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　　REPUBLIC OF SOUTH

　　AFRICA

　　IN

　　THE HIGH COURT OF SOUTH AFRICA

　　LIMPOPO DIVISION, POLOKWANE

　　CASE

　　NO: A99/2016

　　26/10/2017

　　Not

　　reportable

　　Not

　　of interest to other judges

　　Revised.

　　In

　　the matter between:

　　MAHLATSE

　　PATRIC

　　MONTLE                                                                        APPELLANT

　　And

　　THE

　　STATE                                                                                                   RESPONDENT

　　JUDGEMENT

　　SEMENYA

　　J:

　　Central

　　to the issues in this appeal is whether the trial court correctly

　　admitted and relied on the evidence of the doctor who

　　treated the

　　complainant, as recorded medical report commonly referred to as form

　　J88. Further, whether the state proved beyond

　　reasonable doubt that

　　it is the complainant was indeed assaulted, and if so, by the

　　appellant.

　　The

　　appellant was convicted on a charge of assault with intent to do

　　grievous bodily harm and was sentenced to twelve (12) months

　　direct

　　imprisonment wholly suspended for three years on condition the he is

　　not convicted of an offence of assault with intent

　　to do grievous

　　bodily harm during period of suspension. The appeal is with leave of

　　the trial court.

　　The

　　evidence tendered by the State during trial was that the complainant

　　and one Kagitso were suspected by the latter’s

　　uncle of

　　stealing two televisions. On the date of the incident, Kagitso came

　　to the complainant with his uncle and another person.

　　He was

　　informed that Kagitso admitted that the two have stolen the uncle’s

　　television.

　　Both

　　Kagitso and the complainant were subsequently handed over to police

　　officers who took them to the police station. It was

　　at this police

　　station that he met with the appellant. When the complainant

　　maintained his innocence, the appellant assaulted

　　him with a

　　sjambok, open hands and kicked him with booted feet. He also covered

　　his face with a plastic bag.

　　The

　　appellant told the complainant that he will continue to hit and to

　　cover him with a plastic bag and eventually kill him if

　　he continues

　　to deny that he took the televisions. According to him, he, the

　　appellant, hit him more than hundred times. He was

　　injured on his

　　body and private parts and bled from some of the injuries.

　　In

　　the morning, he and Kagitso were taken to the hospital for treatment

　　of the injuries that he sustained. The doctor who treated

　　him

　　completed J88 form on which he had noted the injuries he had

　　observed.

　　Cross-examination

　　of the complainant was mainly on his identification of the

　　appellant. The complainant maintained that although

　　he did not know

　　him by name, he was able to recognize him as he knew him by sight.

　　It

　　transpired that the doctor who treated the complainant and completed

　　J88 form could not testify due to the unavailability of

　　a Spanish

　　speaking interpreter. The court dismissed an application for

　　postponement after the doctor and interpreter failed to

　　attend. Form

　　J88 was handed in and admitted as evidence at the instance of the

　　defence.

　　The

　　appellant testified that he was on duty at the police station on the

　　date of the incident. He interviewed the complainant

　　and Kagitso.

　　Kagitso admitted that he stole the television. The complainant

　　denied the allegations against him. The appellant

　　denied that he

　　assaulted the complainant in any manner.

　　The

　　defence contended that J88, though admitted, has no evidential value

　　in view of the fact that the doctor who examined the

　　complainant is

　　not conversant with the English language. It was submitted that the

　　court ought to have arrived at a conclusion

　　that this J88 form was

　　completed by someone other than the doctor who treated the

　　complainant.

　　 In

　　rejecting the defence’s contention, the magistrate found that

　　form J88, which was accompanied by affidavit in terms of

　　section

　　212(4) of the CPA, constitute prima

　　facie

　　proof of the facts contained therein. The magistrate stated further

　　that the defence did not object to its admission as evidence.

　　The

　　magistrate concluded that the fact that the doctor could not take an

　　oath in English does not automatically mean that he

　　could not

　　communicate with patients examine them and make a finding.

　　The

　　issue of the probative value of form J88 was raised again on appeal.

　　It was contended that the magistrate’s reliance

　　on J88 form

　　constitute a misdirection on her part.

　　Counsel

　　for the respondent submitted that apart from stating what he has

　　observed on the patient in words, the doctor further

　　indicated the

　　position of the injuries on schematic drawings attached to the J88

　　form. Mr Chidi could not deny that the original

　　J88 form does have

　　these schematic drawings on which such injuries were recorded. The

　　doctor’s conclusion is recorded as

　　‘multiple eritomatous

　　marks and bruises on the chest and 4 limbs’.

　　In

　　S

　　v Kwezi (C),

　　Jones J summed up the legal position with regard to the manner in

　　which courts are supposed to approach the evidence contained

　　in J88

　　as follows:

　　“When

　　the request (for

　　the oral evidence of a doctor) is

　　made by a legal representative, the court is inclined to call the

　　doctor, unless it is clear that the request is frivolous or

　　that no

　　good purpose could possibly be served by calling the doctor. On the

　　other hand, when the request is made by an unrepresented

　　accused, the

　　court should enquire whether the accused is prepared to disclose what

　　it is that he wishes the doctor to deal within

　　evidence. If it

　　appears that the doctor may be able to be of further assistance in

　　the matter, and particularly if the court is

　　contemplating to use

　　what the doctor has recorded in the affidavit or certificate for the

　　purpose of drawing inferences that have

　　not been spelt out in the

　　affidavit or certificate by the doctor, the court should, in terms of

　　section 212(12), either prepare

　　written interrogatories for the

　　doctor, or have the doctor called as a witness.” (my

　　own addition).

　　Counsel

　　for the respondent contended that J88 form was admitted with the

　　appellant’s consent and that the legal representative

　　of the

　　respondent did not request the court to invoke the provisions of

　　section 212(12). It is correct, as argued by counsel

　　for the

　　respondent that the record shows that the prosecutor was reluctant

　　to hand in J88 without calling the doctor. It is further

　　evident

　　that Mr Chidi pressurized the prosecutor into handing the document

　　in. He cannot thereafter complain about the magistrate’s

　　reliance on the said document.

　　It

　　was held in S

　　v Veldthuizen (A)

　　that form J88 that is compliant with the requirement laid down in

　　section 212(4) is prima

　　facie

　　proof of the facts contained therein. It is trite law that such

　　evidence, if left unchallenged, becomes conclusive proof.

　　It

　　was further contended on behalf of the appellant that the

　　complainant was charged on the morning following the night of the

　　alleged incident. The police officer who completed a document, on

　　which the complainant’s rights were explained, noted

　　that

　　there are no injuries on him. It was submitted that the magistrate

　　should have found this to be evidence that negatively

　　impacted on

　　the complainant’s credibility.

　　The

　　evidence presented before the magistrate was that the deceased was

　　assaulted during the night.  He was charged with theft

　　of a

　　television in the morning. The evidence that the complainant was

　　thereafter transported to the hospital for medical examination

　　was

　　not disputed. The magistrate’s finding that the injuries as

　　recorded on J88 are consistent with the complainant’s

　　evidence

　　cannot be faulted. The submission that the magistrate ought to have

　　found that the injuries are not compatible with

　　the severity of the

　　assault as deposed to by the complainant is without basis.

　　 The

　　magistrate’s finding that the complainant exaggerated the

　　severity of the attack is found to be proper. This exaggeration

　　alone does not justify an inference that the complainant is a liar.

　　The magistrate concluded that what the complainant meant

　　was that he

　　was assaulted several times.

　　It

　　incorrect that the magistrate failed to apply caution to the

　　evidence of the complainant who was a single witness. The

　　magistrate’s

　　findings that the complainant was a credible

　　witness who did not waver during cross-examination is valid and in

　　line with the

　　totality of the evidence presented before her.

　　The

　　guiding principles on an appeal against sentence are the following:

　　a.

　　Punishment

　　is pre-eminently a matter for the discretion of the trial court;

　　b.

　　The

　　appeal court should be careful not to erode such discretion;

　　c.

　　The

　　sentence should only be altered if the discretion has not been

　　judicially and properly exercised’ or where the sentence

　　is

　　vitiated by irregularity or misdirection or is shockingly

　　inappropriate.-S

　　v Rabie (A).

　　I

　　am unable to find any misdirection on the part of the trial court.

　　There is no reason for interference.

　　 

　　I find that the

　　appeal has no merits and stands to be dismissed.

　　I

　　propose the following order:

　　21.1 The appeal is dismissed.

　　 

　　 

　　                                                                                   

　　M.V

　　SEMENYA       

　　JUDGE OF THE HIGH COURT

　　 

　　I

　　agree

　　                                                                                   

　　G.C

　　MULLER

　　JUDGE OF THE HIGH COURT

　　 

　　APPEARANCES

　　Attorneys for the Appellant           

　　: Mammule Chidi Inc.

　　Counsel for the Appellant             

　　: Adv. Chidi M.P

　　Attorney for the Respondent        

　　: DPP

　　Counsel for the Respondent        

　　: Adv. Kotze

　　Date of

　　hearing                            

　　: 08 September 2017

　　Date of

　　Judgement                      

　　: 27 October 2017