S v Mushuwana (A113/09, 67, 22/2008 (Nkowankowa), C308/2008) [2009] ZAGPPHC 344 (8 December 2009)

S v Mushuwana (A113/09, 67, 22/2008 (Nkowankowa), C308/2008) [2009] ZAGPPHC 344 (8 December 2009)

The reviewing judge found that the magistrate's reasons for rejecting the evidence of the accused and his witness were unfounded. The accused and his witness corroborated each other on all material aspects, and there was no valid reason to reject their version. The probabilities favoured the accused's account, as the complainant's version of a sudden, unprovoked attack by the tavern owner was improbable. The accused's version was reasonably possibly true, and therefore, the conviction could not stand.

Citation
[2009] ZAGPPHC 344
Parties
Respondent: The State; Appellant: GN Mushwana
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
8 December 2009
Case Number
A113/09
Procedural Posture
Criminal Review / Review of Conviction and Sentence
Outcome
Conviction and sentence set aside; accused found not guilty.
Judges
C.P. Rabie, G. Webster
Legal Topics
Assault With Intent to Do Grievous Bodily Harm, Credibility of Witnesses, Reasonable Possibility of Truth, Review Proceedings
Criminal Law Assault With Intent to Do Grievous Bodily Harm Credibility of Witnesses Reasonable Possibility of Truth Review Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

The State

Respondent

GN Mushwana

Appellant

Procedural Posture

Criminal Review / Review of Conviction and Sentence

Legal Issues

  1. 1 Whether the accused was properly convicted of assault with intent to do grievous bodily harm.
  2. 2 Whether the magistrate correctly rejected the evidence of the accused and his witness.
  3. 3 Whether the probabilities support the accused's version of events.

Ratio Decidendi

The reviewing judge found that the magistrate's reasons for rejecting the evidence of the accused and his witness were unfounded. The accused and his witness corroborated each other on all material aspects, and there was no valid reason to reject their version. The probabilities favoured the accused's account, as the complainant's version of a sudden, unprovoked attack by the tavern owner was improbable. The accused's version was reasonably possibly true, and therefore, the conviction could not stand.

Court Disposition

Conviction and sentence set aside; accused found not guilty.

Orders

  • The conviction and sentence are set aside and replaced by the following: 'The accused is found not guilty.'