Verster v S (CA&R 168/11) [2011] ZAECGHC 81 (15 December 2011)

IN THE HIGH COURT OF

SOUTH AFRICA

EASTERN CAPE –

GRAHAMSTOWN

Case No: CA&R 168/11

Date Heard: 7/12/11

Date Delivered: 15/12/11

In the matter between:

GIDEON VERSTER…..............................................................Appellant

GIDEON VERSTER

…..............................................................

THE STATE….....................................................................Respondent

THE STATE

….....................................................................

_______________

JUDGMENT

REVELAS J

[1] The fifty year old appellant, a former policeman, was charged in the District Court, Port Elizabeth, with assault with intent to cause grievous bodily harm. He pleaded not guilty but was nonetheless convicted as charged and sentenced to pay a fine of R3000.00 or undergo 6 months imprisonment. This appeal is against his conviction only and is with leave of the trial court.

[2] The charge arises from an incident which occurred on 8 March 2010, just after eight o’ clock in the evening, outside a house in Algoa Park, which was the home of the complainant’s mother, Mrs Ward (“Ward)”. It is not in dispute that the complainant (or “van der Merwe”), a serving policeman, was on night shift patrol duty that evening with Constable Te Brugge (“Te Brugge”), who drove the police vehicle in which they were travlling. In Chutley Avenue, which is close to the complainant’s mother’s home, and where his children were staying that night, the complainant decided to go and

say goodnight to them. Te Brugge parked the police vehicle outside Ward’s house and the complainant went inside, leaving Te Brugge in the vehicle. After a while he came out of the house where he encountered the appellant. What followed after this point, is very much in dispute.

The Complainant’s Version

[3] The complainant said as he left his mother’s house to join Te Brugge who was waiting for him in the vehicle, he turned around and said goodbye to his daughter who was standing on the stoep. His mother was standing in the door. He also cautioned them to lock the gate. As he turned away from them, a person punched him in the mouth. The blow caught him off balance, it caused him to stagger and bend over. The same person, who was the appellant, then lifted his head by grabbing his hair and punched him a second time also in the face, which involved his nose and mouth as I understood his evidence. Te Brugge then intervened and pulled the appellant off him. The complainant said by then several people had gathered in the street. He noticed Mr Gerber (the appellant’s brother-in-law) leaning against the car. He then took out his fire-arm but added that he did not point it at anyone. Te Brugge had in the interim, pushed the appellant against the wall. The wife of the appellant had also come forward, being very vociferous. According to the complainant the appellant and his wife expressed their dissatisfaction about how he had dealt with a complaint concerning the Gerbers, which he attended to the night before (when the appellant was not present). He said he tried to explain to the appellant that he had just responded to a complaint made at the charge office, but the appellant would not listen to him

and just punched him. The complainant and Te Brugge took the complainant to the police station after the incident. According to

the complainant, when they were at the police station the appellant made several remarks of a very personal nature against him, such as that he was corrupt and used drugs. He said he did not notice any bleeding from his mouth and he did not regard the injury itself as serious.

[4] Te Brugge testified that while he was sitting in the police vehicle, waiting for the complainant the appellant approached him and asked him who he was, and who he was with. When informed that he was with the complainant who was inside the house, the appellant asked to see the complainant. Te Brugge obliged and the complainant responded that he would be there shortly, and he was. As the complainant emerged from the house, Te Brugge noticed that he was in the presence of his mother and two children. At about the same time, Te Brugge said, an important message he was expecting came through on his cellphone and he attended to it. When he looked up from his phone he saw how, just after the complainant had said good-bye to his daughter, the appellant hit the complainant in the face with his closed fist. As the complainant bent over and forward, the appellant gave him a second punch, which was also in the face. During cross-examination the fact that he did not see the appellant grabbing the complainant by the hair, was pursued. Te Brugge said he then jumped out of the vehicle and grabbed the appellant “just to geta space between him and Inspector van der Merwe” and took the appellant to the sidewalk towards the wall. Several people emerged and surrounded the complainant who then took out his fire-arm.

just to get

a space between him and Inspector van der Merwe

[5] When asked whether the complainant said anything to the appellant before he was punched in the face, Te Brugge answered:

“I could remember him asking when he turned around:

I could remember him asking when he turned around:

‘Who are you?”

Who are you?”

Constable Te Brugge testified that he saw blood between the appellant’s teeth after the assault.

[6] Te Brugge’s evidence differed from the complainant’s version in the three following respects:

[6.1] According to the complainant, his son was asleep and only his daughter was on the stoep when he left the premises. Te Brugge was quite certain he saw the complainant’s young son (the “laaitie” as he referred to him) on the stoep.

[6.2] The complainant’s testimony about how the complainant was lifted by his hair was also not corroborated by Te Brugge. He alleged that the assault took place in front of the bonnet of the vehicle in which he was seated at that stage. According to him the vehicle’s bonnet obscured his view. That begs the question how it was possible for him to see the complainant being hit in the face, for the second time. He said the following about the second punch:

“I can’t say where in the face, but it was in the face because he was hitting him from the bottom up”.

I can’t say where in the face, but it was in the face because he was hitting him from the bottom up”.

If the bonnet of the vehicle prevented Te Brugge from seeing whether indeed the complainant’s head was pulled up by the hair, it would stand to reason that he would have been unable see to the second punch for the same reason. The prosecutor’s attempt to resolve this discrepancy on this very important aspect in the evidence, was not successful.

[6.3] The complainant’s version was that he inferred from what was said by the complainant’s wife (who did most of the talking as I understand it) and the appellant himself, that the reason for them being in front of the house was because of the incident of the night before at the Gerber’s house. Te Brugge heard nothing of the kind. According to him nothing was said by anyone which could explain the appellant’s presence in front of Ward’s house.

[7] The complainant’s mother, Ward, who also testified, largely corroborated her son’s evidence as to the events which took place outside her house that evening, but added more dramatic notes, such as that the complainant’s daughter (her granddaughter) became hysterical when her father was hit, and that the complainant’s mouth was injured to the extent that he spat blood out of his mouth. She disputed that Te Brugge called the complainant outside, but explained that her television was on at the time. Ward was adamant that Te Brugge was mistaken about her grandson’s presence on the stoep with her and her granddaughter. Her testimony also differed from Te Brugge’s on what was said by the complainant to the appellant immediately after or during the assault. She said it was: “You assaulted me on my face, you assaulted me”.

You assaulted me on my face, you assaulted me

The Appellant’s Version

[8] The appellant’s version as put by legal representative to the complainant was:

“. . . when you came out of the house, because Constable Te Brugge called you, you acknowledged that you came out and as you came out you swear (sic) a number of swearing (sic) words, you rumbled it down (sic) and then you confronted the accused, went up to him because of the fact that you know him and you testified to Court that you knew him and he pushed you away, but there was never any assault, he never hit you with a fist”.

. . . when you came out of the house, because Constable Te Brugge called you, you acknowledged that you came out and as you came out you swear (

) a number of swearing (

) words, you rumbled it down (

) and then you confronted the accused, went up to him because of the fact that you know him and you testified to Court that you knew him and he pushed you away, but there was never any assault, he never hit you with a fist”.

[9] The purpose of his arrival at the complainant’s mother’s home he said, was to “relay a message to this person I didn’t know, I only knew the name”because “this person” (the complainant) had allegedly climbed over Gerber’s fence with another policeman, entered his home and treated him like a suspect in a criminal matter, (i.e. car theft case). Because the magistrate prevented the appellant from testifying on this aspect, the exact nature of that incident did not become evidence, but there was sufficient reference to it to accept that it resulted in the appellant reporting certain alleged misconduct of the two policemen to their commanding officer on the 8 March 2010 (the date on which the incident presently under consideration occurred). According to the appellant, when the two policemen were at Gerber’s house the previous evening (that would be 7 March 2010) “they threatened that they will be back on the evening of the 8that 7 o’clock and then they want the stolen car”.The appellant was not present when this occurred. Gerber was aggrieved by their conduct because the vehicle was given to his daughter by her former boyfriend and a dispute between the two of them had occurred.

relay a message to this person I didn’t know, I only knew the name”

this person

they threatened that they will be back on the evening of the 8

at 7 o’clock and then they want the stolen car”.

[10] The appellant, as a former policeman, felt that since this was a civil matter, the conduct of the policemen was unprofessional and should be reported to their commanding officer. He then took the matter up with what I understood to be former colleagues of his at the police station, and a formal complaint against van der Merwe, (the complainant) was submitted. The acting station commander, according to the appellant, shared his own view that Gerber should not have been approached since it was a civil matter. She allegedly also told him that she could not get hold of the complainant as he had no fixed address in Uitenhage, but when he arrived at Gerber’s home as he had promised (to be there at 7 p.m. on 8 March) the appellant should let her know.

[11] The appellant then went to Gerber’s home on the evening of the 8thof March and when 7 o’clock came and went, without the arrival of the complainant, they became impatient. Because Gerber had some nerve trouble, (he just sat there pulling at his beard) the appellant did not want to wait beyond 8 o’clock. He fortuitously learnt from “somebody” that a police vehicle was seen at the complainant’s mother’s house and he decided to go to Ward’s house, to give the complainant his commanding officer’s message. His wife, Gerber and Gerber’s daughter accompanied him. The appellant confirmed Te Brugge’s evidence that he found him busy with his cellphone, behind the steering wheel and asked Te Brugge to call the complainant, which he did, and shortly thereafter the complainant came out of the house with his mother and daughter. The appellant said he then moved away from where he was standing next to Te Brugge (who was still in the vehicle) and waited in front of the vehicle for the complainant to come to him.

[12] The complainant, according to him, came out of the gate saying: “Wat soek julle voor my ma se fokken huis” and then increased his pace, walking on the side walk towards the appellant, swearing all the way prattling off swear words and then stood in front of him and said to him: “jou fokken poes,jou ma se poes”,in his face. The appellant described how this man (the complainant) with a “skeleton type face” was “spitting obscenities to me”.

Wat soek julle voor my ma se fokken huis

jou fokken poes,

jou ma se poes”,

skeleton type face

spitting obscenities to me”.

[13] The appellant said he instinctively pushed the complainant away from him and the complainant stumbled forward for two meters, and moved away a further three meters so that he was about five metres away towards a corner. Then the complainant drew his pistol from his holster and pointed it at the appellant. After a while, which the appellant thought was “a long time”,Te Brugge intervened and put himself between them. The appellant attributed Te Brugge’s actions to an appreciation that the complainant was “mad” and “_ _ _not right in the headbecause all that is needed now for a shot to be fired was a little bit of pressure on the trigger”. Te Brugge then took the appellant by the shirt and led him to the wall of the house. The appellant said he offered no resistance.

a long time”,

not right in the head

because all that is needed now for a shot to be fired was a little bit of pressure on the trigger

[14] According to the appellant, the complainant also walked over to Gerber and pressed the gun against Gerber’s body, repeatedly using the same swear words quoted above. He swore at the appellant’s wife, and added that he was going to lock them up (referring to her and Gerber) because they “brought this guy here to assault me”.

brought this guy here to assault me

[15] According to the appellant, assaulting the complainant was the furthest thing from his mind when he went to the complainant’s mother. He dismissed the evidence about his alleged assault of the complainant of the State witnesses as false. He also drew attention to the fact that he was a big man (114 kilograms) and the complainant was not. He argued that if he had punched the complainant once, let alone twice in the face, the injuries would have been far more serious, in that he would have sustained a broken nose or teeth. At the charge office the appellant also laid criminal charges against the complainant as a result of the alleged swearing (crimen injuria) and the pointing of a firearm.

crimen injuria

The Magistrate’s Findings

[16] The magistrate found that the State witnesses had impressed her and had given the “true version” of the assault. She also relied on the appellant’s evidence about what the complainant had said to him outside the house, which was (and she quoted it in her judgment): “_ _ you brought this guy to assault me”and held that the appellant admitted to assaulting the complainant.

_ _ you brought this guy to assault me”

[17] The magistrate rejected the appellant’s version as false. She was critical of the fact that the appellant never managed to convey his message from the acting station commander to the complainant as he said he intended, and that instead of relaying his message, a quarrel broke out. In the magistrate’s view the State witnesses’ version of the assault was strengthened by the appellant’s evidence that the complainant had staggered and bent over, two meters away from him, after he had shoved him, as described by Te Brugge. The magistrate also held the view that the appellant’s failure to call his wife or Gerber as witnesses was due to a fear on his part that they would expose the untruthfulness of his testimony.

Discussion

[18] Apart from the discrepancies referred to above, there were also discrepancies in the versions of the State witnesses, the complainant and the appellant. Te Brugge confirmed the appellant’s version about how he had called the complainant from outside the house. The complainant was however unable to recall that Te Brugge had called him. Ward said that she did not hear Te Brugge calling, but explained that it could be because her television was on. This discrepancy was pursued in cross-examination of Te Brugge with some vigour, but nothing seems to turn on it. What was not in dispute is that the complainant did emerge from the house, shortly thereafter.

[19] Te Brugge and Ward testified that there was blood in the complainant’s mouth. The complainant said there was not. This was also pursued in cross-examination of the State witnesses. It should not be overlooked that the complainant did not emphatically deny that his mouth bled. He said he could not remember if it bled and when asked by the Court to state whether he was bleeding or not he said: “No,I was not bleeding according to my own_ _ _”. None of his statements are unequivocal statements to the effect that he was not bleeding at all. His statements do not exclude the possibility that he might have bled, but just did not notice it himself. Ward and Te Brugge saw it after the assault. It is hardly likely that the complainant would have looked in the mirror to check for bleeding at that point.

I was not bleeding according to my own

[20] Much was made of the fact that the complainant did not seek medical care for his injuries or underwent any medical examination to prove that he was assaulted. This criticism is unwarranted. The fact of the matter was that the complainant’s injuries were not serious. No bone or teeth were cracked or fractured. The complaint did not notice any blood, but his lip was swollen. He took two pain pills (Disprins) that night as well as anti-depressants and went to bed.

[21] This was not an easy matter to decide. The trial court was faced with two mutually exclusive versions which are entirely different. Neither one of these versions can be described as predominantly false, or not reasonably possible. All the witnesses testified in English which appeared not to be their first language, and events in the past were sometimes presented as if in the present. Both the complainant and the appellant made numerous allegations of misconduct against each other and gave evidence in a manner which was not always easy to follow. Both the appellant and the complainant alike were criticized by the prosecutor, magistrate and the complainant’s representative about the way they testified. Ward was also admonished by the magistrate for not answering questions properly.

[22] Despite these difficulties, the question which must still be considered, is whether the appellant’s version could reasonably and possibly be true. It was rather unfortunate that the appellant went to the complainant’s mother’s house with his wife, Gerber and the latter’s daughter in tow. The appellant was not even present when the complainant came to Gerber’s house. Counsel for the State submitted that this “troupe” of people suggests that the appellant went there not just to convey a message, but to have a confrontation with the complainant against whom he had a grievance, and to assault him. Thatper sedoes not exclude the possibility that the complainant behaved as described by the appellant.

per se

[23] The appellant’s legal representative in the courta quoargued that this was a typical case where a police officer (the complainant), faced with charges levelled against him (thecrimen iniuria;a pointing of the fire-arm), laid trumped up charges against the civilian (the appellant) in question in retaliation. The flaw in that argument is that it is not certain when the appellant was charged for assault in relation to the charges he brought against the complainant (crimen iniuriaetc). It must also be considered whether it was reasonably possible that the complainant lost his temper and the appellant had to push him away, but perhaps underplayed the force with which he pushed him away. This explanation was alluded to by the appellant’s counsel when he argued before the magistrate that the complainant’s injuries could have been sustained when the appellant shoved the complainant away from him. Since there was no evidence that he shoved him in the face, I can find no support for such an argument. It is also possible that the appellant laid charges ofcrimen iniuriaand assault against the complainant in retaliation for the assault charge.

crimen iniuria;

crimen iniuria

crimen iniuria

[24] It seems to me to be improbable that the appellant, even if he went to the house in a bellicose mood, would have punched the complainant in the mouth without some form of provocation, however slight, on the part of the complainant. The complaint which arose out of the incident at Gerber’s house the night before was hardly likely on its own to have provoked the appellant to punch the complainant without a word of aggravation on the part of the complainant. The fact that all three State witnesses gave different versions on what was said immediately before the first punch fell, or thereafter, is very important in the light of the appellant’s version that the complainant swore profusely at him just before he allegedly only pushed him away.

[25] Counsel for the State argued that the complainant had no reason to be angry with the appellant because at that stage, he would not have known about the complaint laid against him as he had not been to the police station yet. Presumably, this submission is based on the appellant’s discussion with the acting station commander who told him that she was unable to make contact with the complainant who had not been to the police station on that day, and she had no way of contacting him. The magistrate interpreted this to mean that the acting station commander was protecting the complainant from the appellant. In my view, this may have been a misdirection on the part of the Magistrate, but it is not fatal. To return to the submission that the complainant would not have been aware of the complaint against him at the stage just before the incident in question, it cannot, in my view be ruled out that the complainant was made aware of this complaint against him during the course of the day. He and Te Brugge were patrolling in what Te Brugge termed “the complaints vehicle”, which in all likelihood would have been equipped with a radio which

was in contact with the police station. The complainant may very well have been made aware that a complaint was made against him and harboured animosity towards whoever made the complaint.

[26] On the complainant’s own version, when he saw Gerber and the appellant’s wife, he attributed their presence in front of his mother’s house to the incident of the night before at Gerber’s house. Even without knowledge of the complaint made against him at the police station, their presence in front of his mother’s house would have most likely annoyed him. It was an invasion of his privacy and his two children were in the house.

[27] Nothing in the appellant’s version has been shown to be inherently false or not reasonably possible. The nature of the evidence in this case is such that it cannot be determined with any certainty where the real truth lies. Perhaps both versions are partially true. In such circumstances where the real truth is in doubt, the trier of fact in a criminal trial is obliged to give the accused person the benefit of the doubt, because the State bears an onus of proving the accused’s guilt beyond reasonable doubt. That is what the magistrate ought to have done in this matter.

[28] Accordingly, the appeal must succeed. The conviction and sentence of the appellant is set aside.

_______

E REVELAS

Judge of the High Court

Pickering J: I Agree.

____

JD PICKERING