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IN THE NORTH WEST HIGH COURT

MAFIKENG

CA 2/2012

In the matter between:

SUTHERLAND JACOBUS ….....................................APPELLANT

and

THE STATE ….........................................................RESPONDENT

CRIMINAL APPEAL

GURA J & KGOELE J

DATE OF HEARING : 04 MAY 2012

DATE OF JUDGMENT : 22 JUNE 2012

FOR THE APPELLANT : ADV J.S. GAUM

FOR THE RESPONDENT : ADV D.G. JACOBS

JUDGMENT

KGOELE J:

[1] The appellant was convicted in the Magistrate Court sitting at Rustenburg of Assault with intent to do grievous bodily harm and Crimen Injuria. He was sentenced to three (3) years imprisonment.

[2] The trial court refused him leave to appeal but he successfully petitioned the Judge President, hence this appeal. His appeal is against both conviction and sentence.

[3] The appellant submitted that the court a quo erred in finding that the state has proved its case beyond a reasonable doubt. The appellant’s basis is that there are material contradictions in the evidence of the state and further that the version of the appellant is reasonably possibly true. As far a sentence is concerned the appellant submits that it is shockingly inappropriate.

[4] Four witnesses testified, two for respondent and two for the appellant. Their evidence can be summarised as follows:-

According to the complainant when the incident took place she, together with other former co-workers, had gone to Powerglaze, to collect their money. This is the money they worked for. They were to collect it from the owner of Powerglaze, whom they called Magogo. An argument ensued about the complainant’s money in the office where Magogo was sitting. The argument led to Magogo refusing to give the complainant her money. Instead, she put the money back inside the exercise book wherein the amount as to what is supposed to be paid was written. The two, Magogo and complainant, restled over the book by pulling this book towards each other’s direction. Magogo and appellant’s wife, who was with her in the office, phoned the police.

[5] The appellant and his colleague arrived. Upon his arrival he talked first to his wife and then came straight to the complainant and asked her why she assaulted his wife. When she retreated, appellant grabbed her by the neck, and started assaulting her. He caused her to fall to the ground, kicked her twice whilst on the ground, pinned her on the ground by sitting on top of her and using his knee. Whilst on top of her, he twisted and pulled her neck with his hands. Complainant managed to pull herself up and got seated with her buttocks on the ground.

[6] Appellant started pulling her towards the varendah. This varendah had some iron rods/poles. He placed her next to these iron rods, took her hand and hit it against one of them several times. She tried to block but fell onto the ground again. Appellant sat on top of her for the second time. He only climbed off when the other police officers arrived. Whilst he was so assaulting complainant, he referred to her as “Kaffir”. The complainant was ultimately arrested by these police.

[7] As a result of the assault she sustained some injuries. Her right arm was painful and she had some bruises around the knees and on the body. Two medical forms were filled. One immediately the following day and another one long after the assault. She does not know where the first medical form was. She was further hurt in her feelings by the appellant calling her “Kaffir” because she knows the word as being degrading and normally used against black persons only.

[8] The second witness Anna Diphoko, corroborated the complainant by saying that they had gone to Magogo’s place to collect money, that there was a struggle over the book when Magogo was supposed to pay the complainant that resulted in Magogo calling the police. Appellant arrived, went straight to the complainant and assaulted her. During the assault he was also referring to her as “Kaffir”.

[9] Appellant’s testimony was to the effect that he was called by his wife who reported to him that she was assaulted by the complainant outside the office. His wife reported to him that the complainant started by grabbing the money that was in the drawer, and whilst Magogo and his wife were wrestling over the money, complainant grabbed his wife with her hair, pulled her outside and assaulted her there. Upon his arrival he found that his wife’s clothes were torn, hair mixed up, and was not wearing shoes. His wife pointed at the complainant as the one who was assaulting her. He was with a colleague, Constable Vlok when going to Powerglaze. He approached complainant. He took out his police identity card, explained to the complainant that he was a police officer and that he was arresting her for theft and assault. Complainant started swearing at him when he was also trying to explain her rights. Complainant ran away. At some stage she stopped. She picked up an oil-filter from the ground and wanted to hit him (appellant) there-with, but he warned her that he would add another charge. She then dropped the oil-filter. He grabbed her with her arm, complainant managed to hit him at that time with an open hand. Appellant finally grabbed the other hand she was assaulting him with and finally arrested her. Two other police officers arrived. He explained to them that he wanted to arrest her for theft and assault, including assault on his person. She was taken to the police station and the said case was opened against her. He denied having assaulted complainant in any manner and causing her grievous bodily harm. He further denied referring to complainant as “Kaffir” or “Kaffirmeid”

[10] Appellant called Mr Oeloefse who testified to the effect that he attended the scene at Powergaze after getting the report. He was with Mr Moloi who was also a police officer. Upon arrival there he found appellant and complainant. Appellant made a report to him that when he was trying to arrest complainant, she resisted and also assaulted him. The appellant’s wife also made a report to him that complainant assaulted her. At that time the former’s clothes were torn off, she was not wearing shoes and her hair mixed up. She looked traumatised. Complainant was not assaulted in his presence. He did not even see injuries on the complainant.

[11] The crux of the appellant’s submissions is that the presiding officer misdirected himself by disregarding the inherent and important probabilities in the appellant’s version, in favour of the substantial contradictory version of events as described by the complainant.

[12] According to the appellant, it is highly improbable that Vlok would have prevented complaint’s co-worker from assisting her during the alleged assault, as the complainant testified in chief:- “the person that the accused came with prevented them from doing anything Your Worship”

[13] Appellant submitted that it is highly improbable that the two police officers (Oelofse and Moloi) would have completely ignored the fact that appellant was still busy assaulting the complainant (which was allegedly still in process according to her testimony) upon their arrival (“He was on top of me and throttling me”) and not arrest the appellant forthwith, because a crime was obviously in progress in their presence.

[14] Appellant’s further submission was that although complainant testified that he throttled her several times around her neck with his hands there were no physical marks on her neck.

[15] In as far as the contradictions in the respondent’s case are concerned, the appellant submissions can be summarised as follows:-

15.1 that the trial court erred in finding that the contradictions between complainant’s evidence and her affidavit (Exhibit “A”) are not material and substantial;

15.2 that Susan Zwane said she was inside the office when the old woman assaulted complainant. The complainant denied being assaulted by the old woman and that Suzan Zwane was in the office;

15.3 that contrary to her evidence in chief that Susan Zwane was never inside the office at the time, complainant conceded during cross-examination that it might have happened that Susan Zwane pulled her out of the office;

15.4 that although she initially denied ever fighting with the old lady and the wife of the appellant, complainant conceded during cross-examination that the appellant’s wife “fell to the ground during the wrestling”;

15.5 that during cross-examination the following contradictions between the contents of Exhibit C (the letter complainant’s attorney wrote to the commissioner) and complainant’s testimony became apparent:-

15.5.1 that the struggle with the old lady and appellant’s wife inside the office is described as a “battle” in Exhibit “C”;

15.5.2 that she stated further that appellant did not say anything to her when he arrived, but immediately assaulted her. To this discrepancy, complainant answered “no comment”;

15.5.3 that she tried to run away, but she denies this in her evidence. To this discrepancy, complainant answered “I do not know” there was nowhere to run to because the gate was closed;

15.5.4 that she fell down, instead of the appellant pulled / threw her down as she testified;

15.5.5 that appellant sat on her chest and assaulted her, contrary to her testimony that appellant kneeled on her chest. To this discrepancy, complainant answered “no comment”;

15.5.6 that she never alluded to being kicked in Exhibit C. To this discrepancy, complainant answered “no comment”;

15.5.7 that she never alluded in Exhibit C that appellant called her a ‘kaffir’. To this discrepancy, she answered “I don’t know why he did not write it”.

15.5.8 she never alluded to the dragging to the verandah in Exhibit C, as she so elaborately testified in court. To this discrepancy complainant answered “I did not know how that happened but I remember that when I made the statement I told them about it”.

15.6 that the contradictions as far as the complaint’s testimony and that of witness Anna Diphoko were as follows:-

15.6.1 that complainant was not kicked, when complainant said she was;

15.6.2 that complainant said Anna was outside when the scuffle over the book took place, when Annah said she was inside.

[16] Lastly, the appellant submitted that the presiding officer erred in accepting the state’s version “because it makes more sense” and rejected the version of the appellant as being not reasonably possibly true. Appellant’s counsel maintains that the appellant’s version of the events does not deviate from the actions of a reasonable police officer under the circumstances, and that any “assault” on the complainant was reasonable in terms of section 49 of the Criminal Procedure Act 59 of 1977, to overcome her resistance to an unlawful arrest. Further that should this Court find that the appellant did in fact unlawfully assault the complainant, at most, it could only have been assault common, and definitely not assault with intent to do grievous bodily harm.

[18] In as far as sentence is concerned the appellant submitted that the presiding officer did not exercise his discretion properly and that the sentence imposed is totally out of proportion to the gravity or magnitude of the offence.

[19] The respondent’s counsel conceded to all of the above submissions by the appellant and submitted that the conviction and sentence of the appellant be set aside.

[20] The trial court made a finding that the contradictions in the respondent’s case were not material and that it did not affect the credibility of the witnesses. A critical analysis of the evidence before the trial court reveals that the only contradictions that can be considered from many that were mentioned by the appellant’s counsel are the following:-

• In as far as the scuffle in the office is concerned, the complainant said Annah Diphoko was not in the office but outside, when Annah herself said she was inside;

• According to Anna she did not see the kicking, whilst complainant said she was kicked;

• The charge sheet alleges that complainant was hit with fists, complainant on the other hand denied it. Annah said complainant was hit with fists.

[21] In as far as the contradictions as to whether Annah was inside the office or not, the trial court was correct to conclude that it was not a material contradiction, as the fact remains that complainant insisted that although Annah was outside, she was able to see what was happening inside the office. Annah herself said she saw what happened inside the office. Their evidence as far as what happened inside the office corroborates each other on material aspects of the scuffle.

[22] In as far as the contradiction concerning the kicking and the hitting with fists are concerned, the trial court’s finding that they did not affect the credibility of these two witnesses, was in my view correctly made. Sight should not be lost of the fact that the case against the accused, although a mere simple assault with intent to do grievous bodily harm coupled with crimen injuria, took almost four years to be tried. It is quite understandable that witnesses may have somehow lost memory of what happened four years ago.

[23] Of importance is that it is apparent from the record of proceedings that the trial court when coming to this conclusion took into consideration the fact that the two witnesses corroborated each other on quite a number of material aspects of the incident, which fact cannot be ignored by this Court. The said areas of corroboration are:-

• that they went to collect their money;

• that they went inside the office when they were collecting money from Magogo;

• that the scuffle over the book started because there were two different amounts of money written in respect of the complainant in the book which Magogo was using;

• that the scuffle over the book consisted of the parties involved therein in pulling the book towards their respective sides;

• that there was no assault in the office;

• that when appellant arrived, after the complainant was shown to him, he went straight to her (the complainant);

• that he grabbed her with her neck;

• that he chocked or throttled her;

• that she fell to the ground;

• that appellant was seen on top of the complainant, (one said he was kneeling on top of her and the other one said sitting on top of her);

• that he pulled / dragged her on the ground whilst complainant was sitting on her buttocks;

• that there was an iron pole at the varendah, complainant’s arm was twisted / hit against it by the appellant;

• that complainant’s hand was injured;

• that appellant uttered the word “kaffir” when he was so busy assaulting complainant;

• that both witnesses for the state said the word “kaffir” and “kaffirmeid” to them are the same; and

• that the gates were closed when this incident happened.

[24] The corroboration enumerated above is so overwhelming and by far outweighs the contradictions that were referred to in paragraph 23 above.

[25] Many other contradictions which the appellant referred to sterm from Exhibit C which was described in court as the letter which was written by the complainant’s attorney to the commissioner and from the statement that was made by another witness, Suzan Zwane. The complainant’s attorney and Suzan Zwane were not called by any party during the proceedings to testify. Their statements were not authenticated at any stage during the proceedings in court.

[26] The fundamental rule for cross-examination on the contents of a document to have any relevance and any evidential weight whatsoever is that the document that is used to cross examine on, must be authenticated. Authenticity in this context means that there is sufficient proof that:-

1. The document was deposed or attested to or prepared, executed or written by the person who purports to have done so; and

2. The document indeed contains what the deponent / author had conveyed.

[27] In the case of Carpede v Choene 1986 (3) SA 445 (O) 454I – 455A the court held that:-

“In order to attach any evidential value to the evidence emanating from the cross-examination, the document has to be authenticated, meaning in this context that what is stated in the document was actually stated by the deponent / author, irrespective of whether it was the truth or not. If the document is not authenticated at some stage during the trial, the contents of the document cannot be used either as evidence or to attach any evidential weight to the discrepancies or other evidence emanating from the cross-examination. See Carpete v Choene 1986 (3) SA 445 (O) 454I – 455A.”

Therefore the conclusion that I arrive at is that there is no weight that can be attached to the contradictions relating to these two statements.

[28] Usually a court is faced with conflicting evidence in nearly every case. To arrive at the correct factual finding, the court must decide what evidence to accept and what to reject. The proper way to decide between the two opposing versions is by reference to the probabilities, demeanour and credibility.

[29] I find the following remarks in the case of S v Mafaladiso en Andere 2003 (1) SACR 583 (A) 593e – 594h apposite in this matter when evaluating the evidence in situations where there are contradictions:-

“The juridical approach to contradictions between two witnesses and contradictions between the versions of the same witness (such as, inter alia, between her or his viva voce evidence and a previous statement) is, in principle (even if not in degree), identical. Indeed, in neither case is the aim to prove which of the versions is correct, but to satisfy oneself that the witness could err, either because of a defective recollection or because of dishonesty. The mere fact that it is evident that there are self-contradictions must be approached with caution by a court. Firstly, it must be carefully determined what the witnesses actually meant to say on each occasion, in order to determine whether there is an actual contradiction and what is the precise nature thereof. In this regard the adjudicator of fact must keep in mind that a previous statement is not taken down by means of cross-examination, that there may be language and cultural differences between the witness and the person taking down the statement which can stand in the way of what precisely was meant, and that the person giving the statement is seldom, if ever, asked by the police officer to explain their statement in detail. Secondly, it must be kept in mind that not every error by a witness and not every contradiction or deviation affects the credibility of a witness. Non-material deviations are not necessarily relevant. Thirdly, the contradictory versions must be considered and evaluated on a holistic basis. The circumstances under which the versions were made, the proven reasons for the contradictions, the actual effect of the contradictions with regard to the reliability and credibility of the witness, the question whether the witness was given a sufficient opportunity to explain the contradictions – and the quality of the explanations – and the connection between the contradictions and the rest of the witness’ evidence, amongst other factors, to be taken into consideration and weighed up. Lastly, there is the final task of the trial Judge, namely to weigh up the previous statement against the viva voce evidence, to consider all the evidence and to decide whether it is reliable or not and to decide whether the truth has been told, despite any shortcomings.”

[30] In the case of R v Dhlumayo 1948 (2) SA 677 (A) 705 par 6 it was further recognised that even when inferences from proven facts are in issue, the trial court can be in a more favourable position than the Court of Appeal because it is better able to judge what is probable or improbable in the light of its observation of persons who have appeared before it.

[31] However, it stands to reason that the Appeal Court will not always defer to the lower court’s finding, for this would mean that the right of appeal against such findings would be illusory (Protea Assistance Co Ltd vs Casey 1970 (2) SA 643 (A) 648 D-E; SANTAM Bpk v Biddulph 2004 (5) SA 586 (SCA) par. 5) This court is only entitled to reverse the findings of the trial court if it is satisfied on adequate grounds that they are wrong.

[32] Fortunately, it appears from the judgment of the trial court that it explained fully the basis of its findings on facts and why it regarded the evidence of the appellant as highly improbable. Despite a detailed study of the submissions made by the appellant’s counsel in this regard, I found nothing in the record of proceedings that supports the appellant’s submissions that the factual findings made by the trial court are wrong. I therefore remain unpersuaded to conclude that the trial court failed to properly consider the probabilities and improbabilities in this matter.

[33] I fully agree with the trial court that for the reasons given by it, the version of the appellant (that the complainant was never assaulted by anybody including him and further that she did not have any injuries when he booked her into the cell) is highly improbable. I am thus satisfied that the trial court correctly regarded the contradictions as of less significance for it to disregard the complainant’s version. The finding by the trial court in as far as the contradictions are concerned, cannot in my view, be faulted.

[34] The appellant’s further submission that in as far as the charges are concerned, there is serious doubt that exists as to whether the state proved its case beyond reasonable doubt that the appellant intended to inflict grievous injuries on the complainant and whether the words that form the basis of count 2 were ever spoken, does not hold water.

[35] Assault “GBH” consists of an assault committed with the intention to cause grievous bodily harm to the victim. This does not imply that serious injuries have to be inflicted on the victim or that a weapon or object has to be used on the victim. See Zondi 1930 TPD 107; Radebe 1957 (2) PH H 261 (G); Maradze: Bonifasi 1958(3) SA 540 544 D; Joseph 1964 (4) SA 54 (RA); Dube 1991 (2) SACR 419 (ZS).

[36] In Madikane 1990 (1) SACR 377 (N) the accused were convicted of assault with intent to do grievous bodily harm despite the absence of observable physical injury.

[37] Where a weapon or object is used to assault, the required intention can be found more readily. In this connection the courts have provided guidelines in order to justify such a deduction from the facts before the court. In Dipholo 1983 (4) SA 757 (T) 760 it is summarized as follows:-

“Die vraag ontstaan dan of die staat bo redelike twyfel bewys het dat die appellant die nodige opset gehad het. Dit is n feitlike vraag wat aan die hand van onder andere die volgende faktore uitgemaak moet word”:-

• Die aard van die wapen wat gebruik is en op welke wyse did gebruit is;

• Die mate van geweld was aangewend is en hoe dit aangewend is;

• Die deel van die liggaam waarop gemik is;

• En ook die aard van die besering, indien enige, wat opedoen is”

[38] Besides chocking / throttling the complainant, the evidence proves that he hit / twisted the hand of the complainant against a steel pole/iron that was there in the verandah. The nature of this weapon, a steel which was imbedded in the soil, amounts to a dangerous weapon. The manner, in which it was used by the appellant is also dangerous. Taking all these factors into consideration, together with the part of the body which the appellant directed the blow at, amounts to a clear indication that appellant had an intention of causing complainant grievous bodily harm. Furthermore, the conduct / assault in this manner was also unwarranted as the complainant was already on the ground, defenceless.

[39] The submission by the appellant that there is a material contradiction in so far as the exact words that were uttered in count 2 is not a correct reflection of the proceedings in the trial court. Whilst it was accepted by both witnesses that the word Kaffir was not mentioned in their statements, they both mentioned this word in their evidence in chief. The charge sheet refers to “Kaffirmeid”. When they were confronted during cross examination about the discrepancy between their evidence and the charge sheet, both of them indicated that Kaffir or Kaffirmeid to them refers to the same thing, they do not see any difference. Even if the charge sheet mentioned Kaffirmeid, the evidence before the trial court of these two witnesses cured the defect if ever it was being regarded as such.

[40] The submission by the appellant that the trial court erred in accepting that the complainant’s dignity was seriously infringed by the alleged use of the word “kaffir” because complainant said in her evidence that she did not know what the word meant at that time does not hold water. Quite clearly the appellant misconstrued the answer given by the complainant. He further selectively so and to the advantage of the appellant, did not quote the whole answer given by the complainant. The complainant, after answering that she did not know the meaning thereof, further explained that she knows that the word is usually used to refer to a black person and in a derogative manner, that is why she felt that her dignity was injured. It therefore stands to reason that the trial court’s finding on this count cannot be faulted also.

[41] In as far as sentence is concerned, the appellant submitted that the sentence is shockingly inappropriate. The respondent agrees with the appellant.

[42] A court of appeal always keeps in mind the following principles laid down in the case of S v Anderson 1964 (3) SA 494 (A) at 495 C-E and in many other cases when faced with the consideration of whether to increase or decrease a sentence, or to leave it unaltered.

“The decisions clearly indicate that a court of appeal will not alter a determination arrived at by the exercise of a discretion differently. There must be more than that. The court of appeal, after careful consideration of all the relevant circumstances as to the nature of the offence committed and the person of the accused, will determine what it thinks the proper sentence ought to be, and if the difference between that sentence and the sentence actually imposed is so great that the inference can be made that the trial court acted unreasonably, and therefore improperly, the court of appeal will alter the sentence. If there is not that degree of difference the sentence will not be interfered with”.

[43] Further at page 495 F-H:-

“As the essential inquiry in an appeal against sentence, however, is not whether the sentence was right or wrong, but whether the court in imposing its discretion properly and judicially, a mere misdirection is not by itself sufficient to entitle the Appeal Court to interfere with the sentence, it must be of such a motive, degree, or seriousness that it shows, directly or inferentially, that the court did not exercise its discretion at all or exercised it improperly or unreasonably. Such misdirection is usually and conveniently termed one that vitiates the court’s decision on sentence”.

[44] In S v Scheepers 1977 (2) SA 155 (A) at p159 A-D Viljoen J.A. expressed a personal opinion that imprisonment is justified only if the offender needs to be removed from society in order to protect society and if the purposes of punishment cannot be achieved through any other punishment. In addition, the court also declared that if the same objects of punishment can be achieved through an alternative sentence, that alternative sentence should be preferred. See also S v Hoffman 1978 (4) 61 (A) 65 B-D.

[45] Appellant is a first offender. He was 35 years at the time of conviction. He has worked in the police force for +- 16 years. He is a Warrant Officer by rank. He is gainfully employed as a police officer and earns a net salary of R11 000-00. He has reached middle age without a criminal conviction. He is married and has two dependent children. The offences appellant committed remain serious. The complainant on the other hand, after being assaulted, landed unfortunately in jail. Although she laid a charge against the appellant it was not treated with the utmost respect it deserved. It took long to be heard. J88 documents went missing. Another witness (the other police officer, Mr Moloi) could not be called due to the fact that it took long to be heard and he could not be traced. All of these add to the humiliation she suffered as a result of the assault. Without overlooking all of the above mentioned facts, I am of the view that the seriousness of the offence and the prevalence thereof do not per se justify the presiding officer to overlook the personal circumstances of the appellant.

[46] It is a principle in our law that a first offender should not be imprisoned if imprisonment can legitimately be avoided. See S v Hofman 1978 (4) SALR 61 (A) 65 B-D. Courts are always urged to strive for a proper balance that has due regard to all the objects of sentencing. One has to bear in mind that too harsh a punishment neither serves the interest of justice nor those of a society. Neither does the one that is too lenient. A proper balance of these objects informs me that an imprisonment term coupled with an option of a fine in the circumstances of this matter can still achieve the same intended purpose of punishment.

[47] I therefore come to the conclusion that the presiding officer improperly exercised his discretion by overemphasising the seriousness of the offence above the personal circumstances of the appellant and made a finding that he deserved to be removed from the society.

[48] Consequently the following order is made:-

48.1 The appeal against conviction on both counts is dismissed;

48.2 The appeal against sentence is upheld. The sentence of three (3) years imprisonment is hereby set aside and substituted with the following:-

Count 1 = (Assault with intent to do grievous bodily harm)

One thousand rand (R1000-00) or Three (3) months imprisonment.

Count 2 = (Crimen Injuria) Two thousands rand

(R2000-00) or Six (6) months imprisonment.

________________

A.M. KGOELE

JUDGE OF THE HIGH COURT

I agree

________________

SAMKELO GURA

JUDGE OF THE HIGH COURT

ATTORNEYS

FOR THE APPELLANT : Van Rooyen Tlhapi Wessels Inc.

FOR THE RESPONDENT : State Attorney

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