IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, MAKHANDA
NOT REPORTABLE
Case No: CA&R 83/2024
In the matter between:
GREGORY DAVID EVANS Appellant
and
THE STATE Respondent
APPEAL JUDGMENT
ELLIS AJ:
INTRODUCTION
[1] The appellant was convicted on 13 February 2023 in the District Court,
Makhanda, on three counts as follows:
1.1 possession of two Mandrax tablets (“count 1”);
1.2 assault (“count 2”); and
1.3 negligent driving (“count 3”).
[2] He was cautioned and discharged in respect of counts 1 and 2 and fined
R2 000.00 or six months imprisonment in respect of count 3. An amount of
R1 500.00 or five months imprisonment was suspended for five years.
[3] Leave to appeal against the convictions on count 1 and count 2 was granted
by this court after the court a quo refused leave to appeal against all three
convictions. At the hearing of the matter, Mr McConnachie argued that this court can
also decide on appeal in respect of count 3, mero motu, in the exercise of this court’s
inherent discretion.
BACKGROUND FACTS
[4] The three counts originated from a sequence of events that happened on the
late afternoon or evening of 5 January 2021. The appellant pulled up alongside the
police vehicle of one Constab le Matroos (“Matroos” or “the complainant”) at the
intersection of New and Hill Streets, Makhanda, complaining of an incident of racism
unrelated to the complainant. The appellant then pursued Matroos with his vehicle,
and events culminated in front of the SAPS station yard in Beaufort Street with the
search and arrest of the appellant. The appellant was charged with the possession of
two Mandrax tablets, assault by threat and negligent driving. The appellant pleaded
not guilty and gave a plea explanation t o the extent that should the evidence
establish any of the conduct relating to counts 2 and 3, he was not in his proper
senses due to psychological and other factors (not drugs), and that he was not able
to appreciate the wrongfulness of his actions, alter natively, that such ability was
diminished. In respect of count 1, the accused tendered a bare denial.
[5] The trial court had to decide whether the State’s evidence proved that the
appellant drove negligently; whether the appellant assaulted Matroos by threat and
whether he was found in possession of two Mandrax tablets.
THE STATE’S EVIDENCE AT TRIAL
[6] The St ate relied on the evidence of two witnesses at the trial. Matroos, as
complainant, testified as did Constable Johnson (“Johnson”). The State also
produced documentary evidence, being a psychiatric report obtained from Fort
England Hospital, and a photo alb um forming part of the exhibits which are still
photographs extracted from a video of the events in front of the station yard. The
psychiatric report and photo albums were admitted into evidence without objection.
[7] The relevant evidence is summarised as follows:
7.1 On 5 January 2021 Matroos was driving his police vehicle. He was
approached by the appellant, in his vehicle, an Isuzu bakkie, at a stop
sign at the intersection of New and Hill Streets. The appellant was
swearing at Matroos, showing signs, and po inting at him, clearly upset.
Matroos drove off and the Appellant followed in hot pursuit. The two
vehicles proceeded through the streets, in a built -up area and at times
exceeding the speed limit. Matroos was heading back to the station
and disobeying a stop street in the process, all to get away from the
appellant. Matroos drove into the station yard (the police station
parking lot for police vehicles) and the appellant was unable to follow.
The photographs extrapolated from the video showed that the
appellant made more than one U -turn in front of the police station and
then parked his vehicle in front of the station. The appellant alighted
from his vehicle and approached in the direction of the front doors of
the station. The appellant’s demeanour was angry and upset. On his
way in, three persons met the appellant namely Matroos, Johnson and
a Constable Manyonta. They apprehended and restrained the
appellant, including the use of pepper spray. The appellant was taken
inside the building where he w as searched and Matroos found two
Mandrax tablets in the appellant’s left shorts pocket. The appellant
was processed and detained in a cell, swearing at Matroos throughout
was processed and detained in a cell, swearing at Matroos throughout
the process. At this stage Matroos suspected drug use and
transported the appellan t to the hospital, but no drug test could be
performed. They returned to the station.
7.2 Johnson testified that on 5 January 2021 he was on duty with
Constable Manyonta and that they were patrolling. The two of them
had just returned to the station and were still in the station yard when
he observed Matroos pulling in. Matroos informed him that he was
being pursued by a white male in an Isuzu bakkie. The occupant of the
Isuzu (who is the appellant here) parked in front of the police station
and approached the front doors, while they were also approaching the
appellant. Matroos and Johnson apprehended the appellant, took him
to the ground and restrained him. The appellant was then taken inside.
Matroos searched the appellant and found two Mandrax tablets. The
appellant continued his aggressive attitude towards the officers
throughout and it was decided to transport the appellant to the hospital
to have his blood drawn. No drug test was done, and they returned to
the station.
7.3 A psychiatric report by Fo rt England Hospital Forensic Service
concluded with a diagnosis of substance use disorder and further
concluded that at the time of the offence the appellant was able to
appreciate the wrongfulness of the act in question and able to act in
accordance with such appreciation of wrongfulness.
EVIDENCE BY THE APPELLANT
[8] The appellant called Dr Berenisco to testify in connection with the injuries
sustained by the appellant in the so -called take down of the appellant in front of the
station. In my view, nothing turns on this evidence.
[9] The appellant testified in his own defence.
9.1 On 5 January 2021 he purchased items at Spar where he was
confronted with racial remarks made by an employee of Spar. He
testified that he observed Matroos in the Spar but could not say if
Matroos overheard any of the remarks. The appellant left the shop but
had to turn back for certain items, at which time he saw Matroos
driving. Still aggrieved by what he perceived to be a lack of assistance
from the police in the alleged racia l incident, he then made a U -turn to
follow Matroos and pulled up alongside him and attempted a
conversation. The appellant called Matroos a criminal. Matroos did not
engage and drove off. The appellant followed: “And then he sped off at
a high speed and I followed him down”.
9.2 When asked about his state of mind he said “ so I was high, so I had
just come from the dentist, so I was really high …. I was highly upset .”
Later, repeating “I was highly upset with the police officer .” He testified
that he was driving at about 70km/h and Matroos at 80km/h or 90km/h
but “I would not say chasing, but I was driving in very close proximity
behind the police car”.
9.3 He arrived at the station in Beaufort Street and parked his vehicle. He
described himself as calm whe n he approached the police station. He
testified that officers Manyonta, Johnson and Matroos were the
perpetrators of an assault against him, including the use of pepper
spray, and that they were the aggressors in the narrative. After he was
pepper-sprayed he was disorientated and could not see much. He
testified that he felt himself being pulled into the police station but that
he was not offering resistance nor being aggressive. He recalled that
he was searched, however, he testified that it was only to retrieve his
car keys from his pocket. The appellant’s version is that he was
transported to hospital, but that no drug test was performed, and they
returned to the station. He denies that drugs were found in his
possession and testified that he only h eard about the drugs after their
return from the hospital.
GROUNDS OF APPEAL
[10] The appellant’s grounds of appeal are formulated as follows. In respect of
count 1 it is alleged that the Magistrate erred in finding corroboration for the evidence
that the appellant was found in possession of two Mandrax tablets in the fact that the
police took him to Settler’s Hospital for drug testing, despite it being common cause
that no testing was done. Further, the Magistrate ought to have accepted the
appellant’s version that he was only found in possession of the drugs only after their
return to the police station.
[11] In respect of count 2, the appellant alleges that the Magistrate ought to have
rejected the evidence of Matroos and Johnson regarding what occurred aft er the
appellant parked his vehicle, as this was contradicted by the video material and still -
photographs, as these images had shown Manyonta to be the aggressor and it also
further showed the assault upon the appellant resulting in his injuries as testifi ed
about by Dr Berenisco.
[12] The Magistrate also alleged to have erred in not drawing an adverse inference
against the State for their failure to obtain a witness statement from Manyonta.
APPEALS AGAINST CONVICTIONS: APPLICABLE PRINCIPLES
[13] The question on appeal regarding the appellant’s conviction is ultimately
whether the evidence in the trial is sufficient to prove the guilt of the appellant
beyond a reasonable doubt; this being the State’s burden of proof. In this regard,
Plasket J (as he then was) in S v T1 held that:
“The State is required, when it tries a person for
allegedly committing an offence, to prove the guilt of
the accused beyond a reasonable doubt. The high
standard of proof – universally required in civilised
systems of criminal justice – is a core component of
the fundamental right that every person enjoys under
the constitution, and under the common law prior to
1994 to a fair trial. It is not part of a charter for
criminals, and neither is it a mere technic ality. When
1 2005 (2) SACR 318 (E) at para 37.
a court finds that the guilt of an accused has not
been proved beyond reasonable doubt, that accused
is entitled to an acquittal, even if there may be
suspicions that he/she was, indeed, the perpetrator
of the crime in question. That is an in evitable
consequence of living in a society in which the
freedom and the dignity of the individual are properly
protected and are respected. The inverse –
convictions based on suspicion or speculation – is
the hallmark of tyrannical systems of law. South
Africans have a bitter experience of such a system
and where it leads to.”
[14] In S v Zuma2 the aforesaid principles were restated as follows:
“The presumption of innocence is infringed whenever
the accused is liable to be convicted, despite the
existence of a reasonable doubt.”
[15] In summary, S v Van der Meyden3 emphasizes that while the onus of proof in
a criminal case is discharged by the State if the evidence establishes the guilt of the
accused beyond reasonable doubt, the corollary is that an accused is entitled to be
acquitted if it is reasonably possible that the accused might be innocent.
[16] The question, otherwise cast, is therefore whether, at the end of the trial, the
evidence presented at the trial is, as a whole, sufficient to ground the conviction of
the appellant. As adopted and affirmed by the Supreme Court of Appeal in S v Van
Aswegen4 the evidence in the trial as a whole must be considered. The overall
picture is therefore of central importance. It is also critical to remember that an
appeal court is not a trier of fact at first instance; that is the function of the trial court.
2 [1995] ZACC 1; 1995 (1) SACR 568 (CC) at paras 25 and 33.
3 1999 (1) SACR 447 (W) at 448 F – G.
4 2001 (2) SACR 97 (SCA).
[17] The fundamental principle on the evaluation of evidence on appeal is that an
appeal court will not be inclined to disturb the findings by the trial court on the
evaluation of evidence. This is borne by the fact that it is difficult to surpass the
advantage of seeing and hearing witnesses. The appeal court will only interfere if
there was a clear misdirection, and the findings of the trial court are declared
erroneous5. This was reiterated by the Supreme Court of App eal in AM and Another
v MEC Health, Western Cape6, where the court stated the following:
‘Such findings are only overturned if there is a clear
misdirection or the trial court’s findings are clearly
erroneous. That has constantly been the approach of
this court and the Constitutional Court as reflected
recently in the following passage from ST v CT:
“In Makate v Vodacom (Pty) Ltd the Constitutional
Court, in reaffirming the trite principle outlined in
Dhlumayo, quoted the following dictum of Lord
Wright in Powell & Wife v Streatham Nursing Home:
Not to have seen the witnesses puts appellate
judges in a permanent position of disadvantage as
against the trial judges, and unless it can be shown
that he has failed to use or he has palpably misused
his advantage, the higher court ought not to take the
responsibility of reversing conclusions so arrived at,
merely on the result of their own comparisons and
criticisms of the witnesses and of their own view of
the probabilities of the case”.
WAS THE APPELLANT CORRECTLY CONVICTED?
5 R v Dhlumayo 1948 (2) SA 677 (A)
6 (1258/2018) [2020] ZASCA 89
[18] In my view this question must be answered in the affirmative. The salient
evidence was evaluated by the Magistrate and the evidence of Matroos was
materially corroborated by Johnson. Moreover, considering that the appellant was
on his own version in a he ightened emotional state the appellant was an unreliable
witness. The discrepancies between the evidence of Matroos and Johnson as far as
the sequence of events and arrest of the appellant are concerned were not material.
The Magistrate correctly found th at Matroos found the tablets in the appellant’s
possession when the appellant was searched. The suggestion that Matroos had
handy two Mandrax tablets in the very unlikely event of Matroos being pursued by an
unknown person with the sole purpose of later pl anting the drugs on this unknown
person stands to be rejected.
[19] As for count 2, the threat of assault meets the threshold of a conviction if it
creates a reasonable fear of imminent harm. The appellant’s own testimony in this
regard is telling and seen ho listically with his behaviour in driving and pursuing the
complainant, and his own evidence of his heightened emotional state, there is no
material misdirection of fact by the Magistrate.
[20] In respect of count 3, there is no authority to support the submi ssion that this
Court can interfere in a conviction if leave to appeal against such a conviction was
not granted. It would set a dangerous precedent to do so.
CONCLUSION
[21] The evidence in the trial was found to be sufficient to prove the guilt of the
appellant beyond a reasonable doubt. The over -all picture of the evidence does not
support the reasonable possibility that the accused might be innocent. The appeal
court will not be inclined to disturb the findings of the trial court on the evaluation of
evidence unless the appellant shows that there is a clear misdirection of fact by the
Magistrate. There was no such misdirection and as such this court will not interfere
Magistrate. There was no such misdirection and as such this court will not interfere
with the findings of the Magistrate in the court a quo.
Accordingly, I make the following Order:
ORDER
1. The appeal is dismissed.
__________________________
L ELLIS
ACTING JUDGE OF THE HIGH COURT
GOVINDJEE J: I agree.
__________________________
A GOVINDJEE
JUDGE OF THE HIGH COURT
Appearances:
For the appellant: Advocate McConnachie
For the respondent: Advocate S Hendricks
Date heard: 12 March 2025
Date delivered: 29 July 2025