S v Trainor
Jurisdiction | South Africa |
Judge | Olivier JA, Cameron JA and Navsa JA |
Judgment Date | 26 September 2002 |
Citation | 2003 (1) SACR 35 (SCA) |
Docket Number | 468/2001 |
Hearing Date | 17 September 2002 |
Counsel | A D Maher for the appellant. W P Tarantal for the respondent. |
Court | Supreme Court of Appeal |
Navsa JA:
[1] On 10 November 1999 the Wynberg magistrate's court issued an order (the order) in terms of the provisions of the Prevention of Family Violence Act 133 of 1993 (the FVA) prohibiting the appellant, inter alia, from assaulting his wife Melinda Trainor. The FVA was replaced by the Domestic Violence Act 116 of 1998 (the Act), which came into effect on 15 December 1999. In terms of B s 21(2) of the Act an order granted in terms of the FVA is deemed to have been made in terms of the Act. In terms of s 17(a) of the Act it is an offence to breach an order such as was made against the appellant.
[2] On 10 March 2000 the appellant was convicted in the magistrate's court for the district of Wynberg of contravening C s 17(a) of the Act on the basis that he had assaulted his wife, the complainant, on 23 December 1999. In terms of s 297(1)(a)(ii) of the Criminal Procedure Act 51 of 1977 the magistrate postponed the passing of sentence for one year. The appellant appealed unsuccessfully to the Cape High Court (Thring J and Moosa J) against his conviction. The present appeal against the D conviction is with leave of that Court.
[3] The issue in this appeal is whether in breach of the order the appellant assaulted his wife on 23 December 1999.
[4] It is common cause that the order was in force at the E material time. At the trial the magistrate was faced with two versions of what had occurred on 23 December 1999. A brief summary of the complainant's version of events is as follows. She and the appellant had arranged that on the day in question they would discuss the venue at which they would celebrate Christmas day. The appellant was preparing to leave the house for work when he engaged her in discussion F on the subject. The complainant expressed incredulity that he wanted to discuss the matter whilst on his way out of the house. She walked with him to his motor vehicle in the garage. He sat in the motor vehicle and was about to drive off when she put her hand through the open window on the driver's side of the motor vehicle and attempted to remove the G keys from the ignition. In response the appellant started assaulting her. Initially he hit her hand. He got out of the vehicle and continued hitting and kicking her. He struck her on her arms, face, legs, shoulders and back. She smacked him in a bid to get away. She finally managed to make her way out of the garage into the house and phoned the police. The appellant drove off. H
[5] I turn to the appellant's version of events. Shortly before he was due to leave for work he attempted to engage the complainant on the question of Christmas day celebrations. He agrees that she stated that he was 'unbelievable'. He interpreted this to mean that she did not wish to discuss the matter and made his way to his motor vehicle. She followed him. The appellant confirmed that the I complainant attempted to remove the keys from the ignition at which point he pushed her hand aside. In response she assaulted him. She punched him through the window. He got out of the vehicle and warded off the blows that she rained down on him. He struck her once on the arm in self-defence and kicked her once J
Navsa JA
on the shin after she had kicked him. She then departed and he saw her making a telephone call. A
[6] In evaluating the evidence the magistrate said the following:
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Law of Evidence
...2019 (2) SACR 349 (ECP)S v Tandwa 2008 (1) SACR 613 (SCA)S v Thebus 2003 (2) SACR 319 (CC)S v TN 2020 (1) SACR 633 (LP)S v Trainor 2003 (1) SACR 35 (SCA)S v Van Aswegen 2001 (2) SACR 97 (SCA)S v Van der Meyden 1999 (1) SACR 447 (W)South African Coaters (Pty) Ltd v St Paul Insurance Co (SA) ......
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2015 index
...97S v Tlale 2015 (1) SACR 88 (GJ) .......................................................... 123-4S v Trainor 2003 (1) SACR 35 (SCA).................................................... 254S v TS 2015 (1) SACR 489 (WCC) ............................... 338-346, 373-5, 437-447S v Uithaler 2015......
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2012 index
...228-230S v Tladi 1978 (2) SA 476 (O) ............................................................. 367S v Trainor 2003 (1) SACR 35 (SCA) ............................................ 84-86, 89, 92S v Truyens 2012 (1) SACR 79 (SCA) ...................................... 54, 158-159, 163S v Va......
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2010 index
...271S v Toba and Another 2008 (1) SACR 415 (E) ............................................. 290S v Trainor 2003 (1) SACR 35 (SCA) ........................................................... 126S v Tsatsinyana 1986 (2) SA 504 (T) ............................................................. ......
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Law of Evidence
...2019 (2) SACR 349 (ECP)S v Tandwa 2008 (1) SACR 613 (SCA)S v Thebus 2003 (2) SACR 319 (CC)S v TN 2020 (1) SACR 633 (LP)S v Trainor 2003 (1) SACR 35 (SCA)S v Van Aswegen 2001 (2) SACR 97 (SCA)S v Van der Meyden 1999 (1) SACR 447 (W)South African Coaters (Pty) Ltd v St Paul Insurance Co (SA) ......
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2015 index
...97S v Tlale 2015 (1) SACR 88 (GJ) .......................................................... 123-4S v Trainor 2003 (1) SACR 35 (SCA).................................................... 254S v TS 2015 (1) SACR 489 (WCC) ............................... 338-346, 373-5, 437-447S v Uithaler 2015......
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2012 index
...228-230S v Tladi 1978 (2) SA 476 (O) ............................................................. 367S v Trainor 2003 (1) SACR 35 (SCA) ............................................ 84-86, 89, 92S v Truyens 2012 (1) SACR 79 (SCA) ...................................... 54, 158-159, 163S v Va......
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2010 index
...271S v Toba and Another 2008 (1) SACR 415 (E) ............................................. 290S v Trainor 2003 (1) SACR 35 (SCA) ........................................................... 126S v Tsatsinyana 1986 (2) SA 504 (T) ............................................................. ......