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[2020] ZAECGHC 37
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de Vos v S (CA&R296/2019) [2020] ZAECGHC 37 (12 May 2020)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No: CA & R 296/2019
Date of Appeal: 6 May 2020
Date of Judgment: 12 May 2020
NOT REPORTABLE
In the matter between:
DEWALD DE VOS Appellant
AND
THE STATE Respondent
JUDGMENT
Goosen J
[1] The appellant was convicted in the Magistrates’ Court at Port Alfred of assault with intent to do grievous bodily harm. He was sentenced to a fine of R3000.00 or 9 months’ imprisonment of which R1000.00 or 3 months’ imprisonment was suspended for a period of 3 years conditionally. He appeals against the conviction.
[2] In Heads of Argument filed on behalf of the State counsel for the State concedes the appeal on the ground that material contradictions in the evidence of witnesses of the State render such evidence unreliable. It is submitted that on this basis the magistrate erred in the conviction of the appellant.
[3] The concession made by the State is properly made. A perusal of the appeal record and the grounds of appeal advanced by the appellant indicate that there were indeed significant and material discrepancies in the evidence presented by the State.
[4] The appellant was charged with assault with intent to do grievous bodily harm,
“In that upon or about and at or near Campbell Street in the district of Bathurst the accused did unlawfully and intentionally assault Raoul Coetzee by kicking him with booted feet and hitting him with fists with the intent of causing him grievous bodily harm.”
[5] To this charge the appellant pleaded not guilty. He proffered a plea explanation which was that,
“(T)he accused will deny kicking the complainant and he will say that in respect of the punching he acted in self-defence.”
[6] At trial, therefore, the State was required to prove, beyond a reasonable doubt, that the appellant did not act in self-defence in punching the complainant or that he exceeded the bounds of self-defence. It was also required to prove that the appellant kicked the complainant.
[7] The complainant’s evidence was that he and his son were at Kenny’s Sports Bar on the night in question. His son, John Coetzee, was asleep in his vehicle. The accused arrived at Kenny’s. He conceded that there was “bad-blood” between them and that certain threatening and derogatory text messages had been sent to the appellant’s phone. It appears from the evidence that the complainant and appellant are involved in rival accident-recovery and towing businesses. An altercation ensued between the complainant and appellant in which strong language was used. At a point when they were both near the appellant’s vehicle a physical scuffle broke out. According to the complainant his jersey was pulled over his head. He grabbed the appellant around the neck. One or two fist blows were landed in his face. He said that he cannot recall what happened thereafter. He apparently lost consciousness and only regained it when the police were on the scene.
[8] It appears from the medical evidence that the complainant suffered severe injuries to his face. Seven teeth were knocked out and he suffered numerous facial abrasions and contusions.
[9] The complainant was confronted with a statement he had made to the police after the incident. In it he states that the appellant kicked him in the face when he was on the ground. He conceded, however, that his son had told him that the appellant had kicked him. He also conceded that he had used his keys to stab at the appellant’s face when they were struggling. It was then that he was struck in the face.
[10] The complainant’s son, John Coetzee, testified that he did not see how the fight had started. He, however, claimed that he saw the appellant on top of the complainant on the ground beating him with fists. He stated that one Aymen had kicked his father “three or four, or maybe five times”. He could not explain what was said to the complainant about who had kicked him. He could also not explain why he had made no mention to the police that Aymen had kicked the complainant. Two other witnesses were called by the prosecution, namely Dylan Bough and Divan Daniels. These witnesses contradicted each other. Bough initially said that they were in the pub and went outside when they heard a commotion. Later he claimed that he and Daniels saw the appellant and complainant arguing before the fight ensued. Daniels said the fight had already started when they went outside. Both, however, had stated that this had occurred shortly after they arrived at the bar somewhere around 8 p.m. The objective evidence suggests the fight had occurred close to midnight.
[11] Both Bough and Daniels, however, confirmed that Aymen kicked the complainant at a stage when the appellant had walked away from the fight, thus contradicting John Coetzee’s evidence.
[12] The magistrate does not address these discrepancies nor the consequences of the different versions, save to characterize them as minor in the content of explaining why an application for discharge was refused. The judgment does not deal with an assessment of the credibility of the witnesses or the reliability of the evidence.
[13] To compound matters, insofar as assessment of the evidence is concerned, no reasons are furnished as to the basis upon which the evidence of the appellant was rejected. This, despite the fact that the evidence tendered by the State corroborates his account of what occurred. It was his evidence that he landed two or three fist blows to the complainant in response to the complainant stabbing at his face with keys. He did not kick the complainant. He walked away when the complainant had fallen to the ground.
[14] The failure to address the question as to whether the appellant’s version was reasonably possibly true appears to have been informed by still further misdirections committed by the magistrate. The magistrate expressed the view that:
“. . . one acts in self-defence when one’s life is in danger and there is no other way that one could have avoided the danger except fighting.
[15] The magistrate then reasoned that since the appellant had gone to the bar to confront the complainant and that the complainant had “tried to walk away”, the appellant was not in danger.
[16] Not only are the principles applicable to self-defence misstated, the magistrate accepts that the complainant “walked away” when his own evidence was that he had walked after the appellant to the appellant’s vehicle which was on the opposite side of the road to his vehicle.
[17] The magistrate then further erred by holding that the accused bore an “onus . . . to give an explanation which is reasonably possibly true.” This is a very serious misdirection. An accused bears no such onus.
[18] In S v Rossouw[1] it was held:
“It is trite that there is no onus on an accused in a criminal case and that the State had to prove the guilt of the appellant beyond reasonable doubt. This includes that the State had to prove that the appellant had not acted in self-defence and, if she had defended herself against an attack by the deceased, that she had exceeded the legitimate bounds of self-defence.”
[19] In this instance, upon the complainant’s own evidence he had attempted to stab the appellant in the face with keys. This coincides with the appellant’s evidence that this attack caused him to deliver blows to the complainant’s face after which he fell down.
[20] The magistrate repeatedly makes reference to the fact that the appellant went to the bar to confront the complainant. It is this fact, admitted by the appellant, that colours the ‘probabilities’ upon which the magistrate relied. The judgment records that:
“However, taking all the evidence in totality the court is of the view that this could have been avoided, the accused person before court was at home, he decided to go and approach the complainant, even when he got to the complainant, the complainant did not attack him from his side. He was the one who went to the complainant and the version given before this court, it is not clear as to how the fight ensued. And the injuries sustained by the complainant on the day in question clearly shows that the person who was assaulting him had the intentions to cause grievous bodily harm.” (sic)
[21] It appears to have escaped the magistrate that the severe injuries were no doubt inflicted when the complainant was kicked by a person other than the appellant.
[22] As noted in S v Shusha[2]:
“The magistrate appears to have rejected the appellant’s version on the basis that it was improbable. This was a fatal misdirection. It is trite that in criminal matters the State must prove its case beyond reasonable doubt. An accused’s version can only be rejected if the court is satisfied that it is false beyond reasonable doubt. An accused is entitled to an acquittal if there is a reasonable possibility that his or her version may be true.”
[23] For the reasons set out above the conviction of the appellant is tainted by serious misdirection. An appraisal of the evidence before the magistrate suggests that there is no basis to reject the appellant’s version as false. In the circumstances the magistrate ought to have found that his version is reasonably possibly true and therefore, that the State had failed to prove his guilt beyond reasonable doubt.
[24] In the result the following order will issue:
1. The appeal is upheld.
2. The magistrate’s order is set aside and replaced with the following:
“The accused is acquitted and discharged.”
________________________
G. G. GOOSEN
JUDGE OF THE HIGH COURT
Pakati J
I agree.
_________________________
B. PAKATI
JUDGE OF THE HIGH COURT
Appearances:
For the Appellant: Mr J. Bezuidenhout
Mc Callum Attorneys
For the Respondent: Adv. H. Obermeyer
Director of Public Prosecutions
Grahamstown
[1] 2018 (1) SACR 179 (NC) at par [3]
[2] [(609/10) [2011] ZASCA 171 (2 September 2011) at par [9]]