie to the right next to
the wall of the property. The appellant climbed onto the bulbar of
the bakkie,
thereafter climbed onto the wall of the property and
squeezed himself through a space between the wall and the electric
wires.
[7]
On entering the premises, the appellant went upstairs of the house
and found the complainant
and the second State witness. The appellant
entered the house been normal, and in a calm voice told the
complainant to stay out
of his way. The complainant put down his
glass of wine, and approached the appellant. The appellant and the
complainant grabbed
each other and a scuffle ensued. The appellant
lowered the complainant to the floor in a controlled manner.
Thereafter the appellant
left the complainant on the floor and walked
away. As the appellant was walking away, he requested the second
State witness to
open the gate for him so that he can leave. The
appellant did not engage the second State witness any further.
[8]
The appellant’s appeal is directed against both conviction and
sentence. It
is trite that a court of appeal will not readily
interfere with factual findings of the trial court unless it is clear
from the
record that the trial court had materially misdirected
itself or erred to the extent that its findings were vitiated and
fell to
be set aside. The appeal court must also remain cognisant
that the trial court has the advantage of having observed and heard
the
witnesses. (See
Mnyandu
v Padayach
[1]
).
[9]
In criminal proceedings it is trite that the State bears the onus to
prove the guilt
of the accused beyond reasonable doubt. The accused
version cannot be rejected solely on the basis that it is improbable,
but only
once the trial court has found credible evidence that the
explanation given by the accused is false beyond reasonable doubt.
The
corollary is that, if the accused’s version is reasonably
possibly true, the accused is entitled to an acquittal. The
appellant’s
conviction can therefore only be sustained after
consideration of all the evidence and his version of events is found
to be false
beyond reasonable doubt. (See
Oosthuizen
and Another v S
[2]
).
[10]
The appellant has been convicted of one count of assault common. In
the Oosthuizen case above,
it was held that Snyman Criminal Law 5
th
Edition page 455
defines the elements of the crime of assault as follows: (a) conduct
which results in another person’s bodily
integrity being
impaired or the inspiring of a belief in another person that such
impairment will take place; (b) unlawfulness;
and (c) intention. It
was further stated that the crime of assault can be committed even
though the physical injuries were slight.
Physical injuries are not a
requirement, the crime of assault can be committed even where there
is no physical harm, but where
there is a threat of immediate
personal violence in circumstances that lead the person threatened
reasonably believing that the
other intends and has the power to
immediately carry out the threat. (See
R
v Gondo
[3]
).
[11]
The appellant had pleaded not guilty to both counts and elected to
remain silent, and had further
put the State to prove the allegations
levelled against him. However, the appellant later during the trial
placed himself on the
scene by conceding that he was at the first
State witness’s homestead where he found the complainant and
the second State
witness. He had a scuffle with the complainant where
he lowered the complainant to the ground in a controlled manner. A
scuffle
also amounts to a fight and for a fight to ensues there will
have to be an aggressor.
[12]
The appellant was informed that the complainant had left with his
girlfriend who was the second
State witness. The appellant went to
where the complainant was, rang the doorbell and shouted but there
was no response. The appellant
had risk to be electrocuted by
squeezing himself between the wall and the electric wires for him to
be able to gain access into
the premises in which the complainant and
the second State witness were. That in itself is an indication that
it was not a friendly
visit, and the appellant should have been
furious to take such a risk of him been electrocuted just for him to
gain access to the
premises.
[13]
The complainant had consulted a medical doctor after the alleged
assault. The J88 completed by
the doctor who had examined the
complainant had recorded that the complainant had a small bruise on
the right side of his face,
and further that the complainant was
complaining of pains on the right side of the scalp, both sides of
the neck and right side
of the face. The conclusion of the medical
doctor was that the complainant had sustained multiple soft tissue
pain and a small
bruise on the face possibly injured by a blunt
object. Since the appellant does not dispute that he had a scuffle
with the complainant,
the only conclusion is that the complainant had
sustained these injuries during the scuffle. For the complainant to
sustain these
minor injuries shows that the complainant was not put
on the ground in a control manner as testified by the appellant. If
the appellant
and the complainant were engaged in a scuffle, there
will be no time for either party to be gentle with each other.
[14]
The appellant during the trial did not offer any defence to his
actions, but has concentrated
more on the contradictions between the
State witnesses’
viva voce
evidence and their written
police statements. The second State witness in her first police
statement has stated that she saw the
appellant and complainant
grabbing each other, but did not see if they hit each other or not.
In second police statement, the second
State witness has stated that
she saw the appellant grabbing the complainant and assaulting him.
The State witness’s second
police statement is in line with her
viva voce
evidence in court.
[15]
In
S v
Bruiners and Another
[4]
it was held that in order to discredit a State witness on the basis
of his affidavit, it was still necessary that there had to
be a
material deviation by the witness from his affidavit, before any
negative inference could be drawn. The purpose of an affidavit
was to
obtain the details of an offence, so that it could be decided whether
a prosecution should be instituted against the accused.
It was not
the purpose of such an affidavit to anticipate the witness’s
evidence in court, and it was absurd to expect of
a witness to
furnish precisely the same account in his statement as he would in
his evidence in open court.
[16]
In both police statements, the second State witness had seen that the
appellant and respondent
had grabbed each other. This version
supports the version of the complainant. The appellant himself had
testified that he had a
scuffle with the complainant. There is
evidence that after the scuffle and/or grabbing, the complainant had
consulted a medical
doctor who had found that the complainant had
sustained some minor bruises and was also complaining of the pains.
The scuffle and/grabbing
was between the appellant and the
complainant, and there was no third person involved in which case it
could have been said that
there was a possibility that second State
witness might have not seen properly as to who was grabbing who.
[17]
The manner in which the appellant had gained access to the house
where the complainant and second
State witness were in, suggest that
the appellant came furious and ready to deal with the complainant as
the complainant had left
with his girlfriend without his knowledge
and consent, and when he rings the doorbell and even shout for them
to open for him,
there was no response. In my view, the
contradictions in the second State witness’s police statement
and
viva voce
evidence are of a minor nature and not material.
The evidence of this case taken in its totality and holistically,
shows that the
appellant was aggressor on the date in question. Even
if the evidence of the second State witness is excluded, the version
of the
complainant and that of the appellant still shows the
appellant as the aggressor.
[18]
In my view, the court
a quo
has correctly assessed the
evidence presented before it in its totality and holistically. The
totality of the evidence presented
exclude any doubt about the guilt
of the appellant. It therefore follows that the appeal against
conviction must fail.
[19]
Turning to sentence, it is trite that sentencing is the prerogative
of the trial court, and should
not lightly be interfered with. An
appeal in which the interference with sentence will be justified is
when it is found that the
trial court has misdirected itself in some
respect or if the sentence imposed was so disturbingly
disproportionate that no reasonable
court would have imposed it. The
test is not whether the trial court was wrong, but whether it
exercised its discretion properly.
(See
S
v Romer
[5]
).
Before this court counsel for the appellant had correctly abandoned
the appellant’s appeal on sentence, and this court
will not
take this issue any further. By abandoning the appeal on sentence,
the appellant is conceding that there is nothing to
fault the court
a
quo
on
sentence.
[20]
Accordingly, the following order is made:
20.1 The appeal against
both conviction and sentence is dismissed.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I AGREE
MORGAN AJ
ACTING JUDGE OF THE
HIGH OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
appellant
: Adv MM De Jager
Instructed
by
: Van Velden-Duffy Inc
Counsel for the
respondent
: Adv P Van Der Kooi
Instructed
by
: Office of DPP Polokwane
Date
heard
: 13
th
September 2024
Electronically
circulated on
: 17
th
September 2024
[1]
2017
(1) SA 151
(KZA) at para 28
[2]
[2019]
ZASCA 182
;
2020 (1) SACR 561
(SCA) (2 December 2019)
[3]
1970
(2) SA 306 (R)
[4]
1998
(2) SACR 432
(SE)
[5]
2011
(2) SACR 153
(SCA) at paras 22 and 23