S v Visagie

• Jurisdiction: South Africa
• Judge: Preller J and EM du Toit AJ
• Judgment Date: 23 September 2008
• Citation: 2009 (2) SACR 70 (W)
• Docket Number: A 1616/04
• Hearing Date: 23 September 2008
• Counsel: CTH McKelvey for the appellant. N Lombard for the State.
• Court: Witwatersrand Local Division

S v Visagie
2009 (2) SACR 70 (W)

2009 (2) SACR p70

Citation	2009 (2) SACR 70 (W)
Case No	A 1616/04
Court	Witwatersrand Local Division
Judge	Preller J and EM du Toit AJ
Heard	September 23, 2008
Judgment	September 23, 2008
Counsel	CTH McKelvey for the appellant.; N Lombard for the State.

Flynote : Sleutelwoorde

B Assault — Common assault — Appellant pushing complainant, latter falling and breaking wrist — Two grown men conducting themselves like schoolboys — Principle de minimis non curat lex applicable.

Maxims — De minimis non curat lex — Applicability of — Common assault — C Judicial officer charged with policy decision to be exercised according to all relevant circumstances of case — Court extensively reviewing judicial authority and academic opinion — Two grown men conducting themselves in manner reminiscent of two little boys on a playground — Complainant's provocative and aggressive conduct relevant, as was fact that complainant had fractured a wrist — However, latter fact not excluding application of de minimis D principle — In circumstances of case, better serving administration of justice, without adversely affecting interests of community, if courts not becoming concerned with such childish and trivial behaviour.

Headnote : Kopnota

The appellant was convicted in a magistrates' court of common assault and sentenced to be cautioned and discharged. The charge arose from an E incident in which the complainant, a mechanic, and the appellant had become involved in a verbal altercation concerning repairs to the latter's vehicle. At a certain point the appellant pushed the complainant, causing him to trip over a piece of equipment and break his wrist. The appeal was based, inter alia, on the ground that the magistrate ought to have applied the maxim de minimis non curat lex.

F Held, that whether or not to allow an acquittal on the grounds of the triviality of an alleged offence was a value judgment. In determining the applicability of the de minimis principle the judicial officer was charged with a policy decision that was to be exercised according to all the relevant circumstances of the case, including the interests of the community. The circumstances in the present case, where two grown men had conducted themselves in a G manner reminiscent of two little boys on a playground, were less serious than those in many of the cases where the maxim had been found not to be applicable. The complainant's provocative and aggressive conduct was also a relevant circumstance, as was the fact that the complainant had fractured his wrist. However, having regard to the severity of the injury and the manner in which it had been sustained, the mere fact that the complainant H had been injured did not constitute a circumstance tending to exclude the application of the de minimis principle in this instance. In all the circumstances of the case it would better serve the administration of justice in the nation's busy courts, without adversely affecting the interests of the community as a whole, if the courts were not to become concerned with such childish and trivial behaviour. (Paragraphs [15] and [31]–[36] at 77 c–d I and 85 h–87 d.)

Conviction and sentence set aside.

Annoatations:

Cases cited

Reported cases

Du Plessis v Regina 1956 (1) PH H115 (HC, SR): compared J

2009 (2) SACR p71

Keevy v Dickerson (1908) 18 CTR 720: compared A

R v Botha 1939 SR 43: compared

R v Dunga 1913 CPD 110: compared

R v Herbert (1900) 10 CTR 424: compared

R v Maguire 1969 (4) SA 191 (RA) (1969 (2) RLR 341 (A)): compared

R v Van Vuuren and Another 1961 (3) SA 305 (E): compared

S v Bester 1971 (4) SA 28 (T): compared B

S v Dimuri and Others 1999 (1) SACR 79 (ZH): considered

S v Kgogong 1980 (3) SA 600 (A): considered

S v Schwartz 1971 (4) SA 30 (T): compared

S v Zondi 2003 (2) SACR 227 (W): referred to.

Case Information

Appeal against conviction handed down in a magistrates' court. The C facts appear from the judgment of EM Du Toit AJ, in which Preller J concurred.

CTH McKelvey for the appellant.

N Lombard for the State.

Judgment

EM du Toit AJ:

[1] The appellant was convicted in the magistrates' court of common assault and sentenced to be cautioned and discharged. The present is an appeal against his conviction.

[2] At the outset I apologise for the delay in finalising this judgment, due E initially to the need to prioritise work in this busy division and subsequently to an unfortunate succession of personal circumstances.

[3] The two grounds on which the appeal is founded as specified in the appellant's notice of appeal, which is in Afrikaans, are, firstly, that the magistrate erred in accepting the evidence of the witnesses for the State F as being credible and, secondly, that he erred in rejecting the appellant's version and that he did not evaluate such version properly. However, both in the appellant's heads of argument and in argument before us it was submitted that the magistrate should have applied the maxim de minimis non curat lex [1] and acquitted the appellant. Since the application G of this maxim was raised in argument before the court a quo, although not mentioned in the judgment, and since counsel appearing for the State not only did not object to it again being raised at this stage, but dealt therewith in the respondent's heads of argument and also in her address, we should in my view entertain that submission as an additional ground of appeal. H

[4] In the event it seems advisable to refer to the record of the proceedings in the court a quo, and particularly the complainant's evidence, in some detail.

[5] The 73-page record contains numerous spelling mistakes and bristles I with the expression '(inaudible)', indicating that a word or phrase has not been transcribed. It furthermore includes a qualified certificate

2009 (2) SACR p72

EM du Toit AJ

A wherein the transcriber noted as 'problems' 'that this transcription is only a draft as the witnesses could not be heard clearly' and that 'since the transcribers are not allowed to guess what is being said it was a struggle to hear the particular parties and then to type everything verbatim'. Nevertheless, in my view the record, although unsatisfactory, B is adequate for present purposes. [2]

[6] The appellant was charged on two counts, viz assault with intent to do grievous bodily harm and crimen injuria, in that on 2 April 2003 and at the Caltex Service Station, he on count 1, unlawfully and intentionally assaulted the complainant by:

'(1)

C Pushing him in such a way that he fell down and broke his hand.

(2)

By saying ''I will fuck you up'' with intent to cause him grievous bodily harm'

and on count 2:

D 'did unlawfully and intentionally injure and insult and impair the dignity of [the complainant] by saying he is a ''aunt'', [3] a ''poes'' - that he ran ''a doll house workshop''.'

[7] The complainant testified that he was 41 years old and worked at the Caltex Service Station 'on the workshop side'. In essence his evidence, E with its various relatively minor variations, contradictions and concessions, was that on the day in question one Christie had brought his Golf motor vehicle back and said that there was a problem with an alternator the complainant had replaced on 10 October the previous year. Christie worked for the appellant, whose firm paid for the repairs. The complainant told him that he would check the problem when he returned from F taking a client home and that, if it was a claim, it would take three days. When he returned to the workshop at about 10:00 the appellant was there waiting for him. He told the appellant that he was pretty sure it was the alternator and he needed to check or take it out and send it in, which would probably take about three days. Asked why it was going to take so G long, he replied that it was normal and that a claim took time, whereupon the appellant said: 'Impossible, we cannot run a business like this.' The appellant was upset and started accusing him of having done 'a crap job' and having put in a used part, and he wanted proof that the complainant had fitted a new alternator. What probably upset him more was that it would take about three days to sort out this problem. The H complainant wanted to prove that he had done what he had done. Either before going to the office or after being in the office - it was six, seven, eight months ago and he could not remember exactly - the appellant started swearing at him, he could not recall exactly what he said, and in the process also started calling his workshop 'a doll house' because they I had two little girls in the workshop with their toys. In the office, when he was looking for the file to prove that he had fitted a new alternator, the appellant started swearing at him, calling him 'all types of names' - he

2009 (2) SACR p73

EM du Toit AJ

did not know if he might use the names or not. Upon being required to A tell the court the words the appellant used, he stated that when they were in the office the appellant was calling him a 'cunt' [4] and a 'poes' [5] and said 'I will fuck you up' [6] and 'you are running doll house workshop'. He 'kept using the words you are a c . . . and you are a p . . .' and said that the complainant did not know how to run a workshop. The appellant B 'eventually carried on swearing at' him, whereupon he told him 'I am not interested in doing the job anymore, I am going to walk out' and requested the appellant to please leave the workshop. He then 'sort of brushed past the gentleman' in the office and went out. It is a very small office and he turned sideways to get through between the appellant and Christie. To the question 'You did not touch them at all?', he replied 'I C cannot say I did, I probably brushed across them yes'. The appellant...