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S v Keka (CA & R32/96) [1997] ZAECHC 11 (21 February 1997)

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IN THE HIGH COURT


BISHO CASE NO: CA & R 32/96


In the matter between:


SIPHO KEKA APPELLANT


and


THE STATE RESPONDENT



BEFORE PICKARD JP


EBRAHIM AJ



JUDGMENT



EX TEMPORE

EBRAHIM.AJ In this matter the accused was charged in the Court a quo with assault with intent to commit grievous bodily harm. At the end of the evidence of the State and the Defence the accused was convicted of assault (common) and a sentence was imposed of a fine of R400,00 or imprisonment of 150 days.



The accused has appealed against both his conviction and sentence and the grounds of the appeal is founded, as Mr Notshe has indicated in his argument, on novel grounds. The reason for Mr Notshe indicating that these grounds are novel is that the magistrate's conviction is attacked on the ground that he erred in allowing a statement which the accused had made as a complainant in respect of the events that arose on the particular day and led to his being charged. He had lodged a complaint, as a complainant, because of the altercation that took place between him and the complainant in the instant case. It transpires that the accused was charged, despite him having lodged a complaint, and that led to the trial in which he was duly convicted and sentenced.



Now the novel ground that Mr Notshe has raised is that sections 25(2)(c) and 3(d) of the Constitution of the Republic of South Africa, and I am referring to Act 200 of 1993, should have been applied in respect of the accused in this matter. Mr Notshe has also attacked the finding of the magistrate on the facts in that he erred in not accepting that the accused's version was reasonably possibly true.



I return to the question of the grounds raised in respect of the Constitution and I do not intent to read the entire section save to read extracts from it which I consider to be relevant and these are section 25(1):-

"Every person who is detained, including every sentenced prisoner, shail

have the right..." and subsection (c) says >


"to consult with a legal practitioner of his or her choice, to be informed


of his right promptly, and, where substantial injustice would otherwise

result, to be provided with the services of a legal practitioner by the

State." Section 25(3)(d) reads:-

"Every accused person shall have the right to a fair trial which shall

include the right ..." and subsection (d)

"to introduce and challenge evidence, and not to be a compellable

witness against himself or herself."



The arguments raised by Mr Notshe are certainly novel and interesting but for the purpose of this appeal I do not consider it necessary to express any decision on whether his argument is correct or not, save to say that the sections clearly refer to every person who is detained including every sentenced prisoner, in the case of section 25(1), and in the case of section 25(3)(d) to every accused person having the right to a fair trial and that includes the right as I have said not to be a compellable witness against himself.



This appeal falls to be decided on the factual issues and in that respect it is his manifest from the record that the accused in fact admitted that he was poked in the posterior and he regarded this as silliness. But, in response to that he launched a kick at the individual, who at that stage he had not seen, and kicked this person in the testicles. Mr Notshe finally conceded that on this basis alone it is clear that the accused was correctly found guilty of assault (common) and that the disputed evidence relating to the statement which he had made and the admissibility of the cross-examination that led from that does not then become the issue that determines the appeal



In my view, it is clear from the admissions made by the accused during the trial- in response to questions that were put to him and also in his evidence in chief- that there is no doubt whatsoever that he had assaulted the complainant and that he was not acting in self-defence as he claimed. In my view the magistrate has not erred in any manner whatsoever in accepting the evidence of the state witnesses, and in rejecting the evidence of the accused as being false and not reasonably possibly true.




In my view the conviction is proper and cannot be upset on appeal.



Insofar as the question of sentence is concerned there is no basis whatsoever for attacking the sentence imposed by the magistrate considering the circumstances. It is a sentence which, as the magistrate himself has indicated, may have been somewhat on the lenient side given the circumstances under which this assault arose and the place where it arose namely, in the precincts of this court building itself. I cannot find that he has misdirected himself in any manner whatsoever or that the sentence evokes a sense of shock of such a nature that it needs to be upset on appeal.


In my view, therefore, the appeal cannot succeed and in fact fails and the conviction and sentence is confirmed.



PICKARD JP: I agree. The appeal is dismissed. Conviction and sentence

confirmed.


DATE: 21 FEBRUARY 1997