S v Roberts

• Jurisdiction: South Africa
• Judge: Vivier JA, Howie JA and Mpati AJA
• Judgment Date: 03 September 1999
• Citation: 1999 (2) SACR 243 (SCA)
• Hearing Date: 19 August 1999
• Counsel: J P Spangenberg for the appellant J R Davidowitz for the State
• Court: Supreme Court of Appeal

Howie JA:

[1] The question in this appeal is whether irregularities which occurred in the course of the appellant's criminal trial after he had been found guilty vitiated not only the sentence but all the proceedings. C

[2] He was convicted in a magistrate's court of assault with intent to do grievous bodily harm and D sentenced to a fine and suspended imprisonment. By reason of alleged irregularities in the post-conviction proceedings and alleged misdirections in the judgment on conviction he took the matter to the High Court at Johannesburg on both review and appeal. The review application was dealt with and the appeal postponed. The relief sought on review was the setting aside of the E conviction and the sentence. The Court a quo (Van der Merwe J and Schwartzman J) found the alleged irregularities to have occurred. However, understanding the appellant's counsel to have conceded that they did not warrant the setting aside of the conviction, the Court focused its attention solely on their effect on sentence. It concluded that the sentence was indeed vitiated and ordered, inter alia, that the application directed at the conviction be dismissed, that the sentence be F set aside and that the matter be remitted for sentence afresh by a different magistrate. In seeking leave to appeal against this result the appellant contended that the Court below had erred in not finding the entire trial to have been vitiated. The leave application came before Heher J and Schwartzman J and was granted.

G [3] The material upon which the question in issue must be decided consists of the trial record and the affidavits comprising the review application. The relevant facts and circumstances which emerge are these. On the evening of 30 November 1994, and in the parking lot of a steakhouse in a Johannesburg suburb, two incidents occurred involving the appellant and the complainant. The H complainant was in the company of the lady who by the time of the trial had become his wife, and her sister. Having had their evening meal, they were on the point of leaving. The sister had come in her own car and before driving away she handed the complainant a hacksaw which she had borrowed from him earlier. As the three of them were standing conversing before departure, the appellant came out of the steakhouse where he was having supper and passed them on his way to I fetch cigarettes from his car. Whether he rushed rudely between them, as the complainant testified, or whether, as he himself said, he bumped into the complainant accidentally, one or other event triggered the first incident. Each man swore profusely at the other and a short while later the complainant hit the appellant with the hacksaw. According to the complainant he was standing with J the hacksaw

Howie JA

in his hand trying to get into his car to leave. The appellant came towards him and pushed his wife A out of the way. In frightened reaction he struck the appellant once on the shoulder with the back of the hacksaw. He denied the allegation put to him by the attorney then appearing for the appellant that he had struck the appellant multiple blows on the back and on his neck or that he had done anything to provoke the attack. B

[4] The other material witness for the prosecution was the complainant's wife. She testified that after the appellant pushed her aside he hit out at the complainant who retaliated by striking the appellant several times with the hacksaw. Both she and the complainant said that after being struck the appellant turned and ran away into the steakhouse. She denied the allegation put on his behalf C that while running away he had been chased by the complainant through the car park. It is therefore implicit in the prosecution evidence that the appellant was struck by the complainant from the front.

[5] The appellant's version of the first incident was that after the exchange of abuse he pushed the D complainant (not the wife) who reacted by striking him a blow with the hacksaw. The appellant turned and ran. The complainant then chased him around the parking area continuously hitting him from behind with the hacksaw. As a consequence he sustained numerous cuts to the back of his head and on his back and in support of this allegation he claimed to have a doctor's report E confirming the existence of such wounds. (As will appear presently there was indeed such a report available.) Eventually he eluded the complainant and ran into the steakhouse. There he met his uncle who was one of the family party with whom he was having supper and he reported to the uncle what had occurred.

[6] The second incident followed very shortly afterwards and it was this occurrence which was the F subject of the charge. The detail is unimportant for present purposes. It suffices to say that the appellant and the uncle went out and encountered the complainant in the car park. The latter was struck a number of fist blows and fell to the ground. The prosecution case was that the appellant and his uncle perpetrated this attack on the complainant and that while he lay on the ground they G persistently kicked him. The appellant's case was that he took no part in the assault. He said his uncle struck the complainant a number of fist blows but did nothing to complainant on the ground. It was not in dispute that as a result of the second incident the complainant had, by the time of the trial, lost the sight of his right eye, with only the uncertain prospect of possible surgical restoration. H

[7] The appellant's attorney did not call medical evidence to substantiate the existence of his alleged wounds. Instead he called the appellant's mother. She testified that on the following day she saw eight or nine cuts on his back and a bruise on one of his shoulders. I

[8] From this brief summary it will be apparent that the issue of guilt was essentially one of credibility. In resolving it the magistrate believed the complainant and his wife and rejected the appellant's evidence. Although in the normal course a review does not usually entail consideration of evidential detail or factual findings, it is nonetheless necessary in this particular instance, in order to provide the required J

Howie JA

A perspective for what follows, to refer, as I have done, to aspects of the evidence and also to point to some of the trial court's credibility conclusions. In the interests of maintaining a logical sequence it is appropriate to turn to those conclusions now.

[9] The magistrate referred in his summary of the facts to the appellant's and his mother's evidence B as to injuries on his head and back but failed to state whether he accepted it or, if he did, what significance he attached to it. However, his acceptance of the evidence of the complainant and his wife without reservation would seem to indicate that he disbelieved or at least disregarded the injury evidence. This despite the fact that the mother's testimony was not rejected and despite the C support which it afforded for the appellant's allegation that he was struck more than a few times and, what is more, struck from behind while being pursued by the complainant. Plainly, the injury evidence is inconsistent with the prosecution evidence and the latter cannot explain it.

[10] As regards the appellant's evidence the magistrate said that he

D '(gave) the impression . . . of a person who is very agile. He is fit. He does not sustain any kind of physical setbacks. He was quick spoken and very witty and he answered the questions asked by the prosecutor snappy and fast forward.'

[11] Making due allowance for the fact that English was not the magistrate's mother tongue and for E the inevitable pressures of delivering ex tempore judgments in the course of a busy day, it is nevertheless far from clear what this passage was intended to convey apart, perhaps, from the apparent finding that the appellant was conspicuously articulate. The appellant sought to establish that he did indeed suffer 'physical setbacks' during the first incident. Conceivably, however, the reference to agility was a preface to a later passage reading as follows (the reference being to the F first incident):

'(The complainant) being already agitated by the verbal abuse fight, surely at that stage would have encountered a fight to the extent that you would have had injuries to your face part or your body part but the injuries sustained according to you, and which were left were injuries to the back of your body.

G Being to the back of your body the court...