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　　NOT

　　REPORTABLE

　　NORTH

　　GAUTENG HIGH COURT, PRETORIA

　　CASE

　　NO: A 1068/2009

　　DATE:23/08/2012

　　In

　　the matter between:

　　CARL

　　MARTIN FREDERICK

　　EHRKE............................................................................Appellant

　　and

　　THE

　　STATE........................................................................................................................Respondent

　　JUDGMENT

　　MSIMEKI,

　　J

　　INTRODUCTION

　　[1]

　　The Appellant stood trial on one account of assault and another of

　　pointing a firearm. The Piet Retief magistrates court convicted

　　the

　　Appellant on count one (1) which was the assault charge and acquitted

　　him on count 2 the pointing of a firearm charge. The

　　Appellant was

　　sentenced to a fine of R3000-00 (Three Thousand Rand) or Six (6)

　　months imprisonment half of which was suspended

　　for a period of three

　　(3) years on condition that the Appellant is not convicted of assault

　　committed during the period of suspension.

　　The Appellant in terms of

　　Section 103 of Act 60 of 2000 was not declared unfit to posses a

　　firearm.

　　[2]

　　The Appellant was duly represented during the proceedings in the

　　court a quo.

　　[3]

　　On 8 October 2009, the Appellant, on petition, was granted leave to

　　appeal against his conviction of assault. The appeal, is

　　accordingly,

　　directed against conviction only.

　　[4]

　　The Appellant, when the appeal was argued,was represented by Ms M

　　Barnard while Ms Z G Mshololo represented the Respondent.

　　[5]

　　The matter was argued before myself and my Sister Molamu J. My

　　sister, unfortunately, passed on before the judgment could be

　　delivered or handed down. She, however, before passing, on had agreed

　　with my views which form this judgment. This is therefore

　　our

　　judgment. The parties, too, are ad idem that I write this judgment.

　　THE

　　APPELLANT'S PLEA

　　[6]

　　The Appellant, in the court a quo, chose to give an extensive written

　　plea explanation in terms of Section 115 of the Criminal

　　Procedure

　　Act 51 of 1977. (the "CPA")

　　[7]

　　THE CHARGES

　　1.

　　COUNT 1

　　The

　　State in this count alleged that the Appellant on or about 12 October

　　2007 and at or near Mkhabela area, Piet Retief, in the

　　district of

　　Piet Retief, had unlawfully and intentionally assaulted Madwayi

　　Jeremia Mkhonza by hitting him with a fist kicking

　　him, strangling

　　him and using a stone to assault him. Although the Section 115

　　statement had been based on assault with intent

　　to do Grievous Bodily

　　Harm (GBH) the defence at the commencement of the trial was duly

　　informed that the charge was, indeed, assault.

　　2.

　　COUNT 2

　　The

　　State in this count had alleged that the Appellant had contravened

　　the provisions of Section 120 (6) (a) read with Sections

　　1, 103, 120

　　(1) (a), Section 121 read with Schedule 4 and of the

　　-

　　pointing

　　of a fire-arm, an antique firearm or airgun in that he, at the same

　　place time and date, had unlawfully pointed a firearm

　　or an antique

　　firearm or an airgun whether or not it was loaded or capable of being

　　discharged, to wit a handgun of an unknown

　　make and calibre at

　　Madwayi Jeremia Mkhoza without good reason to do so.

　　[8]

　　THE APPELLANT'S PLEA

　　The

　　Appellant, in the court a quo, and in terms of of the

　　chose to disclose the basis of his

　　defence by proffering an extensive statement. The plea explanation

　　disclosed that he, on the

　　day in question, had caught the complainant

　　and Mr Mabondwe Josiah Masondo (" Masondo") red handed

　　while they were unlawfully

　　removing his property from his farm. The

　　Appellant and the complainant then got involved in a heated argument.

　　The complainant's

　　hands were lowered down towards his pockets and he

　　immediately thought that the complainant had been reaching for his

　　pockets to

　　remove something therefrom. The Appellant got the

　　impression that the complainant had wanted to take out a weapon which

　　he would

　　use to attack him with. He believed that his life and person

　　had been in danger. He kicked (gestamp) the Complainant with his

　　right

　　foot and the Complainant, in the process of retreating, lost

　　his balance and fell into a ditch or furrow. He got on top of the

　　Complainant and tried to get his hands under control in order to

　　search him and to disarm him. No weapon was found on the Complainant.

　　He, after this, realised that the Complainant possibly had not wanted

　　to attack him after all. He, thereafter, stopped the truck

　　which the

　　Complainant and Masondo had been using on their way home and

　　apologised to the Complainant for the incident. It is the

　　Appellant's

　　contention that that he defended himself when he attacked the

　　Complainant.

　　[9]THE

　　STATE'S VERSION

　　The

　　State's version is that the Complainant who had been in the company

　　of Masondo had been sent by Mr Andre Juan Rossouw ("Rossouw"),

　　his employer at the time, to go and fetch the articles which Rossouw

　　had purchased from the Appellant. The first load was taken

　　on a

　　Friday while the other loads were to be taken on the day in question.

　　There is a difference in the evidence of Complainant

　　and Masondo

　　regarding the number of loads that were removed from the Appellant's

　　farm. This, however, is neither here nor there.

　　The Complainant

　　testified that the Appellant found them loading the articles onto the

　　truck. He accused them of stealing his articles

　　and assaulted the

　　Complainant. Masondo, according to evidence, appears only to have

　　been touched when the Appellant tried to kick

　　him while he was on top

　　of the truck busy loading the stuff. The Complainant testified that

　　when he fell to ground the Appellant

　　kicked him. He went on

　　assaulting him while he was on the ground until the Appellant's phone

　　rang. He then managed to move for

　　a distance to a place where the

　　Appellant again assaulted him. A stone or a brick was also used to

　　hit his hands which, at the

　　time, were outstretched. A white man in

　　the company of another man arrived and it was only then that the

　　assault stopped. The Appellant

　　ordered them to offload the bricks,

　　corrugated iron and sawmill equipment that they had loaded onto the

　　truck. They did and then

　　drove to Rossouw who, at the time, was

　　having a party. He explained to Rossouw that the Appellant had

　　assaulted him and Rossouw

　　suggested that the Complainant be taken to

　　a doctor. Masondo took him to Dr Sibeko who examined him and

　　completed the J88. The

　　State called the Complainant, Masondo, Dr

　　Sibeko and Rossouw in support of its case while the Appellant called

　　Dr J V Z Kotze as

　　his witness.

　　[10]

　　Ms Barnard submitted that:

　　1.

　　The court a quo, faced with two mutually destructive versions ought

　　to have considered the credibility of the witnesses and the

　　probabilities of their evidence.

　　2.

　　There are serious and material contradictions, inconsistencies, and

　　improbabilities in the State's version which rendered the

　　version

　　weak.

　　3.

　　Masondo's and the Complainant's versions were so different that they

　　could not be reconciled with each other.

　　4.

　　Rossouw's version was in no way helpful to the State.

　　5.

　　Dr Sibeko's evidence, seen in the light of the J88 which he completed

　　in respect of the Complainant, was vague. The incomplete

　　J88 and the

　　evidence, according to him, did not support the Complainant's version

　　of the assault.

　　6.

　　The Appellant's version, in the light of Rossouw's and Dr Kotze's

　　evidence, is reasonably possible and supports his version that

　　he

　　acted in putative self-defence.

　　7.

　　A distinction should be drawn between unlawfulness and putative

　　self-defence which relates to culpability and that in the process

　　of

　　doing so it will become evident that the Appellant had acted in

　　self-defence.

　　8.

　　The court a quo had erred when it found that the Sate's version had

　　been credible, reliable and correct while the version had

　　consisted

　　of different versions relating to the incident. The witnesses,

　　according to Ms Barnard, had not been good and reliable

　　as, according

　　to her, they contradicted themselves and each other in material

　　respects.

　　[11]

　　Ms Mshololo submitted on the other hand that:

　　1.

　　The Appellant's conduct did not constitute private defence but a

　　clear attack on the complainant.

　　2.

　　the differences in the evidence of the Complainant and Masondo

　　related only to the sequence of events and that they were in no

　　way

　　material. The submission appears to be correct as it will later be

　　shown.

　　3.

　　the court a quo had to do with a moving scene where people could make

　　honest mistakes as to the sequence of events. This submission

　　is

　　again correct.

　　[12]

　　PRINCIPLES

　　PRIVATE

　　DEFENCE

　　"

　　The use of force which would ordinarily be criminal is justified if

　　it is necessary to repel an unlawful invasion of person,

　　property or

　　other legal interest Since the right to use force in these

　　circumstances not only goes beyond the defence of life and

　　limb but

　　also extends to the protection of a third party, the term

　　'self-defence' is too narrow and private defence1 is preferred."

　　(South African Criminal Law and Procedure, Vol t- General Principles:

　　Burchell and Hunt Second Edition P 322.)

　　The

　　requirements of private defence are that:

　　1.

　　there must be an unlawful attack

　　2.

　　upon a legal interest

　　3.

　　the attack must have commenced or must be imminent

　　The

　　defence must be:

　　1.

　　directed against the attacker

　　2.

　　necessary to avert the attack.

　　3.

　　one where reasonable means are used to avert the attack. However, in

　　Ex parte Minister of Justice: In re S v Van Wyk (A)

　　Steyn CJ, as he then was, disapproved of the test of proportional

　　retribution as the yard stick.

　　[13]

　　The questions that the court need to answer are:

　　1.

　　whether the Appellant acted in self-defence real or putative.

　　2.

　　whether the contradictions or inconsistencies in the State's case are

　　such as to vitiate the conviction

　　3.

　　whether the evidence that the State tendered is enough to sustain a

　　conviction of assault.

　　[14]

　　It is the defence's contention that the value of the evidence that

　　the State tendered is such that the Appellant was, at the

　　close of

　　the State's prosecution or case, entitled to a discharge in terms of

　　of the . The court is,

　　on that basis, asked to set aside the Appellant's conviction.

　　[15]

　　It is, on behalf of the Appellant, further submitted that in the

　　event that the court finds that the State has established

　　a prima

　　facie case, then and that event, the court should enquire whether the

　　Appellant's version is not reasonably possible and

　　whether the

　　Appellant did not act in self - defence. It is, on behalf of the

　　Appellant, further argued that the court a quo ought

　　to have inquired

　　if the Appellant's conduct had been lawful or unlawful. This, the

　　court a quo, appears to have done.

　　[16]

　　It was further submitted that the court a quo had never indicated

　　that the Appellant's version had not been reasonably possibly

　　true

　　and that the court had, therefore, erred when it found that the

　　Appellant had not acted in putative self - defence.

　　[17]

　　COMMON CAUSE FACTS

　　These

　　are that:

　　1.

　　the Appellant is the owner of the farm Driehoek which is

　　approximately 26 kilometres from Piet Retief.

　　2.

　　The Appellant, during September 2007, sold sawmill equipment to

　　Rossouw and the Els brothers

　　3.

　　The purchasers' employees started removing the equipment in October

　　2007.

　　4.

　　On 12 October 2007 the Complainant and Masondo went to the

　　Appellants' farm to remove the articles that Rossouw had purchased.

　　5.

　　The Appellant found the Complainant and Masondo having loaded the

　　equipment, corrugated irons and bricks.

　　6.

　　The loaded stuff was off loaded.

　　7.

　　Masondo being the driver of the truck and the Complainant then

　　proceeded to Rossouw's place.

　　8.

　　Rossouw who observed the Complainant as having been injured suggested

　　that the complainant be seen by a doctor.

　　9.

　　The Complainant was examined by Dr Mandla Ayisi Moses Sibeko ("Dr

　　Sibeko")

　　10.The

　　Complainant, at the instance of the defence, was also seen by Dr

　　Johannes Van Zyl Kotze.

　　11.

　　Dr Sibeko observed that the Complainant had pre-existing diseases -

　　Gout arthritis which was also observed by Dr Kotze.

　　[18]

　　APPROACH OF THE APPEAL COURTS IN DEALING WITH MATTERS ON APPEAL

　　1.

　　The appeal court is reluctant to upset the findings of the trial

　　court. This is because the trial court has advantages which

　　the

　　appeal court does not have in seeing and hearing the witnesses and

　　being in the atmosphere of the trial. The trial court has

　　the

　　advantage of obserserving the demeanour, appearances and the

　　personality of the witnesses.

　　2.

　　In the absence of misdirection on fact by the trial court the

　　presumption is that the trial court 's conclusion is correct and

　　the

　　appeal court will only reverse the conclusion when it is convinced

　　that such conclusion is wrong. (See R v Dhlumayo and Another

　　1948(2)

　　SA 677 (A).

　　3.

　　In Koopman v S ALL SA (1) 2005 (SCA) at 539:

　　Headnote: the following is said

　　"

　　In the absence of demonstrable and material misdirection by the trial

　　court it findings of fact are presumed to be correct

　　and will only be

　　disregarded if the recorded evidence shows them to be clearly wrong"

　　(See

　　also Sv Mkohle (A) at 100e-f and Sv Ntsele

　　1998(2)SACR178 (HHA) at 179)

　　[19]

　　Reverting to the facts of the case the Appellant in his plea

　　explanation contended that he and the Complainant were involved

　　in a

　　heated argument. The Appellant failed to explain what was said in the

　　heated argument except to say that he wanted to know

　　why they were

　　loading his stuff onto the truck and that the Complainant had

　　informed him that he had been sent by Rossouw to fetch

　　the articles

　　from his farm. There is nothing to show that the Complainant could

　　have lost his temper. There was nothing which could

　　have led to that

　　conclusion as the Complainant clearly pointed out that they had been

　　sent there by Rossouw. Even if the Appellant

　　accused them of stealing

　　his articles, nothing from the version of the Appellant, warranted "

　　a heated argument." The

　　Complainant, according to the

　　Appellant's version, had every reason to be on his farm. Indeed,

　　nothing demonstrated that the Complainant

　　was angry or could have,

　　been, angry. In any case, nothing on the version of the Appellant,

　　warranted that. This, the Appellant

　　failed to show in his evidence.

　　There was, therefore, no reason for the Complainant to move his hands

　　downwards towards his pockets.

　　It is highly improbable that the

　　Complainant would have behaved like that in the circumstances of this

　　case. Indeed the Complainant

　　and Masondo denied that the Complainant

　　had lowered his hands to his pockets as if he was to take out a

　　weapon or something with

　　which he could have attacked the Appellant.

　　The Complainant, according to the Appellant, had no weapon in his

　　pocket. This makes

　　it perfectly clear that the Complainant could not

　　have behaved as the Appellant contended. There was no reason for him

　　to do that.

　　The Appellant, as Ms Mshololo correctly submitted, simply

　　attacked the Complainant who had done nothing to justify the conduct

　　of the Appellant.

　　[20]

　　Ms Barnard submitted that the Complainant and Masondo contradicted

　　each other and that their evidence was full of inconsistencies

　　and

　　improbabilities to an extent that the court a quo ought to have

　　discharged the Appellant in terms of of the

　　. This, in the light of the evidence that

　　State tendered cannot be correct. In S v Mkhohle (supra) the court at

　　95 said: "contradictions

　　per se do not lead to rejection of

　　witness' evidence-not every error made by witness affects his

　　credibility - Trier of facts has

　　to make an evaluation, taking into

　　account the contradictions, their number and importance and bearing

　　on other parts of his evidence."

　　It

　　is also significant to note that at the end of everything when the

　　merits and demerits of evidence have been considered, regard

　　having

　　been had to the shortcomings or defects or contradictions in the

　　evidence, the question has to be asked whether the truth

　　has been

　　told.

　　[21]

　　Ms Barnard submitted that the value of the State case was drastically

　　reduced by the contradictions and inconsistencies in

　　the evidence of

　　the Complainant and Masondo. Ms Mshololo on the other hand submitted

　　that the contradictions were immaterial and

　　only had something to do

　　with the sequence of events. The scene, according to her, had been

　　moving and allowed room for honest

　　mistakes as to the sequence of

　　events. The submission indeed has merit. The question at the end of

　　the day is whether the Complainant

　　was assaulted. Notwithstanding the

　　defects and shortcomings in the evidence of the Complainant and

　　Masondo, it is clear that the

　　truth has been told. The evidence of

　　the Complainant in the main is corroborated by that of Masondo.

　　[22]

　　Rossouw, too, corroborates the evidence of Masondo and the

　　Complainant. He saw the Complainant after the incident. According

　　to

　　him, the complainant looked injured. The complaint was that the

　　Appellant had assaulted him. The Complainant kept according

　　to him,

　　kept on complaining about the injuries walking in a funny way and

　　crying a lot. He ion his owm, could hardly stand up properly

　　and that

　　led Rossouw to assume that the Complainant had been in deep pain.

　　Rossouw

　　conceded that he possibly had not properly given the description of

　　the articles that the Complainant and Masondo had to

　　fetch. He

　　further conceded that he should have made sure that what had been

　　purchased was correctly identified.

　　[23]

　　Dr Sibeko's evidence, although severely criticised by Ms Barnard,

　　remained helpful. The J88 form was incomplete in certain

　　respects.

　　This, however, did not render his evidence and the J88 useless. He,

　　indeed, examined the Complainant on the day of the

　　incident and

　　observed fresh injuries. He was honest enough to disclose that the

　　Complainant had pre-existing disease in the form

　　of "gout

　　arthritis". Some of the injuries that he observed had been on

　　top of those pre-existing conditions. According

　　to him, the

　　Complainant's upper lip was swollen. The inner side thereof had a

　　small laceration. Dr Kotze, answering a question

　　by the court,

　　admitted that if there had been some swelling on top of the

　　abnormalities those would have disappeared by the time

　　he examined

　　the Complaint. It will be remembered that he examined the Complainant

　　almost a year after the incident. Although the

　　J88 that Dr Sibeko

　　completed is, indeed, incomplete that in no way means that the J88

　　should be disregarded. This is so because

　　there are aspects on which

　　the two doctors agree. Dr Sibeko made the necessary concessions where

　　he made mistake and gave acceptable

　　and understandable explanations

　　for that. The criticism that Dr Kotze levelled at the J88 that Dr

　　Sibeko completed is in some respects

　　understandable while in other

　　not. He is, indeed, not entirely right when he says that the J88 does

　　not support the version of

　　the Complainant on the aspect of the

　　assault. The J88, in my view , does support the evidence that the

　　Complainant was, indeed,

　　injured on the day of the incident. His

　　evidence that he was assaulted is supported by Masondo while Rossouw

　　confirms that the

　　Complainant appeared injured, in deep pain, and

　　always complaining and literally crying.

　　[24]

　　Dr Kotze complained about the J88 which, according to him, was not

　　readable, understandable and did not give a good summary

　　of the

　　Complainant's injuries. With its problems as shown above, the J88, in

　　my view, remains helpful. Dr Sibeko examined the Complainant

　　on the

　　day of the incident. He has shown the injuries which he observed

　　which, in my view, support the evidence of the Complainant.

　　Dr Kotze,

　　when cross examined by the State Prosecutor, was unable to answer

　　questions directly. He would in certain instances give

　　unsatisfactory

　　answers. He, for instance, could not give a satisfactory answer when

　　asked if he could deny or confirm what Dr Sibeko

　　observed during his

　　examination of the Complainant. The question whether he could confirm

　　or deny that he had examined the Complainant

　　almost a year after the

　　incident remained unanswered. He also could not deny that the

　　Complainant had suffered bodily injuries.

　　[25]

　　The question which the court must also ask itself is whether one can

　　find fault with the court a quo's findings of fact. The

　　court's

　　findings of fact are as shown above, presumed to be correct and will

　　only be disregarded if the recorded evidence shows

　　them to be clearly

　　wrong. I have given proper consideration to the matter and have found

　　no demonstrable and material misdirection

　　by the court a quo.

　　[26]

　　Evidence clearly demonstrates that the court a quo gave proper

　　consideration to the matter too. The Appellant failed to bring

　　out

　　detailed account of the heated argument that is said to have

　　preceeded the kicking of the Complainant by the Appellant. The

　　Appellant, on his own version, admitted kicking the Complainant but

　　added that that occurred when he thought that the Complainant

　　was

　　reaching for his pockets to produce a weapon which could have been

　　used to attack him, Evidence has demonstrated that the Complainant

　　never lowered his hands towards his pockets. This at any rate, was

　　denied by both the Complainant and Masondo. The Complainant

　　never

　　attacked the Appellant. There was no need for the Appellant to defend

　　himself. The Appellant merely attacked the Complainant

　　because, as he

　　put it, the Complainant and Masondo were stealing his articles inter

　　alia his corrugated iron and his bricks. He

　　obviously, was angry. The

　　court a quo asked the Appellant why he could not involve the police

　　or Rossouw instead of handling the

　　matter in the manner that he did.

　　His response thereto was never satisfactory. Indeed, it was not

　　necessary for the Appellant to

　　have behaved in the manner that he

　　did.

　　[27]

　　It is, in the light the evidence, not correct that the court a quo

　　ought to have discharged the Appellant at the end of the

　　State's

　　case. Evidence, at the time, was overwhelming and

　　called for a

　　response from the Appellant.

　　[28]

　　The overwhelming evidence, indeed, proved the guilt of the Appellant

　　beyond reasonable doubt. The Appellant's version was not

　　and is not

　　reasonably possibly true and was, in my view, correctly rejected by

　　the court a quo . The appeal against conviction,

　　my view, should

　　fail.

　　[29]

　　I, in the result, make the following order: The appeal against

　　conviction is dismissed.

　　MSIMEKI

　　J

　　JUDGE0F

　　THE HIGH COURT

　　Counsel

　　for appellant: Adv M Barnard

　　jCounsel

　　for respondent: Adv Z G Mshololo

　　Attorneys

　　for appellant:Van Wyk & Ayre Attorneys, Notaries &

　　Conveyancers

　　Attorneys

　　for respondent: StatexAttorney, Pretoria

　　Date heard:19 April 2011

　　Date

　　of judgment:23 August 2012