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Frazenburg v S (CA&R440/2013) [2014] ZAECGHC 47 (21 May 2014)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

                                                                             REPORTABLE/NOT REPORTABLE

CASE NO: CA&R440/2013

                                                                                                DATE HEARD: 21 MAY 2014

                                                                                         DATE DELIVERED: 21 MAY 2014

In the matter between

CASLIN FRAZENBURG                                                                                             Appellant

vs

THE STATE                                                                                                            Respondent

JUDGMENT

BROOKS AJ:

[1] The appellant was convicted of assault with intent to do grievous bodily harm and given the sentence of a fine of R3 000,00 or to undergo imprisonment for a period of 200 days.  A further fine of R200,00 or 120 days imprisonment was imposed but suspended for a period of 5 years on condition that the appellant is not convicted of assault with intent to do grievous bodily harm committed during the period of suspension.  He now appeals against the conviction and sentence with the leave of the Court a quo.

[2] In summary, the main grounds of appeal are:

· That the trial court erred in finding that the State had proved beyond a reasonable doubt that the appellant assaulted the complainant;

· That the trial court erred by not taking into account the material

contradictions in the evidence of the complainant;

· That the trial court erred in not taking into account that the complainant

was considerably drunk when the assault took place;

· That the trial court erred in rejecting the appellant’s version as not being reasonably possibly true.

[3] The complainant was the only witness who gave evidence implicating the appellant.  This evidence was given during more than one hearing, with the matter being remanded from time to time for various reasons, including, on one occasion, the observation by the magistrate that the complainant was attempting to give evidence while demonstrably under the influence of alcohol.  The matter was remanded until the following day and the complainant was kept in custody to sober up. 

[4] In his evidence in chief, the complainant stated that about two days before the assault, the appellant stopped his car whilst he was passing the complainant and reminded him that he owed the appellant R150,00.  He said that the two of them agreed that the complainant would pay the appellant at the end of the month.  He then stated that two days later he and two friends had been seated in front of the hotel on the morning of the assault.  One of his friends, Mzokolo, sent him in to buy a bottle of beer at the bar.  He complied.  The appellant, who is the owner of the bar, was inside.  The complainant said that when he approached, the appellant asked him where he got money from to buy the beer because he owed the appellant money.  In answer, the complainant placed the amount of R15,00 on top of the counter and turned around to call his friend to explain.  While he was waiting for his friend to enter, the appellant moved from where he was and grabbed the complainant, slapping him on both cheeks and hitting him with fists.  This, said the complainant, caused him to collapse and fall to the ground.  There, he recalls being kicked on the upper body.  He recalls further being dragged into a storage section where crates for bottles were kept.  There he slept for about three hours.  When he awoke, he noticed that he had loose teeth and that he was bleeding.  He walked out of the store room and let himself out of the gate at the entrance of the bar, going outside and taking a seat next to an FNB bank.  His friends appear still to have been there.  The complainant then went home to sleep.  The following day he went to Livingstone Hospital.  It seems that he required surgery on his jaws about two weeks later. 

[5] Under cross-examination, the complainant stated that he had been sitting outside with his friends for about two hours before the assault.  They were drinking, and the complainant had consumed a litre of Namaqua wine.  Significantly, no mention of this was made in the evidence in chief.  Later in the cross-examination, the complainant was asked to explain the content of a statement which he had made to the police sometime after the assault and in which he said that he and his friends had been drinking beers outside shortly before the assault.  Although he confirmed that the statement had been read back to him after he had given it, and that he had signed it as correct, the complainant suggested that maybe the person who took the statement hadn’t understood correctly because he had been drinking Namaqua wine.  After attempts to minimize the effect of alcohol on him, he conceded in cross-examination that he was under the influence of alcohol at the time of the assault.  He also stated that he had a black out when he was assaulted, and was then dragged to the storeroom where he regained consciousness.  This version developed into evidence which stated that his friend Mzokolo came into the bar when the complainant was already lying on the floor, after the assault, and was given his beer by the appellant.  He developed this evidence further to claim that Mzokolo saw him lying bleeding on the floor, took his beer and went outside and drank it.  He then confirmed that after he had slept in the storeroom he was “not so drunk anymore” and then went outside.

[6] The appellant’s version was put to the complainant and disputed by him.  It was repeated by the appellant when he gave his evidence.  In short, the appellant denied assaulting the complainant and stated that the complainant presents himself every day at the liquor store which the appellant owns.  On the day of the assault, the owner of the neighboring pub came to warn the appellant that a fight had broken out amongst a group of people outside.  The appellant saw the complainant lying on the ground and being assaulted.  He intervened, pulling the complainant towards the shop.  He dragged him to the front of the shop, just passed the door to the section where he stores his crates.  At that time, the complainant had no injuries to his face.  His attackers had been kicking him between his legs.  The complainant was under the influence of alcohol.  The appellant postulated that the complainant wished to implicate him falsely in the assault because the appellant has had many occasions when it has been necessary to chase the complainant and others away from the entrance of his store for being trouble makers whilst they are intoxicated.  Moreover, he informed the court that as a member of the Green Bushes Neighbour Watch, the appellant had been part of a group which caught the complainant’s two sons stealing goats and pigs on a local farm the previous year.  The sons were arrested and sent to a place of a safety.

[7] In our law it is possible for an accused person to be convicted on the single evidence of a competent witness (s208 of the Criminal Procedure Act 51 of 1977).  In such a case, the requirement remains proof of guilt beyond reasonable doubt.  In order to assist the courts in determining whether the onus has been discharged by the State, a rule of practice has been developed that requires the evidence of a single witness to be approached with special caution.  This means that the courts must be alive to the danger of relying on the evidence of only one witness, because it cannot be checked against other evidence.[1]

[8] An evidential basis for the suggestion that the single witness’s testimony is unreliable must be laid before a court needs to apply the cautionary rule.[2]  In my view, the inconsistency alone between the content of the complainant’s statement to the police and the content of his evidence in respect of what he had to drink prior to the assault upon him is sufficient evidential basis to apply the cautionary rule.  To this may be added the inconsistencies demonstrated by a comparison of his evidence in chief and his evidence under cross-examination on his observation of the movements of his friend Mzokolo who had sent him in to the shop to buy beer.  Intricately interwoven with these inconsistencies is an inconsistency that emerges when one examines the evidence from the complainant in chief to the effect that he lost consciousness moments after he was assaulted and therefore couldn’t tell the magistrate when and how this same friend arrived in the shop, and when one compares this to his evidence on the same point under cross examination where he claimed that his friend came in whilst the accused was assaulting him, saw him lying there and bleeding, and then simply took his beer from the appellant and went out and drank it.

[9] Where the cautionary rule is applicable, the trial court must demonstrate in the manner of treatment of the evidence before it that it is well aware of the dangers of a wrong conviction resulting from incorrect reliance upon the evidence of a single witness.[3]  In my view, the magistrate erred in not concluding that more than sufficient evidential basis had been laid which justified the importation of the cautionary rule.  That he did not do so is clear from the wording of his judgment, in which no reference is made to any manner of reasoning around the obvious and material contradictions in the complainant’s evidence. 

[10] In my view, the effect of the material contradictions in the complainant’s evidence is to diminish significantly the evidential value of the complainant as a witness.  It cannot be said that his evidence was satisfactory in all material respects.  It is worthy of mention that the trial court decided that two additional witnesses should be subpoenaed because the magistrate was of the belief that their evidence was essential to the achievement of a just decision.  It would appear that notwithstanding a number of remands to enable these witnesses to be found, no additional evidence was forthcoming.  Nothing finds expression in the judgment of the court a quo to indicate why, notwithstanding this deficiency, the magistrate was able to conclude that the guilt of the appellant had been proved beyond a reasonable doubt.  In my view, as the evidence of the complainant is the only evidence upon which the conviction relies, it follows that the conviction cannot stand.

[11] I am also of the view that, in these circumstances, the magistrate erred in rejecting the appellant’s evidence as not being reasonably possibly true. 

[12] I would propose the following order:

1.        The appeal succeeds;

2.         The conviction and sentence imposed by the magistrate are set aside.”

___________________

R.W.N. BROOKS

JUDGE OF THE HIGH COURT (ACTING)



MJALI J:

I agree, it is so ordered,

_______________________

G.N.Z. MJALI

JUDGE OF THE HIGH COURT

Appearing on behalf of Appellant:

Instructed by:

 

Appearing on behalf of Respondent:

Instructed by: 


[1] R v Mokoena 1956 (3) SA 81 (A) at 85, 86

S v Dyira 2010 (1) SACR 78 ECG para [6]

[2] S v J 1998 (2) SA 984 (SCA)

S v M 1999 (2) SACR 548 (SCA)

[3][3] S v Avon Bottlestore (Pty) Ltd and Others 1963 (2) SA 389 (A)