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[2015] ZAWCHC 41
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Nontyi v S (A424/13) [2015] ZAWCHC 41 (20 April 2015)
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THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: A424/13
DATE: 20 APRIL 2015
DPP Ref: 9/2/5/1 –
270/13
Kuilsriver Case No: BDSH
2/78/11
In the matter between:
LWAZI NONTYI
…...............................................................................
PETITIONER
/APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
Coram: GAMBLE & ROGERS JJ
Heard: 13 MARCH 2015
Delivered: 20 APRIL 2015
JUDGMENT
ROGERS J (GAMBLE J concurring):
[1] In this matter we directed in terms
of s 309C(6)(b) that the petitioner’s application for leave to
appeal against conviction
be argued before us. We did so because,
although there appeared to be sufficient prospects of success to
grant the petition, an
appeal against sentence (leave to pursue which
had been granted by the magistrate) had already been heard and
decided by two other
judges. We directed that the heads of argument
address inter alia the procedural implications, for the petition, of
the finalised
appeal against sentence. We also directed that the
legal representatives should be ready to address not only the merits
of the
petition but the merits of the appeal itself if we were
inclined to grant the petition. We gave these directions by way of an
order
dated 25 March 2014. For reasons which are not clear to us, and
which are to be regretted, the matter was only set down for hearing
before us on 13 March 2015.
[2] The petitioner was charged with
assault with the intent to cause grievous bodily harm, the alleged
victim being the petitioner’s
eight-year-old nephew, [A…..].
The assault was alleged to have occurred on 7 February 2010. The
petitioner was then 33 years
old. Because of the victim’s age,
the petitioner faced a minimum sentence of ten years’
imprisonment in terms of
s 51(2)(b)(i)
of the
Criminal Law Amendment
Act 105 of 1997
read with
Part III
of Schedule 2. He was released on
bail, which remained the position until he was sentenced.
[3] The trial began on 3 August 2012.
The petitioner, who was legally represented, pleaded not guilty. The
State called the alleged
victim (who testified through an
intermediary), his mother (N………..) and his
grand-aunt (N…….).
(I refer to them by their first
names, because they share the same surname – I mean no
disrespect thereby.) The J88 form,
recording the results of a medical
examination of the victim conducted on 7 February 2010, was handed in
by agreement. The doctor
was not called to testify. The petitioner
testified in his own defence.
[4] The magistrate delivered judgment
on 18 December 2012. He convicted the petitioner as charged. The
State proved two prior convictions,
one for theft in 1997 (the
sentence being a fine of R120 or 60 days’ imprisonment) and one
for malicious damage to property
in 2004 (the sentence being a fine
of R300 or 60 days’ imprisonment, suspended for three years).
The matter was then adjourned
for purposes of obtaining a probation
officer’s report. This report was handed in when proceedings
resumed on 8 February
2013. The probation officer recommended a
sentence of correctional supervision in terms of
s 276(1)(h)
of the
Criminal Procedure Act 51 of 1977
. The parties made submissions on
sentence. On 5 March 2013 the magistrate handed down sentence. He
found that there were no substantial
and compelling circumstances to
depart from the minimum sentence of ten years’ imprisonment.
[5] During July 2013 the petitioner,
still legally represented, applied for leave to appeal against
conviction and sentence and
for condonation for the late filing of
the application. On 6 September 2013 the magistrate refused leave to
appeal against conviction
but granted leave to appeal against
sentence.
[6] On 25 September 2013 the petitioner
prepared and signed a detailed handwritten petition for leave to
appeal against conviction.
[7] The appeal against sentence came
swiftly before this court. On 29 November 2013 Salie-Samuels AJ (as
she then was), with Yekiso
J concurring, upheld the appeal and
substituted a sentence of ten years’ imprisonment of which
three years were suspended
for five years on appropriate conditions.
At that stage the appellant’s petition for leave to appeal
against conviction was
pending. It is clear that the appeal must have
been argued and judgment given in ignorance of the petition. The
judgment made no
reference to the petition.
[8] During March 2014 the petition came
before Gamble J and me. We gave the directions previously mentioned.
[9] At the hearing before us both sides
submitted that the judgment on sentence had to stand unless reversed
on further appeal to
the Supreme Court of Appeal. I do not agree. In
certain circumstances a court is entitled to correct or rescind its
own judgments.
Although rescission is encountered mainly in civil
proceedings and at first instance, there is no reason in principle
why it should
not apply to orders on appeal, including criminal
appeals. In terms of Uniform
Rule 42(1)(c)
a court may rescind an
order granted as a result of a mistake common to the parties.
Rule 42
is not in terms confined to civil proceedings or to proceedings at
first instance, even though that is where it usually finds operation.
In my view, the order of this court in the appeal against sentence
was granted as the result of a mistake common to the parties,
ie in
ignorance of the pending petition. Alternatively, and if the High
Court does not already at common law have the power to
rescind a
judgment in these circumstances, the High
Court nevertheless has the inherent
power in terms of s 173 of the Constitution to protect and regulate
its own process and to develop
the common law, taking into account
the interests of justice. Having regard to the fair-trial rights
conferred by s 35(3) of the
Constitution, the interests of justice
would favour the rescission of an order on appeal granted in the
circumstances of the present
case if this were necessary to enable a
convicted person to have his petition considered in accordance with
the law.
[10] Nevertheless, if we were to
dismiss the petition or the resultant appeal against conviction, it
would seem to me to be undesirable
for us to give either side a
‘second bite at the cherry’ insofar as sentence is
concerned. There is a considered judgment
of this court on the
sentence appeal. In such circumstances we could properly decline to
rescind the order on the sentence appeal.
If, however, we were to
conclude that the petition and resultant appeal against conviction
should succeed, the order on the sentence
appeal would not stand in
our way and could in so far as needs be rescinded by us by virtue of
the mistake common to the parties
or in the exercise of our inherent
jurisdiction.
[11] It may be that rescission of the
order made on the sentence appeal is not necessary to clear the way
for a subsequent appeal
against conviction. It may be said that where
an appellate court has before it only an appeal against sentence, its
order is by
its nature without prejudice to any right which the
convicted person may then have or may thereafter acquire to appeal
against
the conviction. Ms Thaiteng, who appeared for the State,
referred us to the judgment of a full bench of this court in King v
The
State A79/2011 delivered on 22 August 2014. In that case the
appellant had sought leave from the magistrate to appeal against
conviction
and sentence but was only granted leave in respect of
sentence. On 13 May 2011 his appeal against sentence was dismissed.
Thereafter
he delivered a petition for leave to appeal against his
conviction together with a condonation application. Two judges of
this
division refused the petition but on further application to the
Supreme Court of Appeal he was granted leave to appeal against his
conviction to a full bench. Although the Supreme Court of Appeal did
not give reasons, it seems likely that the judges of appeal
who
granted the petition were aware of the unsuccessful appeal against
sentence and did not see it as standing in the way of an
appeal
against conviction. That case differs, of course, from the present
one, in that the dismissal of the appeal against sentence
was not
vitiated by any error – the appellant only petitioned for leave
to appeal against the conviction after the appeal
against sentence
was finalised. Be that as it may, and for the reasons I have given,
the power of rescission could be exercised
in the present case in the
interests of justice in so far as needs be.
[12] I turn to a consideration of the
proposed appeal against conviction. In view of the conclusion we have
reached, I intend to
assess the merits as on appeal rather than with
reference to the lower test of reasonable prospects of success
applicable to petitions.
[13] On the day in question the
petitioner went to N............’s house to drink. N………,
N………
and several other persons were there. It is
common cause that an argument, which turned violent, broke out
between the petitioner
and N…………. because
she wanted him to leave. N………. and N………..
testified that during the course of the fight the petitioner threw a
bucket of water containing glasses at N............ She said
that he
also threw a bottle at her and that she threw an unbroken bottle back
at him. He testified, by contrast, that all he threw
at her was a
bottle and that she retaliated by breaking a bottle against the wall
and throwing it at him.
[14] While this was going on [A…….]
was standing near the front gate, which was a couple of metres from
the open front
door.
[15] On the State’s version. the
petitioner was physically ejected from the house. Shortly thereafter
[A…….]
was found to be bleeding from a wound on his
right side just above the hipbone (this fleshy area of the abdomen is
called the right
iliac fossa, being the expression used in the J88).
[16] The State’s case was that
the petitioner left the house with a broken bottle in his hand and
stabbed [A……]
as he departed. The petitioner denied
having walked out with a broken bottle and denies having stabbed
[A……...] He
said the broken bottle which (on his
version) N………… had thrown at him missed
and went through the open
front door. He surmised that the broken
bottle had struck [A…….], causing the wound.
[17] The J88 described the wound as a
deep laceration through fat and muscle, about 6cm long. The child was
said to be thin. Curiously
the doctor identified the child as a girl.
The only evidence as to the treatment [A…….] received
was his own –
he said the wound was stitched and he was given
some medicine.
[18] If one could safely eliminate a
misdirected projectile as the cause of [A.........’s] wound,
the inference would be inescapable
that the petitioner stabbed
[A.......] Given the fight between the petitioner and N………
and the fact that he
was not wanted at the house, it is plausible
that he struck [A……..] out of spite as he departed. He
was the only
person in the vicinity of the child at the relevant
time.
[19] However, I do not think the J88 on
its own, in the absence of evidence from the doctor, enables one to
conclude beyond reasonable
doubt that a thrown broken bottle could
not have caused the wound. Both on the State’s version and the
defence’s version,
the wound was caused by a broken bottle. The
only question is whether the broken bottle was used as a stabbing
weapon or was a
misdirected projectile. If N………
in anger threw a broken bottle with some force and it went through
the open
front door and struck the child, I do not think I can safely
exclude the possibility that it caused the injury described by the
doctor. Although the laceration was described as ‘deep’,
the depth was not recorded in the J88. Since the child was
described
by the doctor as thin, there was presumably not much fat and muscle
at the site of the wound. Although [A……]
claimed to
have been wearing a thick jacket because it was cold, N…….
and N………. denied he had
been wearing a jacket –
N……….. described his top as a striped sweater,
N……… described
it as a white shirt with stripes
(Cape Town is generally warm in February). The J88 did not in terms
state that the wound was a
stab wound.
[20] One thus needs to assess whether
the evidence as a whole justifies the conclusion beyond reasonable
doubt that a thrown bottle
did not cause the injury. That depends
essentially on the reliability and credibility of the State
witnesses. The key witness was
[A………] himself,
because N……… and N…….. did not
claim to have seen the stabbing.
[A……..] Was ten years
old when he gave evidence and he was testifying about events which
had occurred two and a half
years previously. Because he was a single
witness and a child, there was a need to view his evidence with
caution, as the magistrate
acknowledged.
[21] As is well known, one of the
reasons for exercising caution in assessing the evidence of children
is that they are impressionable
and easily influenced. There was a
particular need for caution on these grounds in the present case. At
the time [A………..]
was wounded N………
had been involved in a fight with the petitioner. There was also
evidence of prior tension
between the petitioner and N……..’s
side of the family.
[22] Not only did N………….
and N………. potentially have reason to be hostile
to the
petitioner; they would have had a motive to shift blame to the
petitioner if the real cause of the injury was a broken bottle thrown
by N……….. In that regard it is not without
significance that in the statements which N……….
and N……… made to the police no mention was made
of the fact that N………. had thrown a bottle
at
the petitioner.
[23] [A......] testified that he saw
his uncle being pushed out of the door. The petitioner had a bottle
neck in his hand. He held
it behind his back. As he passed Ayabonga
the petitioner turned around and stabbed him with the bottle and also
kicked him on his
back. [A……] testified that the
petitioner then called to N………. and told her ‘to
come and
take her corpse’. As noted, and contrary to the
evidence of N…….. And N………, he
testified
that he was wearing a thick jacket. The J88 did not reflect
any injuries from kicking.
[24] N……. testified in
chief that after the petitioner had been ejected from the house, they
heard him saying, ‘Thanks
God, N…….., come and
pick up your corpse’. N………. went outside
and asked [A………]
what happened. He replied that
as the petitioner had walked past him the petitioner had ‘pushed’
him. She then saw
the blood. In cross-examination the way she
expressed the child’s answer to her question is that as the
petitioner walked
passed ‘toe stamp hy teen my’ and ‘hy
het iets gevoel hier in sy sy’. There was an interpreter on
duty
during the trial but it is unclear to what extent the evidence
in the record reflects the words of the witnesses or a translation.
Nevertheless, N.........”s version of [A......]’s
immediate response does not reflect an unequivocal assertion by
[A.......] that his uncle had stabbed him. On her evidence,
[A.........] did not tell her that the petitioner had been carrying
a
broken bottle or that he had used it to stab him.
[25] N………..
testified that after the petitioner had been ejected she heard him
say ‘Thanks N……..
come and pick up here is your
child’s corpse’. (Later she expressed his utterance thus:
‘Thanks God N……..
come fetch your child’s
corpse.’) N………. opened the door and N…….
went outside and
saw [A…..] holding his side. She lifted up
his top and saw a wound. She asked him what had happened and he
replied that
the petitioner had stabbed him and after stabbing him
kicked him from behind.
[26] N…….’s
evidence suggests that she was the one who spoke with [A.........]
and asked what had happened.
N……..’s evidence, by
contrast, suggests that she was the one who spoke with the boy. Their
evidence differs
as to what his reply was.
[27] All three State witnesses
testified that the petitioner made an utterance to the effect that
N……. should come
and fetch her son’s ‘corpse’.
N…… and N………, though not [A……..],
said that the words ‘Thanks God’ also formed part of the
utterance. It is possible that something has been lost in
translation, but the words attributed to the petitioner sound odd in
context. Nobody suggested that [A…..] was lying on
the ground
as if dead, making the reference to ‘corpse’ peculiar.
Furthermore, the expression ‘Thanks God’
sounds like an
expression of relief rather than one of anger or vindictiveness.
[28] The petitioner version was that he
only left the house after he and the others heard [A……..]
crying outside.
The petitioner says that they saw blood and a
‘straight cut, open wound’. He then said ‘Thank you
Lord because
your mother wanted to kill me with that empty and now
she threw it against her son’.
[29] In my view, the magistrate, while
acknowledging the need for caution, did not sufficiently apply it in
his assessment of the
evidence. Although he made favourable
credibility findings in respect of the State witnesses and remarked
negatively concerning
the petitioner, his criticisms of the
petitioner were based on supposed contradictions in the instructions
he gave his attorney.
The petitioner’s evidence can certainly
be subjected to some criticism but the evidence of the State
witnesses was not without
blemish, as I have tried to explain.
[30] However, the critical flaw in the
magistrate’s reasoning is the weight he attached to the J88 and
the nature of the wound.
He said that the doctor’s report
favoured the State’s version. He also found that the
probabilities, ‘according
to human knowledge and experience’,
did not favour the defence’s version, because a broken bottle
thrown from inside
the house could not have injured [A…….]
‘to such an extent’. The bottle ‘penetrated his
clothes’
and inflicted a deep laceration. In the magistrate’s
view, the injury ‘could not have been inflicted in another
manner
as the one described by the complainant’. There was in
fact no evidence that [A……’s] clothing was
penetrated
by a bottle though unless there was, at the critical
moment, a gap between [A……’s] shorts and his top
(for
example, because he was stretching or bending down or simply
fidgeting as children do), one would be entitled to assume such
penetration.
More importantly, however, I do not think that the J88
report and its description of the wound were such as to entitle the
magistrate
to find, in the absence of further medical evidence, that
the wound could not have been caused by a broken bottle thrown with
force
(even if it did penetrate [A…..’s] top). One might
think the stabbing thesis more probable than the projectile thesis
but the case did not fall to be decided merely on the probabilities.
My own ‘human knowledge and experience’ is not
such as to
give me confidence that [A.......’s] wound could not have been
caused by a thrown broken bottle.
[31] I thus consider that the
petitioner was and is entitled to the benefit of the doubt. This is
very far from saying that his
version was more probable than that of
the State witnesses or that the State witnesses were not telling the
truth. They may be
distressed by our finding. They need to
understand, however, that the petitioner was entitled to be acquitted
unless the case against
him was proved beyond all reasonable doubt.
[32] In the circumstances, the
following order is made:
(a) The petitioner’s petition for
leave to appeal against his conviction in the court are quo on 18
December 2012 is granted.
(b) The resultant appeal against the
said conviction succeeds and the said conviction is set aside.
(c) In consequence of the order in (b),
the sentence imposed on the petitioner in the court are quo on 5
March 2013, as varied by
this court’s order on appeal on 29
November 2013, is set aside.
GAMBLE J
ROGERS J
APPEARANCES
For Appellant Ms T Mahlasela
Cape Town Justice Centre
60 St Georges Mall
Cape Town
For Respondent Ms PA Thaiteng
Office of the Director of Public
Prosecutions
Western Cape