Kwazulu-natal division, pietermaritzburg high court case no: ar

IN THE HIGH COURT OF SOUTH AFRICA

KWAZULU-NATAL DIVISION,

PIETERMARITZBURG

HIGH COURT CASE NO: AR 523/13

In the matter of:

JASON MUNRO APPELLANT

vs

THE STATE RESPONDENT ___________________________________________________________________

JUDGMENT

Heard on: 28 October 2014

Delivered on: 6 November 2014

___________________________________________________________________

D. Pillay J et Van Zyl J
Introduction

[1] The appellant was convicted of one count of assault and sentenced to pay a fine of R3 000, or in default, to undergo six months imprisonment, wholly suspended for three years on condition that during the period of suspension he is not convicted of assault or a competent verdict committed during the period of suspension. This appeal proceeds with the leave of the trial court.

Evidence and analysis

[2] The complainant, Mr Ngcobo was the sole witness for the state. He testified that on 18 February 2013 at about 17h00 he arrived at his home on Jan Smuts Avenue, Ethekwini. He stopped outside his electronic gates which were broken. He hooted for his children to open the gate. As he drove into his driveway the appellant knocked aggressively on the window of his vehicle. Initially he said that he opened the door and jumped out of the car to enquire what the appellant wanted. The appellant started insulting and accusing him of making a noise. He swore at him, threatened to hit him and manhandled him by ‘holding on his white shirt and coat’. On seeing his ‘physical response’ the appellant left the complainant’s property.

[3] The complainant followed the appellant. On seeing that he went into the neighbour’s property he called the police. From his evidence it appeared that late that evening the police arrived at his home. He accompanied them next door and identified the appellant who was then arrested. However the charge sheet shows that the appellant was arrested on 7 March 2013. No one in the trial court clarified this discrepancy. Consequently, no inferences, which can be for or against either party, can be drawn from the delay between the incident and the appellant’s arrest.
[4] The appellant, corroborated by his girlfriend Ms Hofhuis, testified that several times during that day they heard hooting from the complainant’s adjacent property. The hooting by the complainant at 17h00 that afternoon was particularly irritating as he was ‘sitting’ or ‘leaning’ on his hooter for a long time. Although there was hooting at the complainant’s gate several times that day and on many previous occasions they were not as irritated as they were that afternoon.
[5] On learning that the complainant worked more than one hundred kilometres away from his home the appellant acknowledged that it might not have been the complainant who had hooted several times that day. Ms Hofhius also conceded that she did not know but assumed that it was the complainant who had hooted several times earlier that day only because the hooter sounded the same.
[6] The appellant testified that he approached the complainant while he was still on the roadside waiting for his gate to be opened. The appellant knocked on his window. The complainant rolled down the window to enquire whether he could help the appellant. Manifestly irritated, the appellant asked whether he had a cellular phone and whether his children had a cellular phone so that he could call them instead of sitting on his hooter as the noise was irritating. He remonstrated that the complainant should have some consideration for the people around him.

[7] Questioning the complainant about his cellular phones instead of simply asking him to avoid hooting predictably provoked the complainant who asked the appellant where he came from. The appellant replied that he was Jason from next door. The complainant declared that it was his property and he did not have to explain anything to the appellant who was embarrassing his (the appellant’s) landlord. The appellant said it had nothing to do with his landlord. As he was about to leave the complainant said something about the appellant thinking that he was ‘a big man’. The appellant ignored him and returned to his home. The appellant disputed that he even touched the complainant or that he was aggressive.

[8] Ms Hofhuis substantially corroborated the appellant except for two aspects of her evidence that do not appear in his testimony. Firstly, when the police arrived to arrest the appellant she had a conversation with the complainant during which she said to him words to the following effect:

‘Why are you doing this? You know what you’re doing is wrong … if Jason hit you where are your bruises, where are your scratches, where are your cuts? … look Jason in the face and tell him that he assaulted you’.

To this she testified that the complainant looked at the floor and muttered something without looking her in the eye.
[9] Under cross-examination she clarified that the appellant was busy with the police at that time and probably did not hear her. Her evidence was put to the complainant. Consequently, the state was aware of her version when the appellant testified. But, he was not cross-examined on this issue. She added for the first time under cross-examination that he replied to her that he was embarrassed to be treated in that way in the presence of his children. Ms Hofhuis’s evidence in this regard corresponded with his testimony.

[10] Secondly, she testified that after the altercation the complainant continued to hoot incessantly even though the gate had been opened for him by that stage. This was new evidence which emerged during her evidence in chief. Without any explanation on the record as to why the appellant did not give this evidence it does not necessarily follow that Ms Hofhuis was mendacious or, as the trial court described her, ‘cunning’. She might have exaggerated the case to support the appellant; equally the appellant might have forgotten that part of the incident. Nevertheless this aspect of her evidence remains uncorroborated and therefore cannot be relied on.

[11] The charge sheet describes the assault as ‘grabbing him with his shirt’. It did not refer to any verbal assault. The complainant did not testify about the complainant ‘grabbing’ but ‘holding’ his shirt. By ‘handled’ and ‘manhandled’ the complainant meant that the appellant held him on his white shirt and coat. Neither the prosecutor and defence nor the court clarified how and where on the complainant’s white shirt and coat the appellant held him. No one asked how holding a person on his white shirt amounted to handling and manhandling. No one pointed out that the charge sheet did not mention the appellant holding the complainant by his coat.

[12] Under cross examination the manhandling whittled down to ‘an altercation’. The online Thesaurus (2014) offers the following synonyms for an altercation: argument, quarrel, disagreement, dispute, exchange, squabble, clash, confrontation, row, fight, difference of opinion. Synonyms for ‘manhandling’ include: pushing, shoving, bundling, jostling, hustling and moving. At a minimum it became common cause that there was an altercation. Typically in a prosecution for assault both sides tended to downplay or ameliorate their aggression and irritation. For the complainant to contemplate revenge simply because the appellant held him on his white shirt is manifestly a gross overreaction.

[13] Besides holding the shirt the only other ‘assault’ was verbal. The appellant was not charged with crimen injuria. Consequently, the allegations of verbal assault were wholly irrelevant to the charge.

De Minimus non curat lex

[14] Against this factual analysis we invited counsel to address us on the applicability of maxim de minimis non curat lex. This maxim applies when the law contravened in civil and criminal matters is trifling. We are indebted to the appellant’s counsel for his supplementary heads delivered on barely a days’ notice. He referred us to R v Dane 1957 (2) SA 472 (N); S v Bester 1971 (4) SA 28 (T) and Helm v S [2014] JOL 32323 (WCC). Counsel for the State correctly referred us to S v Visage 2009 (2) SACR 70 (W), a case which supported the appellant. In Visage the court applied the maxim in circumstances in which the appellant merely pushed the complainant. The ‘assault’ in this case of holding the complainant’s white shirt is objectively far less serious.

[15] On the complainant’s evidence alone the learned magistrate should have declared the complaint to be de minimis and acquitted the appellant. That did not happen in this case. An obstacle to discharging the appellant might have been the proverbial elephant in the court room which no one addressed namely, the underlying racial tension. The complainant an African male referred to the appellant on at least three occasions as a white guy, a white boy or a white male. The race of the appellant was an irrelevant consideration in the prosecution. However, it mattered to the complainant; otherwise he would not have mentioned it in his affidavit, lodging his complaint to the police and when he testified. If the race factor had not featured in the conflict this would have been nothing more than a minor spat between neighbors.
[16] The complainant’s thought of revenge for what was a neighbourly spat was extreme unless he had in mind revenge for years of discrimination under apartheid. If that was his underlying hurt that found expression in this conflict then the most appropriate form of resolving it would have been a conciliatory intervention such as counseling and mediation. The criminal prosecution served no better purpose than to engender more hurt, antagonism, anger and distrust between the protagonists. In our view the prosecution services should have refused to prosecute this complaint. The trial court should have found the complaint to be de minimis and discharged the appellant. In fairness to the learned magistrate the appellant did not plead the maxim as his defence.

Trial court’s analysis

[17] Having erred in not applying the maxim, the trial court should have assessed whether the state’s case was sufficient to discharge its onus. It should have found that holding in some unspecified manner a white shirt did not constitute the crime of assault; consequently, the state failed to discharge its onus; the appellant should not have been put to his defense at all. However, his representative did not apply for his discharge at the end of the state’s case but put him to his defence. The trial court missed another opportunity of making shortshrift of the complaint.

[18] The learned magistrate was uncritical of the complainant’s evidence. He found that he could not reconcile the evidence of Ms Hofhuis with that of ‘a man of Dr Ngcobo’s calibre’. He was impressed by the complainant’s qualification as a doctor in industrial economics, a man of ‘many accolades, a family man’ to whom he could not attribute ‘such irresponsible behaviour as leaning on his hooter for 30 to 40 seconds at a time’.¹
[19] He wrongly accepted that ‘by virtue of his education, his stature, Dr Ngcobo (was) a man who was ‘above average, a learned man’.² In contrast he found Ms Hofhuis to be a ‘cunning’ witness whose ‘evidence bore all the hallmarks of being schooled’. He found that she ‘added things that were not said and things that were not put to the complainant to rebut or confirm’. By being in awe of the complainant the learned magistrate was blinded to the flaws in his evidence.
[20] The complainant’s evidence was flawed in five material respects.

(a) First, he began his evidence by testifying that when the appellant knocked on his window he (the complainant) ‘opened the door and came out of the car’. Under cross-examination the defence drew his attention to his statement under oath to the police in which he said ‘out of nowhere the white male entered my gate. He forced open the driver’s door’. Over the next three pages of the transcript he became evasive. He conceded that he had a central locking system and that he had to release it before the door could be opened. Eventually he settled for saying that he was ‘in a situation of shock’ on facing an aggressive man, that it was ‘immaterial how the door was opened’. Finally he speculated that it could be that he opened the door at the same time when the appellant was trying to pull the door.³ ‘(F)orced open’ was manifestly deliberate exaggeration to paint the appellant as the aggressor.

(b) Second, regarding the conversation with Ms Hofhius, his first reaction was that he did not know whether it happened or not. His final response was that he did not communicate with her.
(c) Third, on his own version the complainant created a nuisance by hooting for about five minutes to get the attention of his children who were in the television and games room somewhere ‘behind’ and who were not enthusiastic about abandoning their activities to open the gate to greet their dad. The inference to have drawn from the fact that he was waiting for about five minutes for his unenthusiastic children to open the gate was that he became impatient to the point of hooting incessantly. It was common cause that the parties met for the first time when the altercation occurred. So there was no bad blood between them before. There was no evidence other than the nuisance created by his hooting that resulted in the altercation. The learned magistrate erred in inferring from his opinion of the character of the complainant that he was unlikely to have created the nuisance. Character evidence is generally inadmissible. In this instance reliance on it was wholly misplaced.
(d) Fourth, the complainant contended that the appellant should have raised his complainant with his landlord first who should then as the complainant’s neighbour have raised it with the complainant. Citing inappropriate authority the learned magistrate accepted the complainant’s opinion. As a general rule a landlord has an obligation to give its tenant peaceful occupation of the rented property. In this instance it was not the landlord but the complainant who was disturbing the appellant’s peace. As the appellant correctly pointed out the landlord had nothing to do with the dispute.
(e) Fifth, the complainant was motivated by revenge. No one clarified what he meant when he testified

‘it was when the person started handling me when a thought of revenge came and seeing my physical response when the gentleman left the property’.

He was not cross-examined as to whether he was motivated by revenge in prosecuting the appellant and what he was avenging. Revenge is not a legitimate reason for a prosecution. Surprisingly, the prosecution service allowed itself to be used for this purpose. Even counsel for the state failed to offer any reasons for opposing this appeal.
Nor was the complainant questioned about what his ‘physical response’ was and why it caused the appellant to leave the complainant’s property. Nothing from his evidence suggested that he had a ‘physical response’ other than getting out of the vehicle. However, it bolstered the defence’s testimony that he was beckoning the appellant to fight.

[21] The complainant’s evidence was so flawed that the appellant should have been discharged at the end of the state’s case. His evidence, which was not corroborated by any of his seven children who allegedly witnessed his embarrassment, was exaggerated, unreliable, unclear and unconvincing. In contrast to the state’s case the defence’s version, which was corroborated, presented as reasonably possibly true.

[22] I propose that the appeal be upheld and the conviction and sentence be set aside.

___________

D. Pillay J
I agree
_______________

Van Zyl J

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