S v Schwartz

• Judge: Myburgh J and FS Steyn J
• Judgment Date: 24 May 1971
• Citation: 1971 (4) SA 30 (T)
• Hearing Date: 24 May 1971
• Court: Transvaal Provincial Division

F. S. Steyn, J.:

This appeal concerns a conviction by an G additional magistrate of Johannesburg in respect of an incident which occurred in a Johannesburg flat building between an elderly lady, Mrs. Sher, and an elderly gentleman, somewhat older than she is, now the appellant before court, who was found guilty of a rather nominal assault.

The evidence is that for certain reasons ill feeling arose between the two parties. On the morning concerned they had a H quarrel at the entrance of the lift on the sixth floor of the building where both of them were resident and this quarrel terminated in the pushing over of the complainant by the appellant. A consideration of the evidence suggests no reason whatsoever to differ from the magistrate's findings of fact based on the evidence of the complainant, a Mrs. Vogel and the cleaner, Shikowane, and it also does not suggest any reason why the magistrate's rejection of the evidence of the appellant cannot be sustained.

FS Steyn J

The magistrate, in his reasons (specifically at p. 38), says:

"I find that, on the accused's explanation, there is no reasonable possibility that the accused's explanation might be true."

We cannot find any reason to differ from that finding.

The State had the task to negative the defence of the appellant who admitted that he pushed over the complainant, but who A justified this push by saying that it was done in self-defence and by further alleging that the fall of the complainant was to a great extent by her own volition and not by the force of his push. These exonerating allegations of the appellant are completely contradicted by the evidence of Mrs. Vogel, the B cleaner Shikowane, and the complainant herself and there are no grounds to dispute the magistrate's finding of facts in respect of these aspects. It is unnecessary to traverse the evidence again but on careful analysis there is very much of an admission of the assault by the appellant himself on p. 27 of the record where he gives his description of the occurrence, his spontaneous description, where he says:

"No, when she got out, I released my - I released my hand of C the door handle, then she got hold of it, and when she wanted to smack me then, I pushed her."

He alleges in his own evidence that there was some indication that there might be an assault from her. He takes it much further later on when he is led in his evidence and he alleges prior assaults. But the evidence of both Mrs. Vogel...