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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION – GRAHAMSTOWN

                               

                                                         Case No.:  CA&R 92/2018

 

In the matter between:

 

PIET PIETERSE                                                                           Appellant

           

And

 

THE STATE                                                                                  Respondent

 

JUDGMENT

REVELAS J:

Introduction:

1.      The appellant was charged in the Regional Court, Willowmore, with attempted murder (count one), assault with the intention to do grievous bodily harm (count two) and malicious damage to property (count three).  Despite his plea of not guilty, the appellant was convicted as charged.  On count one he was sentenced to serve a term of seven years’ imprisonment. Counts two and three were treated as one count for purposes of sentence and the appellant was sentenced to serve a term of three years’ imprisonment in respect of these two counts.  The sentences were ordered to run concurrently. With leave of this court on petition, the appellant appeals against his convictions only.

2.      Four persons testified in the trial court about the events of 4 August 2017.  There were three witnesses for the State: The first was Hannes Afrika (the complainant in count one), Serenice Meintjies (the girlfriend of the appellant and also the complainant in counts two and three) was the second, and Adam Meintjies (the father of Serenice), was the third State witness.  The appellant was the only witness who testified in support of his defence.

3.      The State witnesses will be referred to once by their first names and surnames and thereafter only by their first names.  The events that gave rise to the charges levelled against the accused emerged mainly from the testimonies of Hannes Afrika and Serenice Meintjies.

4.      It was common cause that on the night of 4 August 2017 Hannes Afrika was visiting at the home of Adam Meintjies, where Serenice (the latter’s daughter), and her mother (Adam’s wife) also lived. At some point in the evening the appellant arrived at the Meintjies’ home and there was an altercation between Hannes and the appellant, during which Hannes was stabbed by the appellant.

5.      According to Hannes, he and Adam were sitting on a bench in the kitchen drinking. Marie Meintjies (the mother of Serenice), was also in the house. Hannes testified that although he had been drinking that evening, he was not inebriated.  He said that he shared a 5 litre box of wine with his cousin and Adam.  By the time the appellant arrived at the house, the cousin had already left.  Shortly after the appellant arrived, he accused Hannes of sleeping with Serenice.  Hannes testified that his denial of this accusation did not placate the appellant.  An argument ensued and the appellant then stabbed Hannes with the knife that he had brought with him. Adam, who had admitted to being very drunk, recalled no argument preceding the stabbing.  According to him, the appellant simply approached Hannes and stabbed him.

6.      The appellant’s version of events was that on his arrival, Hannes  was not sitting on the bench with Adam.  He said both Marie and Adam had passed out from all the liquor they had consumed that evening. He testified that Hannes was lying on a mattress in the kitchen of the Meintjies’ home when he arrived.  According to appellant, he and Serenice would usually sleep on that mattress together and that was the plan for that evening as well. According to Hannes, this the aforesaid was not a permanent arrangement since the appellant actually lived with him and his niece and sometimes went to sleep with Serenice. Hannes denied that the bed was made up on the floor the night in question.  The appellant insisted that on the night in question the bed had been made up on the floor for himself and Serenice, an allegation denied by Serenice.

7.      The appellant’s further testimony was that he had asked Hannes to get off the bed, which the latter did, and e walked towards the door as if to leave. However, near the kitchen door Hannes suddenly stopped to pick up an axe which was standing next to the kitchen basin.  He then turned around and began to attack the appellant with the axe.

8.      The appellant told the court a quo, that Hannes had aimed a blow at him with the axe but missed.  At the same time the appellant slipped and fell on the mattress from which Hannes had just arisen.  Fortunately for him, right there on the mattress, was Hannes’ knife which he grabbed to defend himself.  When Hannes aimed the second blow at him with the axe, he was able to defend himself by stabbing Hannes.

9.      Hannes denied all of the aforesaid and reiterated that the appellant had entered the house with his own “open knife” and that there had been no bed on the floor and that Adam was with him on the bench and not sleeping.  Hannes testified that as a result of his injury he was admitted to a local hospital and later transferred to Graaff Reinet. It was not in dispute that he sustained a life threatening injury.

10.    Serenice, the complainant in counts two and three, testified   that on the same evening (4 August 2017) she went to Kanna’s house where she had a beer with Hannes.  Thereafter she went home, and on the way she met the appellant and they walked to her house together. Serenice disputed that she made up a bed for her and the appellant that evening. At her house, but whilst still outside, she informed the appellant that she had “missed her period” meaning she was possibly pregnant.  She said the appellant did not respond to this news. The appellant denied that she had told him anything of the kind. Serenice said she went into her home, but soon left again and proceeded to the house of someone referred to as Bacon. At this house the appellant approached her. Serenice’s description of the appellant’s mood at the time was that he was belligerent. He then proceeded to assault her beating her with an iron wire, leaving welts and bruises on her body.  She said he also sat on top of her and he took out his knife.  Two women, Trudy and Nicky, warned her that the appellant had a knife. She managed to move away when the appellant aimed his knife at her to stab her.  She also testified that the appellant had cut open her shirt with his knife during the assault.  The appellant demanded to know why she had slept with Hannes on their bed (the mattress on the kitchen floor). She denied that she did. 

11.    Serenice further testified that she and the appellant both left Bacon’s house and went to her parental home.  There they found Hannes and her father (Adam) sitting in the kitchen.  She said that while she was in her bedroom, she heard Hannes say:  “Ouch! You stabbed me!”

12.    According to Serenice, the appellant assaulted her once again at her parental home. During the assault her face hit the wall of the house and as a result her nose and lip were injured and started to bleed.  Thereafter the appellant hit her with a belt and the buckle of the belt struck her behind the ear.  She said that she still has hearing difficulties in that particular ear. The charge sheet does not mention anything about a damaged ear or the appellant‘s attempt at stabbing Serenice. She also mentioned that the appellant had slapped her.  Serenice said that she managed to flee the house and when she went to the house of the neighbour (“Oom Manie”) the appellant followed her and asked her for forgiveness.

Discussion:

13.    The appellant’s defence that he stabbed Hannes to protect himself from axe blows was rejected by the regional magistrate.

14.    During the appeal, the cornerstone of the appellant’s defence of self-defence was that Hannes had stabbed him in the armpit which is consistent with, and also supports  the appellant’s version that he stabbed Hannes while Hannes had his arm raised above, wielding an axe, with the appellant half lying on the mattress and stabbing upwards in self-defence.  According to the medical evidence, Hannes received one stab wound to the posterior aspect of the axillar area on the left chest between the 3^rd and 4^th intercostal space. The medical officer who completed the medical examination report (Form J88) in respect of Hannes’ injuries was not called to testify.  The aforesaid proposition advanced by the appellant could not therefore not be tested or corroborated. It may very well be that the nature of the wound inflicted on Hannes is not inconsistent with an upwards stab from below into the armpit, but it is also not inconsistent with a stab from the side into the armpit, or from the back. None of these scenarios suggest that Hannes could only have sustained this injury if he had his arm raised above his head, with his axillar area exposed while wielding an axe.

15.    Even though all the witnesses were drunk to one extent or another, Hannes appears to have been the least drunk.  He conceded that he consumed alcohol.  If one has regard to his frank account of events in the court a quo, the magistrates’ observation that Hannes was an honest and credible witness, was not misdirected.  The appellant’s version that Hannes’ knife was fortuitously present on the mattress is most improbable.  It is highly unlikely that Hannes would attack Hannes with a weapon on the other side of the room, while having his own weapon right there with him on the mattress.

16.    Serenice’s account of the assault on her was a bit more problematic in that it contained certain shortcomings. I also bear in mind that Serenice, was also very drunk that evening. Adam, her father, said he never observed nor heard any assault perpetrated on Serenice that evening, despite the fact that it occurred at her parental home and that it was according to her, a very viscous assault. Adam testified that he was too drunk to remember anything. He did however, recall that Serenice showed him her injuries the following morning. The appellant, who denied assaulting Serenice, stated that her brother had assaulted her some time before the evening in question and that would explain the welts on her body. Adam said he saw the welts and they were fresh. The following day Serenice went to the local clinic for confirmation that she was pregnant. She testified that even the nurses at the clinic commented on her injuries. She sought no medical treatment for her injuries but her mother put some home-made unguent on her welts.

17.    In order to succeed in this appeal, the appellant has to convince us that by accepting the evidence of Serenice, the magistrate committed a misdirection. An appeal court’s powers to interfere with a trial court’s findings of fact are limited.^[1] Bearing in mind the advantage the court a quo had of seeing, hearing and appraising witnesses, this court should not lightly interfere with the trial court’s evaluation of the viva voce evidence^[2].

18.    The flaws in the State’s case in so far as Serenices’ evidence is concerned, are not fatal. All the evidence presented at the trial court must be weighed up and their cumulative effect considered. If one accepts the evidence of Hannes, that the appellant had accused him of sleeping with Serenice, in conjunction with Serenice’s news about her possible pregnancy, it is clear that the appellant was the only person who could have had a motive to assault and injure both complainants that evening. There was corroborative evidence that both of them had indeed sustained injuries that evening. On the appellant’s own version he had stabbed Hannes.  There was no evidence to suggest that someone other than the appellant had assaulted Serenice. She was a single witness with regard to the assault on her person by the appellant. However, there was also the corroborative evidence of Adam, regarding his own observations the following morning (when he had sobered up), of his daughter’s injuries and her report to him that the appellant had inflicted those injuries upon her. If all the evidence is weighed up cumulatively, the magistrate’s findings of fact are not misdirected.

19.    In the circumstances, and for the reasons outlined above, the following order is made:

1.      The appellant’s appeal against his three convictions (as charged), is dismissed.

 

E REVELAS

Judge of the High Court              

 

 

I concur:

 

V M NQUMSE

Acting Judge of the High Court

 

 

Appearances:

For the Appellant:  Ms N.M Mazibukwana, instructed by Justice Centre, Grahamstown

 

For the respondent:  Adv L.W Sinclair, instructed by National Director of Public Prosecutions

 

Date heard:       14 November 2018

Date delivered:  10 December 2018

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