S v Bierman and Another [2007] ZAFSHC 139 (30 November 2007)

S v Bierman and Another [2007] ZAFSHC 139 (30 November 2007)

The court found that the probabilities favoured the complainant's version that he was pushed or thrown off the bakkie by the second applicant and thereafter assaulted by the first applicant. The evidence of the complainant and his witness Malinga was consistent on the essential aspects, and discrepancies were minor and attributable to the circumstances. The applicants' denial of assault was not credible given their admitted anger and conduct. The court held that the application for leave to appeal was without merit and that no reasonable prospect existed that another court would reach a different conclusion on the totality of the evidence.

Citation
[2007] ZAFSHC 139
Parties
Applicant: M D Bierman; Applicant: B D Bierman; Respondent: The State
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
30 November 2007
Case Number
LA147/2004
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Conviction After Petition Refused
Outcome
Application for leave to appeal against conviction dismissed.
Judges
H.M. Musi, Ebrahim
Legal Topics
Assault, Assault With Intent to Do Grievous Bodily Harm, Leave to Appeal, Credibility of Witnesses, Probabilities Analysis
Criminal Law Assault Assault With Intent to Do Grievous Bodily Harm Leave to Appeal Credibility of Witnesses Probabilities Analysis

Case Brief

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Parties

M D Bierman

Applicant

B D Bierman

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Conviction After Petition Refused

Legal Issues

  1. 1 Whether the trial magistrate erred in finding it improbable that the complainant fell off the bakkie without intervention.
  2. 2 Whether the trial court erred in rejecting the applicants' version as not reasonably possibly true.
  3. 3 Whether there is a reasonable prospect of success on appeal against conviction.

Ratio Decidendi

The court found that the probabilities favoured the complainant's version that he was pushed or thrown off the bakkie by the second applicant and thereafter assaulted by the first applicant. The evidence of the complainant and his witness Malinga was consistent on the essential aspects, and discrepancies were minor and attributable to the circumstances. The applicants' denial of assault was not credible given their admitted anger and conduct. The court held that the application for leave to appeal was without merit and that no reasonable prospect existed that another court would reach a different conclusion on the totality of the evidence.

Court Disposition

Application for leave to appeal against conviction dismissed.

Orders

  • The application for leave to appeal against conviction is dismissed.