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NORTH WEST HIGH COURT, MAFIKENG

CASE NO.: CA 30/2012

In the matter between:-

HENDRICK L THEUNISSEN .......................................................................Appellant

and

THE STATE ..................................................................................................Respondent

CRIMINAL APPEAL

KGOELE J & GUTTA J

DATE OF HEARING : 02 NOVEMBER 2012

DATE OF JUDGMENT : 06 DECEMBER 2012

FOR THE APPELLANT : ADV STRYDOM

FOR THE RESPONDENT : ADV MOKONE

JUDGMENT

KGOELE J

[1] The appellant was convicted of Assault with intent to do grievous bodily harm. His appeal is against the conviction only.

[2] The appellant’s main ground of appeal is that the trial court erred in accepting the evidence of a single witness led by the State without applying the cautionary rules. Further that the trial court erred in not finding the version of the appellant to be reasonably possibly true.

[3] The State led the evidence of the complainant only which in brief is to the effect that on the day of the incident she had just reported for duty at the appellant’s home when the incident happened. Whilst walking towards the house where she performs her duties, appellant came with three dogs and set them on her by using the word “sa”. All three dogs attacked her and bit her. She got injured and later managed to run into the house. She received medical treatment at both Vryburg and Bloemfontein Hospitals respectively. She has been employed by the Theunissens since 15 March 1981. The dogs were used to her. It was for the first time they acted in that manner. It was put to her during cross-examination that she was afraid of the dogs and always chased them away with a broom, but she denied these allegations. The J88 accepted as evidence corroborated her testimony that she sustained very serious injuries. She further indicated that there was no ill-feelings between her and the appellant. She does not know why the appellant set the dogs on her. She had not yet even talked to the appellant on that day. It was put to her that infact appellant just talked to her nicely giving her instruction to clean Peter’s house before the dogs stormed at her. She vehemently denied this allegation. She indicated that she heard the word “sa” very well coming from the appellant. She knew his voice very well as the appellant grew infront of her. She intimated that she would not mistaken the words “sê kamer” with “sa” when it was put to her by the appellant’s Counsel.

[4] The defence then called the appellant and three witnesses. The testimony of the appallant is in brief to the effect that he was in the company of one Peter when the complainant came from the direction of the shop towards the house. He stopped her and gave her instructions to clean Peter’s room after she finished with her chores in the house. The communication was in Afrikaans. As the complainant was about to respond one dog by the name of Brutus started barking and immediately ran towards the complainant. He tried to stop it. The complainant then started waving the bag she was carrying trying to stop the dog. Appellant warned her not to scream and remain calm.

[5] At that stage it was when the other two dogs, that is Mica and Felix also started running towards the complainant. The appellant and Peter tried to stop them. None of the dogs had yet bitten the complainant by then. The appellant managed to get hold or grab two of the dogs. The complainant then grabbed Peter with her hands around his body shielding herself with him. He then saw the complainant lying on the ground. He did not see how she fell. It was at that stage when Mica bit the complainant. Peter tried to grab Mica with the aim to stop the dog from biting the complainant but was not successful. The appellant at that stage had grabbed the other two dogs and held them on the grass. Mica then run away.

[6] Peter assisted the complainant from the ground and she then proceeded into the house. The appellant denied ever setting the dogs on the complainant by the utterance of the word “sa” as the complainant testified. He further denied ever using such word on his dogs and they therefore cannot react to the said word. The words that he used when instructing his dogs are “vat hom” or “fok hulle op” saying that aggressively. Appellant alleged that complainant might have misheard him when he said “se kamer” or “skoon maak” and mistaken it to be the word “sa”. His dogs will never respond to the word “sa”. He further said that after the incident he took the complainant for medical attention at the local clinic and confirmed that she was then later treated at Vryburg and Bloemfontein respectively.

[7] The defence then called Siena Rubete. Her testimony in brief is to the effect that she was also an employee and as she was testifying still an employee of the Theunissens. She and the complainant were assigned to the house with different chores. On the day of the incident as she was busy inside the house she heard the dogs barking outside. She just remained inside the kitchen. She then heard a person screaming. She peeped through the window and saw Peter lifting the complainant from the ground. At that stage the appellant was holding two dogs on the grass and the complainant broke loose from Peter and ran into the house. She later realised that she sustained some injuries. She did not see how the injuries were occasioned. The complainant did not report to her that the dogs were set on her by the appellant. Her testimony indicates that she did not witness the actual incident of biting.

[8] The defence then called Peter Glober. He confirmed that he was in the company of the appellant on the day in question. The complainant went passed them and the appellant called her and gave her instruction referred to earlier on about the cleaning of the room. It was at that stage when two of the dogs, Felix and Brutus started barking. The complainant was in possession of an umbrella as well as her handbag. The appellant told her to stand still. The third dog being Mica then came running towards the complainant. The complainant started swinging her handbag and then ran towards him. At that stage the appellant grabbed the other two dogs and held them down on the ground. The complainant then grabbed Peter from behind. It was then when Mica, the dog came around and bit her. The complainant later proceeded to the house. He also followed her into the house where some assistance was rendered to the complainant who was injured. She was taken to the local clinic.

[9] The defence then called Johan Vos. He is a captain in the South African Police Services and attached to the dog unit. He told the court that he has 28 years experience in the service. He has attended several courses relating to dog training. In his duties he deals with a breed known as German Shepard which is the same breed as that of the appellant. He is an expert on dogs. He took the court through various aspects as to what is the normal behaviour of dog under certain circumstances.

[10] He inter alia informed the court that the dogs usually react to a specific instruction or instructions that it has been taught. At one stage he also indicated that a domestic dog can amongst its reaction be motivated by different aspects, for example if it sees its owner being attacked or a person appearing to be manhandling the owner it can react by attacking such person. In certain circumstances it can flee, so its reaction can depend on the various circumstances at that stage. He also told the court that a person who is frightened when confronted by a dog produces adrenaline which can activate a dog to attack. His testimony was basically in relation to the behaviour of different dogs in general.

[11] The submissions of the appellant’s counsel can be briefly summarised as follows:

11.1 There must be doubt in the trial court’s mind whether the state has proved its case beyond reasonable doubt because there are various contradictions in the evidence of the complainant, she is also a single witness whereby cautionary rules should apply, and lastly that there are various aspects where she is clearly bias. Counsel for the respondent pointed to several aspects in which he based his submission that complainant is biased from, amongst others the following:

• she denied that the appellant stopped the dogs from attacking her when on her own version she does not know how the dog stopped from further biting her;

• she said the appellant did nothing and during cross-examination, she said the appellant told her not to shout;

• she does not admit that Mr Glober picked her up when Mr Grobler’s evidence was corroborated by Siena who is her family member.

11.2 The evidence of the appellant and the defence witnesses is reasonably possibly true. It is highly improbable that the appellant would say to her “do not scream, stand still” when he had the intention to assault her and had set the dogs on her. This conduct clearly shows that he wanted to protect her that the dogs should not bite her when she was so afraid of them;

11.3 Furthermore, the other aspect which is important is that according to Siena, the complainant never said to her that the dogs were incited. Complainant gave no reason why she did not tell her when infact they are related. This is strange;

11.4 Lastly that according to the complaint and the appellant, there are no bad blood between the two of them, therefore there exists no reason why the appellant would set the dogs on the complaint. Therefore it is highly probable as explained by Captain Vos, that the dogs were incited by the fact that she feared them.

[12] Respondent’s counsel on the other hand submitted that it could reasonably be inferred under the circumstances of this matter that the dogs were set on the complainant. The appellant failed to provide a reasonable explanation why the dogs reacted the way they did despite the fact that they knew the complainant so well. According to him the evidence of Captain Vos did not assist the appellant at all as he had no information/knowledge of the dogs in question in this matter.

[13] According to the respondent’s counsel, the trial court was alive and mindful of the application of the cautionary rule and further that it holistically considered the evidence before it when it came to the conclusion that the state proved its case beyond reasonable doubt.

[14] It is a well established judicial practice that the evidence of a single witness should be approached with caution, his or her merits as a witness being weighed against factors which militate against his or her credibility. See S v Webber 1971 (3) SA 754 (A) at 758G-H. The correct approach to this so called “cautionary rule” was set out in cases like S v Sauls and Others 1981 (3) SA 172 (A), R v Bellinghan 1955 (2) SA 566 (A) and many others that followed.

[15] The following remarks in S v Shackell 2001 (4) SA 1 (SCA) par 30 are equally important in this matter:

“It is a trite principle that in criminal proceedings the prosecution must prove its case beyond reasonable doubt and that a mere preponderance of probabilities is not enough. Equally trite the observation that, in view of this standard of proof in a criminal case, a court does not have to be convinced that every detail of an accused’s version is true. If the accused’s version is reasonably possibly true in substance, the court must decide the matter on the acceptance of that version. Of course it is permissible to test the accused’s version against the inherent probabilities. But it cannot be rejected merely because it is improbable; it can only be rejected on the basis of inherent probabilities if it can be said to be so improbable that it cannot reasonably possibly be true. On my reading of the judgment of the Court a quo its reasoning lacks this final and crucial step. On this final enquiry I consider the answer to be that, notwithstanding certain improbabilities in the appellant’s version, the reasonable possibility remains that the substance thereof may be true” (See also S v V 2000 (1) SACR 453 (SCA) paragraph 3).”

[16] 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.

[17] 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.

[18] It is common cause in this matter that complainant was bitten by a dog/dogs when she did nothing to provoke them and sustained serious injuries. The only issue that the trial court had to deal with was whether the appellant caused the dog to attack the complainant or not. The trial court found it highly improbable that the dogs that were so used to the complainant just decided to attack her when she was doing nothing to them. The trial court accepted the version of the complainant and rejected that of the appellant, and gave extensive reasons for doing so.

[19] The appellant could not provide a reasonable explanation as to why the dogs reacted the way they did. The appellant’s counsel submitted that from the evidence that was led it is quite clear that the dogs attacked the complainant because she was afraid of them and did not like them as Siena and Captain Vos testified.

[20] For the reasons that will follow, I am of the view that the trial court correctly rejected this reasoning by the appellant’s counsel:

• the dogs knew the complainant very well;

• they had been there for ± 3 years and they grew up infront of her;

• the dogs saw the complainant on a daily basis;

• the complainant worked there since the appellant was still young;

• the complainant had been working in the house and had some interactions with the dogs many times;

• according to Siena and the complainant, there were times when complainant came and worked at the appellant’s place when there was nobody at the premises except the dogs. She could come and go without the dogs doing anything to her;

• complainant did nothing to the dogs on the day in question that could have instigated them;

• the appellant’s version is that they are trained dogs, and were obedient at all times, but on this particular day when he directed them to stop before attacking the complainant, the dogs did not listen to him.

[21] If Siena’s allegation that complainant was afraid of the dogs, together with the explanation by Captain Vos that dogs usually bite a person who is afraid of them are to be believed or accepted as reasonably possibly true, the dogs could have time in memorial attacked her when she was working there when nobody was at home. It is quite surprising that the complainant could become so afraid of the dogs when the owner, the appellant was there to such an extent that her adrenaline could instigate the dogs, than when she is alone with the dogs. One would expect her adrenaline to rise when there is nobody at home.

[22] I fully agree with the submission by the counsel for the state that Capt Vos evidence could not assist the appellant at all. He testified about the dogs of that species in general. He had no information/ knowledge whatsoever about appellant’s dogs. He did not know now how they were trained and therefore could not express any opinion from which the court can make any informed decision about the behaviour of the appellant’s dogs.

[23] In Laubscher 1979(3) SA 47 (A), it was stated that the facts stated or opinion expressed, will have little (if any) value if it is not linked to the facts of a particular case. The witness must therefore be familiar with the facts of the case. Furthermore, in Mkohle 1990 (1) SACR 92 (A) it was also stressed that the evidence of an expert must not be based on a hypothetical situation but that grounds exist upon which the fact or opinion is founded.

[24] Fortunately, it appears from the judgment of the trial court that it explained fully the basis of its findings on facts, contradictions, probabilities including 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 these 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. The record of proceedings also reveals that the trial court considered the cautionary rules applicable in this matter.

[25] Counsel for the appellant relied also heavily on the submission that complainant was biased, citing amongst others the reason that I have enumerated above. Sight must not be lost firstly that, the complainant was during the incident attacked not by one dog, but three. It is quite obvious that she had a fierce struggle with all three dogs in order to protect herself. It does not come as a surprise that she denied or could not talk about some of the events that happened during the fracuss and after. Secondly, the incident happened on the 10^th March 2009. When the evidence was obtained from the complainant it was on the 6^th April 2010, a year later.

[26] Unfortunately in this matter the question as to why the dogs suddenly charged at the complainant remained unanswered except for the explanation by the complainant. I am of the view that something must have been done to the dogs for them to have behaved in the unusual manner in which they did. The version of the complainant was thus correctly accepted by the trial court and that of the appellant rejected.

[27] Consequently the following order is made:

27.1 The appeal against conviction is dismissed.

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A.M. KGOELE

JUDGE OF THE HIGH COURT

I agree

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N. GUTTA

JUDGE OF THE HIGH COURT

Attorneys for the Appellant : Kotze, Louw & Swanepoel

C/O Van Rooyen, Tlhapi & Wessels

Attorneys for the Respondent : Director of Public Prosecutions

Old Standard Bank Building

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