THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case Number: A 56 / 2024
In the matter between:
TARIQ DAVIDS Appellant
and
THE STATE Respondent
Coram: Wille et Kusevitsky, JJ
Heard: 16 August 2024
Delivered: 28 August 2024
___________________________________________________________________
JUDGMENT
WILLE, J:
INTRODUCTION
[1] This is an appeal from the lower court against a conviction and sentence of
assault with intent to cause grievous bodily harm and the sentence imposed in
connection with a conviction on a single count of kidnapping . The appellant w as
convicted of one count of assault with intent to cause grievous bodily harm and one
count of kidnapping. This limited appeal is with us because of a favourable result of a
petition by the appellant.1
[2] The appellant was sentenced to five years imprisonment for the kidnapping
offence and a period of three years imprisonment for the offence of assault with
intent to cause griev ous bodily harm . The latter sentence was ordered to be served
concurrently with the sentence imposed in connection with the former charge. The
offence of kidnapping was defined in the charge sheet in the lower court concerning
the minimum sentencing targeted legislation dealing with matters of this nature.2
[3] The a ppellant was legally represented in the court of the first instance. He
pleaded not guilty to the offences as preferred against him by the respondent and
elected not to advance any plea explanation. The appellant was initially charged with
murder but was acquitted and convicted on the competent verdict of assault with the
intent to cause grievous bodily harm.3
[4] Leave to appeal was granted against his conviction and sentenc e of the
offence of assault with intent to cause grievous bodily harm and the sentence
imposed for the offence of kidnapping following the prescribed petition procedure.
The result of the petition order (and the formulation thereof) thus binds us on
appeal.4
[5] Upon reading the record on appeal, I was not convinced that the conviction on
the charge of kidnapping was sound, and my colleague shared my concerns about
this conviction. We invited the appell ant to reconsider its position and consider
piloting a further petition concerning the kidnapping charge. The appellant elected
not to pursue this further, and the appeal proceeded in accordance with the petition
order.5
1 The appellant was given leave to appeal against his conviction of assault and his sentence on the
kidnapping charge.
2 It was conceded that the minimum sentencing legislation found no application in this case.
3 This was because the “complainant” subsequently passed away.
4 This court could not deal with the merits of the conviction on the kidnapping charge.
5 The appellant declined the opportunity to apply to the Supreme Court of Appeal concerning the
kidnapping conviction.
OVERVIEW
[6] It remains undisputed that the complainant, who was allegedly assaulted and
kidnapped by the appellant, subsequently sadly passed away. It is common cause
that the deceased was a known thief in the area where the appellant resided. It is
also conceded th at the deceased stole several items belonging to the appellant’s
family before the appellant allegedly kidnapped him.6
[7] After the theft, the appellant went to the deceased’s home and discovered the
stolen items at the residence of the deceased’s mother . On the following day, the
appellant again went to the same residence to arrest the deceased and take him to
the police station. When the deceased saw the appellant, the deceased attempted to
run away.7
[7] The appellant apprehended the deceased and te stified that he did so
intending to take the deceased to the local police station. It is common cause that a
scuffle (involving a fistfight) took place between the appellant and the deceased.
Further, the deceased suffered some minor injuries when the ap pellant restrained
him. The appellant first went to his parental home (to collect his identification
documents), where he left the deceased in the rear of his vehicle. After that, the
appellant left with the deceased to transport him to the police station.8
[8] The appellant decided not to take the deceased to the police station because
of the fistfight between them and left the deceased in a parking area of a nearby
shopping complex. The appellant returned home shortly after that and declared that
he had been unable to take the deceased to the police station as the deceased had
escaped. The evidence further suggests that sometime after that, the deceased was
involved in a fight (or was attacked by unknown assailants) with several unidentified
persons who allegedly assaulted him. After that, h e was taken to a nearby hospital
for treatment. It seems common cause that the deceased succumbed to his injuries
6 A plastic table, six chairs used by the appellant’s children and a mountain bike.
7 The deceased was restrained by the appellant to take him to the local police station.
8 The appellant was intent on preferring criminal charges against the deceased.
while he was on his way to the hospital to receive treatment for the injuries he had
sustained when these unidentified assailants assaulted him.9
THE RESPONDENT’S CASE
MS SAUL
[9] She testified that on the morning in question , the deceased entered her
home and proceeded to prepare a bath for himself. When the appellant arrived at
her house, the deceased left her home and proceeded to jump over the wall of an
adjacent property . The appellant pursued the deceased, restrained him, and
placed the deceased in the rear of his vehicle. The appellant closed the door of
the canopy at the rear of his pick -up truck with the deceased inside and drove off.
She conceded that the deceased was a known thief in the area and that many
people wanted to cause harm to him.10
MR HENDERSON
[10] The deceased was his brother. He was at home when he heard a knock at
the door. When the appellant arrived at his mother’s house, the appellant
informed him that he was looking for the deceased, as the deceased had stolen
some of his belongings. The appellant recovered his items from his mother’s
house and, after that, left the premises. When the deceased returned home later
that day, he informed the deceased that the appellant was looking for the
deceased because of the items the deceased had s tolen from the appellant. He
also confirmed how the appellant apprehended the deceased and that a scuffle
and fistfight occurred between the appellant and the deceased.11
MR VAN DEVENTER
9 This evidence was not the subject of any real dispute by the respondent.
10 She essentially confirmed the evidence of the appellant.
11 He confirmed a fistfight and a scuffle between the deceased and the appellant.
[11] He is employed in the area. He received information that several people
were fighting outside his workplace. He proceeded to the premises, where he
found the deceased and asked the deceased what had happened. The deceased
informed him that he had been picked up in the morning by about ten people. The
deceased said he had been ‘hijacked’ by these people and that these unknown
persons had viciously assaulted him.12
[12] This witness took the deceased to the police station and took photographs
of the in juries that had been sustained by the deceased. According to him, it
appeared that the deceased had been assaulted with either a stick or a sjambok,
as he could see lines across the deceased’s back, stomach, legs and arms.13
MS HENDERSON
[13] The deceased was her brother. She received a message from her mother
that her brother was at the police station. She proceeded to the police station and
found the deceased outside the police station, covered with a blanket. She saw
the deceased’s body was covered with lines and bruises. She confirmed that the
deceased had passed away while they were taking him to the hospital.14
MRS HENDERSON
[14] She is the deceased’s mother. She corroborated the testimony by her
daughter and confirmed that t he deceased informed her that he had been
assaulted with sticks and sjamboks . She testified that the deceased’s body was
covered in blue and black welts (from head to toe } and that the deceased passed
away while they were taking him to the hospital.15
MR DAVIDS
12 He confirmed that the deceased had been the subject of a vicious assault.
13 The injuries suffered by the deceased were serious injuries.
14 She confirmed the nature and extent of the injuries suffered by the deceased.
15 The deceased’s body was covered in welt-like injuries.
[15] He confirmed that on the day in question , when he arrived at the
appellant’s residence, the deceased was sitting in the back of the appellant’s pick-
up truck. The appellant informed him that he w ould take the person in the back of
the vehicle to the police station. The appellant then left, and not long after that, the
appellant returned home. He asked the appellant what had happe ned to the
person in the back of the pick-up truck, and the a ppellant informed him that the
person had jumped out of the pick-up truck, and he had not taken this person to
the police station . He conceded that the appellant returned to his mother’s home
not long after he had left with the deceased on the same morning.16
THE CASE FOR THE APPELLANT
[16] The appellant testified that his home had been broken into by the deceased
and that the deceased had stolen certain items belonging to the appellant and his
family. The appellant testified that he drove to the deceased’s house alone . When
he arrived at the deceased’s home, the deceased saw him and ran to the corner
of the property to hide away. The appellant proceeded towards the deceased, and
the deceased attacked him, and they got involved in a physical scuffle.17
[17] He testified that he restrained the deceased to take him to the police
station. On his way to the police station, he stopped at his parents’ home to collect
his identification documents to exhibit to the police. After that, he decided to leave
the deceased at the parking area of a local shopping complex and not take the
deceased to the police station. The reason for this was that he and the deceased
had been involved in a fistfight, and he did not want this to be an issue when he
filed a formal charge against the deceased. He returned home approximately
fifteen to twenty minutes after leaving the deceased at the shopping complex.18
CONSIDERATION
CONVICTION
16 The appellant returned within about 15 to twenty minutes later.
17 They were involved in a fistfight and the deceased suffered some minor injuries.
18 He was concerned that he may be charged with assaulting the deceased.
[18] It seems to me that the judicial officer in the lower court was materially
misdirected by not taking into account the entirety of the evidence presented
during the trial and neglec ted the fundamental principle in criminal proceedings
that the respondent had to prove its case beyond a reasonable doubt. The trial
court failed to recognise that the appellant was not obligated to prove the truth of
his explanation and that the burden of proof of guilt beyond a reasonable doubt
rests on the respondent . Put another way, i f there was a reasonable possibility
that the appellant’s evidence ‘might be reasonably possibly true’, he should be
acquitted. The evidence submitted by the appellant must redound to the
appellant’s favour. More importantly, the trial court was obliged to consider all the
evidence in its totality.19
[19] The issue in the appeal before us was whether the respondent had met its
burden of proof of the appellant's guilt beyond reasonable doubt on the evidence
presented before the trial court. No medical evidence was submitted in connection
with the alleged injuries inflicted on the deceased by the appellant. In this
connection, no supporting evidence from other sources was available to validate
any aspect of the alleged assault on the deceased by the appellant.20
[20] First, the respondent did not provide any evidence to support the claim that
the appellant was with the deceased when several other unknown men assaulted
him. Second, the appellant testified that he was involved in a fistfight with the
deceased because he was attacked by the deceased. No further evidence was
advanced in this connection. This presents a significant difficulty in the case,
impacting on the interpretation of the medical evidence and its relevance to the
findings by the trial magistrate.21
[21] I am unable to find anything in the evidence presented in this case that
could be viewed as independent support f or the conviction of the appellant of
assault with intent to inflict grievous bodily harm (or any of the competent verdicts
19 S v van der Meyden 1999 (1) SACR 447 (W).
20 The injuries in the postmortem report and the photographs were not linked to injuries inflicted by the
appellant.
21 The “medical evidence” could not be considered as evidence against the appellant.
to it). When the evidence is weighed in its totality , it raises doubt about the
appellant’s guilt. Where ther e is a reasonable possibility that the appellant’s
version is authentic, he is entitled to the benefit of the doubt.22
[22] Notably, the judicial officer in the trial court did not sufficiently engage with
the uncontested evidence that the appellant return ed fifteen to twenty minutes
after leaving his parental home, after which he spent the entire day at his parental
home. I say this because a factual finding was made that it was common cause
that the appellant was the last person to be seen with the decea sed. In this
connection, it was not common cause that the appellant was the last person seen
with the deceased , as the uncontested evidence demonstrated the opposite. The
deceased informed one of the witnesses for the prosecution that approximately
ten assailants had hijacked him and assaulted him, and that is why he had been
badly injured.23
SENTENCE
[23] The appellant testified in mitigation of his sentence. It is common cause
that two professional sentencing reports were commissioned after the appellant
was convicted. Both reports recommended that the appellant be sentenced to
correctional supervision through house arrest.24
[24] The appellant was married with two minor children and self-employed when
he was sentenced. The appellant enjoyed a stable background and had no
brushes with the law before this incident. The appellant was and is a first offender.
One of the professional reports highlights the minimal risk of the appellant re -
offending. More importantly, after the appellant was convicted and sentenced, he
spent two months in prison before being released on bail pending the outcome of
the petition and, according to it, this appeal.25
22 S v V 2000 (1) SACR 453 (SCA).
23 The deceased was in the company of Miranda, Mr van Deventer and allegedly many other people
before he passed away.
24 In terms of section 276(1) (h) of the Criminal Procedure Act 51 of 1977.
25 The appellant was processed as a convicted prisoner and served two months in prison and a
sentenced offender.
[25] The appellant testified in mitigation of his sentence that (a) he was twenty-
eight years old at the time of the incident, (b) he had been married for ten years
and had two minor children, (c) a financial institution had gainfully employed him ,
where he had earned thirty-five thousand rands per month , (d) because of the
charges against him he had to find alternative employment and could no longer
work in the financial sector , (e) at the time of his conviction he had obtained
alternative employment and was now only ear ning twelve thousand rands per
month, (f) he supports his mother who is a pensioner, and (g) he has resorted to
also working at night to supplement his income.26
[26] Further, he has been involved in community -based projects, preparing and
distributing food for the less privileged . He has received commendations from his
local community for this charitable work. Finally, he testified that he regretted the
incident with the deceased and exhibited deep remorse for the fact that he did not
manage to take the deceased to the police station as he initially had intended to
do. He conceded that he made a mistake.27
[27] The facts in this case were peculiar and unique. The appellant is an asset
to the community, was a first offender and gainfully employed . It is so that
kidnapping is a severe offence and regretfully has become a prevalent offence.
The facts of this case must , however, be distinguished. The trial court needed to
consider the unique facts of this case sufficiently. The sentence of direct
imprisonment imposed upon the appellant had a devastating effect on the
appellant, his family, dependents and his children.28
[28] The sentence imposed in these circumstances was disproportionate and ,
unfortunately, amounted to a misdirection by the trial court. I say this also because
the minimum sentencing regime found no application. The respondent conceded
this much. The trial court also need ed to distinguish between two typ es of
offences when evaluating and considering the possible sentencing options. The
first is where an offender should be removed from society through imprisonment,
26 He prepares food and sells it a night to supplement his income.
27 The appellant showed genuine remorse for his actions.
28 The appellant was sentenced without considering the peculiar and unique facts of this case.
and the second is that type of offence where the offender should not be removed
from society.29
[29 A sentence may be suspended only conditionally and, therefore, is by its
very nature a composite measure. The sentence imposed must always be
appropriate, and it makes no difference that it, or any part of it, remains
suspended. It must also be b orne in mind that the condition imposed in any
suspended sentence cannot be part of the sentence itself. In formulating the
appropriate sentence, I have considered that the appellant has already served two
months of his sentence.30
CONCLUSION
[30] For all these reasons, the sentence of direct imprisonment imposed on the
appellant amounted to a misdirection by the trial court. In addition, for the reasons
enumerated in this judgment, the appeal against the conviction in respect of
assault with the intention to do grievous bodily harm (and the competent verdicts
to it) must also succeed.31
ORDER
[31] The following order is made:
1. The appeal against the appellant’s conviction (and therefore sentence) on the
charge of assault with intent to cause grievous bodily harm (count 2) is upheld
and is, with this, set aside. The appellant is acquitted.
2. That the appeal against the appellant’s sentence on the charge of kidnapping
(count 1) is upheld and substituted for the following sentence:
29 S v R 1993 (1) SACR 209 (A).
30 The sentence and the suspended portion have specifically been formulated to consider “time
served” by the appellant.
31 This is so because the version by the appellant is reasonably possibly true.
“…On the charge of kidnapping , the appellant is sentenced to twelve
months imprisonment . T en months of th is twelve-month sentence is
entirely suspended for five years on the condition that the appellant is not
found guilty of kidnapping or a competent verdict during the suspension
period. This substituted sentence is antedated in terms of section 282 of
the Criminal Procedure Act, 51 of 1977 to the 4th of October 2023.
3. Any bail the appellant paid must be repaid to him.
SUMMARY
(The appellant has served two months of his sentence in connection with the
kidnapping conviction (count 1) , and thus the remaining portion of this sentence is
entirely suspended)
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WILLE, J
I agree:
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KUSEVITSKY, J