---

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

                                                            REPORTABLE/NOT REPORTABLE

CASE NO: CA&R4/2013

                                                                                                DATE HEARD: 28 MAY 2014

                                                                                 DATE DELIVERED: 28 MAY 2014

In the matter between

KHANYILE NGCOZA                                                                                                 Appellant

vs

THE STATE                                                                                                            Respondent

JUDGMENT

BROOKS AJ:

[1] The appellant was convicted in the court a quo of assault with intent to do grievous bodily harm arising out of an incident which occurred on 21^st January 2012 at or near the Douglas Smith Highway in the district of East London and in which Luwando Xama, the complainant, alleged that he had been hit with a hammer.  The appellant was sentenced to two years imprisonment.  In terms of the provisions of s 103 of Act 60 of 2000 the appellant was not declared to be unfit to possess a firearm.  With the leave of the court a quo, the appellant now appeals against both his conviction and the sentence imposed upon him. 

[2] Certain facts emerged from the record as being common cause between the parties.  They can be listed shortly as follows:

·                     The complainant was injured on or about 21 January 2012;

·                     The complainant was transported to Frere Hospital in East London;

·                     The complainant received treatment at Frere Hospital and was thereafter discharged;

·                     The appellant is a member of the South African Police Services.  At the time of the incident he was stationed at the Buffalo Flats police station in East London;

·                     The appellant was on duty during the evening of 21^st January 2012.”

[3] The evidence of the complainant was marked by inconsistencies.  Initially, he indicated that the incident in which he was assaulted occurred after 10pm.  Immediately thereafter, he stated that it occurred after 12pm.  In response to a question from the magistrate, he then stated that the incident occurred before 12pm.  His evidence relating to his knowledge of the appellant was no better.  Initially, he testified that he did not know the appellant prior to the incident.  Thereafter, he amended his evidence and stated that he recognized the appellant on the evening of the incident because he passes the complainant’s business premises every day.  To this he added testimony to the effect that he knew the appellant “the first day of incident”, that he had seen the appellant’s car parked at a certain place where the complainant goes and that the complainant had been told that the appellant attends the same church where the complainant fetches his “muti” from. 

[4] The State also led the evidence of NGCOZA M., who was the complainant’s companion on the night in questioNgcoza  She claimed in her evidence in chief to know the appellant because he stays in the same street.  She referred to him as “NGCOZA” whose other name is “M.”.  Under cross-examination she claimed that she had known the appellant for a long time.  She said that she knew him as “Tata Ka-M.”, the father of M., because one of his children is named M.  It was by this name that she reported the incident to the police.  This led to ongoing telephonic contact in the hands of a person she referred to as “Mr. Dick”, who worked at the police station where the report was made.  Her evidence was that Mr. Dick informed the complainant and M. that the appellant had said his name was NGCOZA but that his child was using the surname of the mother.  It was put to M.by Mr. D., who represented the appellant in the court a quo, that the latter would give evidence to the effect that it was only after M. told the police where the appellant’s wife was working that they were able to know the name of the appellant.  M. disputed this. 

[5] After the close of the defence case, the magistrate called Warrant Officer Dicks as a witness specifically in respect of the identification of the appellant.  He put to Dicks the evidence of M.to the effect that she knew the appellant only as “Tata M.”.  Dicks confirmed this.  His evidence went on to explain that when he interviewed the complainant and M. for the first time they told him that the suspect’s name was a Mr. M. and that he was employed at Buffalo Flats police statioNgcoza  Upon his enquiry it transpired that no one by that name was stationed there.  He requested the complainant and M.to present afresh at the police station, which they did.  His evidence was that upon their arrival for this second visit, M. informed him that she had just seen the wife of the alleged accused.  Dicks asked her to point out the person to whom she referred, and she pointed out Mrs. NGCOZA who is employed at Duncan Village Detective Unit as a clerk.  This is the mechanism by which Dicks obtained the contact details of the appellant employed at Buffalo Flats police statioNgcoza  He stated that M. explained that she knows the daughter of the appellant well and that as far as she could remember the daughter’s surname was M. 

[6] Under cross-examination, Dicks was asked to confirm that M. had testified that she was staying at [……].  Dicks was able only to confirm the accuracy of the name of the street.  However, he also confirmed that when, on the information provided, he visited the home of the appellant he asked the latter about the address given by M..  He stated that the appellant even went so far as to point out the property concerned and to inform Dicks that a teacher was residing at that house.  He informed Dicks that no one by the name of NGCOZA, which is M.’s first name, was known to him in that area.  Dicks confirmed that he would be unable to dispute any evidence which may be placed before the court to show that M. did not in fact reside at […….]. 

[7] In due course, the magistrate gave leave to the defence to call a witness in rebuttal.  The defence case was reopened and the evidence of T. W. was led.  This witness testified that she stays at [………], and that M.is not amongst those who stay at that address.  Proof of residence was offered to the magistrate in support of this oral evidence.  He indicated that it was not necessary to hand in the documentation offered. 

[8] It is pertinent to record that no formal identification parade was held as part of the investigation of the complaints against the appellant.  The complainant and M. were requested to identify the appellant whilst he was sitting in the dock.  It has been held that such identification holds very little evidential value[1]. 

[9] In pleading not guilty, the appellant elected not to outline the basis of his defence in terms of s 115 of Act 51 of 1977.  Nothing turns on this per se.  However, because his version as put to the State witnesses and as repeated by him in his evidence placed him on the scene of the incident after the assault, the magistrate clearly was of the view that the identification of the appellant as the perpetrator was not an issue which he needed to resolve.  This approach even found expression in the debate associated with the application for leave to appeal.  In my view, the magistrate erred in this regard.  Notwithstanding that the appellant did not place his identification unequivocally in dispute in terms of an appropriately worded statement in terms of s 115 of Act 51 of 1977, it is obvious from the challenges made on his behalf in the cross-examination of the State witnesses and from the content of his own evidence that, in disavowing any participation in an attack upon the complainant, he was disputing the identification of him by the complainant and M.as the perpetrator.  Consequently, the onus remains squarely on the State to prove the identification of the appellant as the perpetrator beyond a reasonable doubt. 

[10] The issue which arises is whether the inconsistencies in both the evidence of the complainant and the evidence of M. which relate to the identification of the appellant as the perpetrator, and indeed the apparent remoteness from the incident itself of the process by which such identification is claimed to have eventually occurred, are factors which raise doubt as to the accuracy of the identification of the appellant as the perpetrator.  In my view, the determination of this issue leads inevitably to the conclusion that insufficient evidence which is unequivocal, consistent and reliable in the result was placed before the magistrate in order for him to determine beyond a reasonable doubt that it was the appellant who assaulted the complainant. 

[11] The evidence for the State was further weakened by inconsistencies and contradictions in the evidence of the complainant with regard to whether the complainant lost consciousness when attacked, as he initially claimed, or whether he retained consciousness and therefore could be believed under cross-examination when he said that a group of people came close after the attack and that he did not know who his attacker was.   

[12] The complainant testified that he was hit twice on the head, once on the backbone and once on the back with the hammer.  M. claimed that he was hit twice on the head and once on the pelvic bone.  The customary J88 medical examination report which had been completed in respect of the complainant was handed in by consent and without accompanying evidence from the medical officer who had completed it.  The wounds noted thereon were an abrasion at the back and lacerations on the forehead on the right side.  No fractures were detected.  No hammer appears to have been recovered from the scene of the incident.  Questions which come to mind immediately about the apparent incompatibility between evidence disclosing blows to the head with a hammer and the sort of injuries which are recorded on the J88 remain unanswered in the result. 

[13] At its best, the evidence from the complainant does not identify his attacker.  An endorsement on the J88 medical examination report which states “assault with a hammer by Police” is not the result of information from the complainant.  M. testified that she gave this information to the doctor who completed the form.  Her evidence relating to her observation of the assault itself is fraught with inconsistencies as to distances between her and the incident, her manner and direction of movement and her bodily positioning and opportunity for observation at crucial moments. 

[14] Against this rather patchy background, the appellant gave evidence and described how he and his colleague, M. T., came upon the scene shortly after an attack appears to have been perpetrated on the complainant.  Bar minor inconsistencies on issues not material to the determination of the matter, the evidence of the appellant and T. is mutually corroborative.  They came upon the scene at about 2am.  T. was the driver of the police vehicle.  A group had gathered around the complainant who was plainly injured.  The appellant was not party to any assault upon the complainant.  No ambulance having arrived notwithstanding one having been requested, T. and the appellant transported the complainant to Frere Hospital.  They were accompanied by some of the crowd.  As this act did not involve active police duty per se, no note of this was made in any pocket book.  The appellant stated in his evidence that he did not have any child who went by the name M.  

[15] There is no onus upon an accused person to prove his innocence.  If he elects to place evidence before the Court, he is entitled to an acquittal if his version is reasonably possibly true.  In applying this test, the Court is not required to believe the story, still less has it to believe it in all its details.  It is sufficient if it thinks that there is a reasonable possibility that it may be substantially true[2]. 

[16] In my view, the magistrate erred in not concluding that the State had failed to prove beyond a reasonable doubt that the appellant had assaulted the complainant in the manner set out in the charge sheet.  The fact that it is common cause that the appellant presented himself at the scene of the incident on the night in question is insufficient to exclude the necessity for the State to prove beyond a reasonable doubt that the appellant was the perpetrator of the assault and that it occurred in the manner alleged.  In my view, the quality of the evidence available from the State witnesses is insufficient to discharge this onus.

[17] It follows that I am of the view that the appeal against the conviction should succeed.  I would propose that an order be made in the following terms:

“The appeal succeeds and the conviction and sentence imposed upon the appellant are set aside.”

_________________

R.W.NGCOZA BROOKS

JUDGE OF THE HIGH COURT (ACTING)

LOWE J,

 

I agree.  It is so ordered.

__________________

M.J. LOWE

JUDGE OF THE HIGH COURT

Appearing on behalf of Appellant:

Instructed by:

 

Appearing on behalf of Respondent:

Instructed by:

---

---