THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 253/2013
Reportable

In the matter between

JOHAN IZAK FREDERICK PISTORIUS

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Pistorius v The State (253/13) [2014] ZASCA 47
(01 April 2014)

Coram:
Bosielo, Shongwe and Leach JJA

Heard:
13 March 2014

Delivered:  01 April 2014

Summary: Criminal appeal – conviction – the appellant convicted of
assault with intent to cause grievous bodily harm and crimen
injuria – trial court relied on the evidence of a single witness
– proper judicial approach – whether the court treated the
evidence with caution – whether the court below erred in
finding that the guilt of the appellant was proved beyond
reasonable doubt.

___________________________________________________________

ORDER
___________________________________________________________

On appeal from: The North Gauteng High Court, Pretoria (Erasmus and
Rauling JJ sitting as a court of appeal):

The appeal is dismissed.

___________________________________________________________

JUDGMENT
___________________________________________________________

Bosielo JA (Shongwe and Leach JJA concurring):

[1] In the afternoon of 26 December 2006, the appellant met with the
complainant on his farm. The appellant confronted the complainant and
asked him what he was doing on the farm whereupon the complainant
answered that he was a security officer. He then demanded his
identification documents and when the complainant failed to produce
these, he ordered him to leave the farm. The complainant exited the farm
but later the same day laid a complaint against the appellant with the
police at Vaal Police Station.

[2] Arising from these facts, the appellant was tried and convicted in
the magistrates’ court, Standerton, on charges of assault with intent to do
grievous bodily harm and crimen injuria. The two counts were taken
together for the purpose of sentencing and appellant was sentenced to a
fine of R5000.00 or twelve months’ imprisonment, half of which was

suspended on suitable conditions. An appeal followed by an application
for leave to appeal to this court failed in the court below. This appeal is
with special leave of this court. The appeal is against conviction only.

[3] The following facts appear to be common cause, or at least not in
dispute. The appellant was accompanied by two of his friends, Cronje and
Strydom, driving on his farm on the day in question. Two of Strydom’s
children were sitting at the back of his vehicle. As it was the holiday
period, he did not expect the complainant or any other person to be on the
farm. On seeing the complainant, he stopped his vehicle and interrogated
him as to the reason for his presence on his farm. The complainant
explained that he was a security officer. He did not believe the
complainant as the construction company that was working on his farm
had closed for the holidays. He demanded his identification and when the
complainant failed to produce it, he ordered him to leave.

[4] The State called two witnesses, the complainant and Dr Nyembe,
who treated him on 27 December 2007.

[5] The appellant testified that he was employed by a security
company called Vaal Rand Security, which was contracted by Murray &
Roberts to undertake security work on the appellant’s farm where they
were laying a large pipeline. On this day, he had just arrived on the farm
where he relieved his colleague, one Godfrey. One of his duties was to
patrol the farm as he had to secure machinery belonging to Murray &
Roberts. Whilst walking on the farm he met with the appellant who
confronted him and asked him what he was doing there as the contractors
had closed for the holidays. When he explained to him that he was

executing some security duties, the appellant remarked that ‘die kaffer
praat kak’. On being asked how he felt about these words, the
complainant replied that he felt that the appellant did not regard him as a
human being.

[6] At this stage, the appellant then alighted from his vehicle and
started to hit him with the butt of a rifle on his back.  When he realised
that he was being assaulted, he fled. The appellant chased after him with
his vehicle and bumped him several times, causing him to fall to the
ground. When he reached the gate, he pressed him with his vehicle
against the gate with his vehicle. He managed to jump over the gate when
the appellant reversed his vehicle. As he fled, he lost his bag, which,
amongst other belongings, contained his mobile phone.

[7] The complainant went to report the incident to the police at the
Vaal Police Station the same day. He subsequently consulted with Dr
Nyembe. He testified that he was injured on his back and left arm.
Furthermore, he explained that he was swollen and had open wounds for
which he was sutured and given some medication. He confirmed that he
received a J88 form from the police, which he handed over to the police
officer after the doctor had completed it as well as a sick note which he
gave to his employers. He did not know what the police had done with
the J88. He explained that he lost a copy of the doctor’s sick note in a fire
when his house burnt down.

[8] The complainant was subjected to a very lengthy and robust cross-
examination. Suffice it to say that except for a few instances (which I will
deal with later) he remained consistent and unshaken.

[9] The state then called Dr Nyembe, the medical doctor who treated
the complainant. I hasten to state that his evidence was left unchallenged.
Essentially, Dr Nyembe confirmed that he is a qualified medical doctor
with three degrees and that he examined the complainant on 27 December
2007. He described the injuries he observed on the complainant as huge
haematomas with severe or gross oedema at several and multiple
locations on the back. These locations were at the level of the scapula of
the right hand. Furthermore, he described a haematoma – a large
collection of blood – at the site of the injury.

[10] Dr Nyembe testified further that he observed weals on the
complainant’s upper back at almost the level of the shoulder but more
medial. He described a weal as similar to when a person has been dragged
with his face or his naked flesh on the ground, leaving areas slightly
open, others dark with blood, others completely closed and swollen with
the interstitial fluid. Importantly, he elaborated further that contusions are
areas where a person has been struck by some blunt force as opposed to a
sharp object like a knife.

[11] Commenting on the possible weapons which could have caused the
injuries on the appellant, Dr Nyembe opined that it could be a knobkerrie
or sjambok or a pipe or anything which will not perforate or cause the
skin to open. Although he was unable to state with precision what object
was used to assault the complainant, he opined that it was a blunt and not
a sharp object.

[12] Dr Nyembe remained firm and unshaken under cross-examination.
However, he conceded that it was difficult to determine the age of the

injuries but insisted that a blunt object had been used. He stated that from
a medical point of view, these injuries were serious because a person who
has sustained internal injuries of the nature similar to these may suffer
kidney failure, stroke or a mini stroke. He conceded that he did not make
any note of open wounds in his clinical notes. When asked pertinently if
the complainant had any open wounds on his left arm, he stated that he
never treated the complainant’s arms. However, he qualified his response
by stating that he cannot remember seeing wounds on the complainant’s
arm. He explained that this incident occurred almost two years
previously. However, he conceded that if he had sutured the
complainant’s arms, he would have noted this on his clinical notes.

[13] The appellant and his two witnesses testified. They told a different
story to that of the complainant. As the versions of the appellant and
those of his witnesses are similar, I will give a general tenor of their
evidence. Although admitting that they met the complainant on the
appellant’s farm in the afternoon of 26 December 2007 and that the
appellant asked the complainant what he wanted on his farm, the
appellant denied that he uttered the alleged words or assaulted him in any
manner whatsoever. The appellant testified that his conversation with the
appellant was friendly. He only requested him to leave his farm when he
failed to produce proof that he is a security officer as he doubted his
explanation. This is because he was not dressed in uniform and because
he did not know the complainant. However, he knew about the people
working for the contractors on his farm although he did not know them
personally. He knew that the contractors had closed for the holidays and
that all the workers had left for that reason. He did not expect to see the
complainant on his farm. He was never told that there would be people on

his farm to guard the property of the contractors. He never made any
independent enquiries to establish whether the complainant was a security
officer. He maintained that he never saw any property belonging to the
contractors on his farm.

[14] Importantly, he denied bumping the complainant with his vehicle.
His version is that the complainant left the farm on his own. When he
reached the gate, he jumped over it of his own volition. Whilst on the
other side of the gate, he was surprised to see the complainant dropping
his bag and running away. Out of curiosity, Strydom went and opened the
bag to see what it contained. He could find neither a security uniform nor
an identification card.

[15] In cross-examination, the appellant maintained that as it was the
26th December, he did not expect to see any person on his farm. He
confronted the complainant to verify why he was on his farm because
normally at time of the year (Christmas) they experience instances of
stock theft. Out of caution they chase people whom they do not know off
the farm. This is the reason why they chased the complainant away. The
appellant conceded that he never made any enquiries to verify if the
complainant was in truth a security officer.

[16] Both Strydom and Cronje testified as defence witnesses. As I
indicated earlier, except for admitting that the rifle in the vehicle was his,
Strydom’s evidence is the same as that of the appellant. The same holds
true for Cronje except that he stated that when they met the complainant
he did not see any injuries on him. They both denied any alleged

utterances of the words attributed to the appellant and any assault on the
complainant.

[17] The appellant’s counsel launched a two-pronged attack against the
judgment of the magistrate. The first leg is that the evidence of the
complainant being a single witness, ought to be approached with caution,
particularly as he had contradicted himself, and further that his evidence
is contradicted by Dr Nyembe. The magistrate erred in not doing so, or so
it was contended. Secondly, that the magistrate erred in rejecting the
appellant’s version which was fully corroborated by his two witnesses
and in circumstances where it was never criticised. The contention was
that, absent any criticism the regional magistrate had no reason to reject
it.

[18] The appellant’s counsel made much of the fact that the complainant
testified that he had open wounds on his arm which were sutured by Dr
Nyembe, whilst Dr Nyembe testified to the contrary. It was argued further
that the complainant lied when he said that he reported the incident to the
police the same day (26 December 2006) as the copy of the charge-sheet
reflected the CAS/CR/MAS/MR No as 01/01/07, the suggestion being
that this is the official date on which this case was registered by the police
for the first time. A rather tentative attack was made against the
complainant based on the fact that although he testified that he handed his
J88 to the police, it was never produced in court including a doctor’s note
which Dr Nyembe had given him for his employers. Based on this it was
submitted that the state’s version fell far short of the required standard of
proof beyond reasonable doubt on the count of assault with intent to

cause grievous bodily harm and that the appellant should have been
acquitted.

[19] Regarding the count of crimen injuria, counsel argued in the main
that the appellant’s denial should be accepted, more so that the
complainant had proved himself not to be reliable as a single witness. In
the alternative, counsel submitted that even if it can be found that the
appellant uttered the words complained of, the magistrate was wrong to
find that they amounted to crimen injuria as the words on their own are
not injurious and further that the complainant never stated explicitly that
he felt that his dignity was impaired, this being an essential element of the
charge.

[20] Although conceding that there were some inconsistencies in the
complainant’s version, read together with that of Dr Nyembe, counsel for
the state contended that these are not so material as to affect the probative
value of the complainant’s evidence; more so, if we take into account that
the complainant testified four years after the incident. Furthermore,
counsel submitted that the complainant’s version was amply corroborated
by Dr Nyembe, whose evidence proved that the injuries he observed on
the complainant were consistent with the manner of attack as described to
him by the complainant. In conclusion, he contended that, even if the
magistrate did not criticise the appellant and his witnesses, the inherent
probabilities of this case are over-whelming in favour of accepting the
State’s version over that of the appellant.

[21] On the count of crimen injuria, counsel contended that the words
allegedly uttered by the appellant are notoriously known and accepted,

given the painful history of this country, to be hurtful and injurious. He
submitted that the response by the complainant, that these words made
him feel as if he is not human, articulate the deep hurt and humiliation felt
by the complainant.

[22] Undeniably, the two versions contradict each other. It is trite that
the state bears the onus to prove the guilt of the appellant beyond
reasonable doubt and that there is no duty on the appellant to convince the
court of the truthfulness of any explanation which he gives. S v V 2000
(1) SACR 453 (SCA) at 455b.

[23] After having carefully evaluated the evidence as a whole, including
the inherent probabilities, the magistrates delivered a clear and well-
reasoned judgment. It is clear from the judgment that the magistrate was
alive to the important fact that the complainant was a single witness and
importantly, that there is a contradiction between his evidence and that of
Dr Nyembe regarding the injuries to his left arm. However, the magistrate
remarked, correctly so, that the complainant could not be disbelieved
solely due to this. On the contrary, the magistrate found that it would be
unfair to criticise the complainant on this as he was never confronted with
Dr Nyembe’s report so that he could have had an opportunity to reply
thereto or even explain it.

[24] The Constitutional Court stated the following about the importance
of cross-examination in President of the Republic of South Africa & others v South
African Rugby Football Union & others 2000 (1) SA 1 (CC) at para 61:
‘The institution of cross-examination not only constitutes a right, it also imposes
certain obligations. As a general rule it is essential, when it is intended to suggest that

a witness is not speaking the truth on a particular point, to direct the witness’s
attention to the fact by questions put in cross-examination showing that the imputation
is intended to be made and to afford the witness an opportunity, while still in the
witness-box, of giving any explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in cross-examination, the party
calling the witness is entitled to assume that the unchallenged witness’s testimony is
accepted as correct. This rule was enunciated by the House of Lords in Brown v Dunn
(1893) 6 R 67 (HL) and has been adopted and consistently followed by our courts.
… The rule in Browne v Dunn is not merely one of professional practice but ‘is
essential to fair play and fair dealing with witnesses’. [See the speech of Lord
Hershell in Browne v Dunn above]…
The precise nature of the imputation should be made clear to the witness so that it can
be met and destroyed… particularly where the imputation relies upon inferences to be
drawn from other evidence in the proceedings. It should be made clear not only that
the evidence is to be challenged but also how it is to be challenged. This is so because
the witness must be given an opportunity to deny the challenge, to call corroborative
evidence, to qualify the evidence given by the witness or others and to explain
contradictions on which reliance is to be placed.’

[25] Based on the salutary approach enunciated in and Sarfu’s case, I
agree with the regional magistrate.

[26] It is important to consider this fact against Dr Nyembe’s evidence
to the effect that he could not remember seeing the wounds on the
complainant’s arm as he testified two years after the event, implying that
he might have forgotten. Given the known fact that doctors are generally
busy, it is possible that Dr Nyembe saw many patients during those two
intervening years. It is therefore understandable that he might not
remember this incident particularly in the absence of the J88, which
would have contained the photographs which could possibly have shed
some light on the appellant’s injuries. To my mind, the fact that Dr

Nyembe cannot recall the open wounds on the complainant’s left arm
does not necessarily mean that the complainant is mendacious.

[27]  In any event it is trite that contradictions per se do not necessarily
lead to the rejection of a witness’ evidence. It is essential that proper
weight be accorded to the number, nature, importance and their bearing
on the other evidence. We are confronted here with a single incident. In
the light of the totality of the evidence and Dr Nyembe’s explanation,
which I find to be eminently reasonable, I do not regard this
inconsistency as so serious as to detract from the veracity and reliability
of the complainant’s version. S v Mkohle 1990 (1) SACR 95 (A) at 98E-
H.

[28] Importantly, the magistrate made positive credibility findings in
favour of the complainant despite the fact that he was a single witness. It
is clear from his well-reasoned judgment that he was aware of this fact.
He evaluated his evidence cognisant of the warning expressed in S v
Sauls & another 1981 (3) SA 172 (A) at p180C-H where Diemont JA
expounded the salutary approach to the evidence of a single witness as
follows:
‘In R v T 1958 (2) SA 676 (A) at 678 Ogilvie Thompson AJA said that the cautionary
remarks made in the 1932 case were equally applicable to s 256 of the 1955 Criminal
Procedure Code, but that these remarks must not be elevated to an absolute rule of
law. Section 256 has now been replaced by s 208 of the Criminal Procedure Act 51 of
1977. This section no longer refers to “the single evidence of any competent and
credible witness”; it provides merely that
“an accused may be convicted on the single evidence of any competent witness”.
The absence of the word “credible” is of no significance; the single witness must still
be credible, but there are, as Wigmore points out, “indefinite degrees in this character

we call credibility”. (Wigmore on Evidence vol III para 2034 at 262.) There is no rule
of thumb, test or formula to apply when it comes to a consideration of the credibility
of the single witness (see the remarks of Rumpff JA in S v Webber 1971 (3) SA 754
(A) at 758). The trial judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether it is trustworthy and whether,
despite the fact that there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the truth has been told. The cautionary rule referred to
by De Villiers JP in 1932 may be a guide to a right decision but it does not mean
“that the appeal must succeed if any criticism, however slender, of the witnesses’
evidence were well founded”
(per Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham
1955 (2) SA 566 (A) at 569). It has been said more than once that the exercise of
caution must not be allowed to displace the exercise of common sense.
The question then is not whether there were flaws in Lennox’s evidence – it would be
remarkable if there were not in a witness of this kind. The question is what weight, if
any, must be given to the many criticisms that were voiced by counsel in argument.’

[29] On the contrary, the magistrate found that the ‘accused version and
that of his witnesses is a made up story and is not reasonably possibly
true…’.

[30] It is a time-honoured principle that once a trial court has made
credibility findings, an appeal court should be deferential and slow to
interfere therewith unless it is convinced on a conspectus of the evidence
that the trial court was clearly wrong. R v Dhlumayo & another 1948 (2)
SA 677 (A) at 706; Kebana v S 2010 (1) All SA 310 (SCA) para 12. It
can hardly be disputed that the magistrate had advantages which we, as an
appeal court, do not have of having seen, observed and heard the
witnesses testifying in his presence in court. As the saying goes he was

steeped in the atmosphere of the trial. Absent any positive finding that he
was wrong, this court is not at liberty to interfere with his finding.

[31] It is true that the magistrate did not specifically point to any
contradictions in the defence version. However, it is clear that the
magistrate, in analysing and evaluating the evidence, considered the
inherent probabilities of the case. The magistrate found it highly
improbable that the complainant, after being confronted about his
unwelcome presence on the farm and being ordered to leave which he did
peacefully and without any altercation or fight, would, some few hours
thereafter, report at Vaal Police Station to lay a charge against the
appellant. Moreover, at the time when he had serious injuries to which Dr
Nyembe testified. This is inherently improbable, in my view.

[32] On the appellant’s version the only explanation for this would be
that another person had injured the complainant who then falsely decided
to blame the appellant who had done no wrong to him. And it becomes
even more improbable if not plainly preposterous, in the light of the
appellant’s version that he spoke with the complainant in a pleasant and
friendly manner that afternoon.

[33] Another unanswered question is: if the appellant did not assault the
complainant, why did the complainant run even after he had jumped over
the gate? The probabilities are strong that he had been assaulted by the
appellant and he still feared that this unlawful assault would continue
hence he had to run for his own safety. It is settled law that it is
permissible for a court, in determining whether the accused’s version is
reasonably possibly true, to look at the probabilities. S v V above.

[34] It is correct that the appellant was corroborated by both Cronje and
Strydom. However, sight should not be lost of the fact that both of them
are the appellant’s friends and they were having fun together that day. In
the circumstances, they can hardly claim or be seen to be impartial and
unbiased witnesses.

[35] Having had the benefit of reading the record, I cannot find any
fault with the reasoning and conclusion of the magistrate. The
probabilities are consistent with the finding that when the appellant and
his friend accidentally and unexpectedly came across the complainant on
his farm, they suspected him to be on the farm for some criminal
activities, became angry, confronted, insulted and assaulted him in the
manner described by the complainant. This is so because, according to the
appellant, the complainant was not supposed to be on the farm. This is
bolstered further by the fact that it appears that during this time of the
year, the appellant normally has problems with stock theft on his farm.
This suspicion must have weighed heavily with the appellant and his two
friends.

[36] Regarding the charge of crimen injuria, given the above facts, I
have no doubt that the appellant uttered the words complained of. In
direct response to a question about how he felt when this word was used,
the complainant retorted: ‘I felt as if I am not a human being’. This is
exactly what the appellant intended to do, namely to dehumanise,
denigrate and humiliate the complainant. I find that the magistrate was
correct to convict the appellant on this count as well.

[37] It is a well-known fact that these words formed part of the
apartheid-era lexicon. They were used during the apartheid years as
derogatory terms to insult, denigrate and degrade the African people of
this country. Similarly words like ‘boer’, ‘coolie’ and ‘bantu’, the word is
both offensive and demeaning. Its use during apartheid times brought
untold pain and suffering to the majority of the people of this country.
Suffice to say that post-1994, we, as a nation, wounded and scarred by
apartheid, embarked on an ambitious project to heal the wounds of the
past and create an egalitarian society where all, irrespective of race,
colour, sex or creed would have their rights to equality and dignity
protected and promoted. Our Constitution demands this. Undoubtedly,
utterances like these will have the effect of re-opening old wounds and
fanning racial tension and hostility.

[38] It is most unfortunate and regrettable that the appellant’s counsel
attempted to defend the use of such a vile word. It needs to be stressed
that in line with its ambitious and laudable national project of national
reconciliation, the government has taken bold steps to eradicate these
obdurate vestiges of the odius apartheid past. One of these steps is the
promulgation of the Promotion of Equality and Prevention of Unfair
Discrimination Act 4 of 2000, which seeks, amongst other things, to
prevent and prohibit hate speech. This resolve to deal with this problem
effectively is bolstered by the creation of specialised Equality Courts.

[39] Suffice to say that, given the enormous efforts we have taken as a
nation over the past 20 years to reconcile with one another, such
utterances have no place in the new South Africa with its vision of a non-
sexist and non-racist society founded on human dignity, equality and

advancements of human rights and freedoms for all (s 1 of the
Constitution). Such utterances should be visited with severe sentences.

[40] It follows that this appeal is devoid of any merits, and is therefore
dismissed.

_________________

L.O. BOSIELO

JUDGE OF APPEAL

Appearances:
For Appellant
:
P A Van Wyk SC

Instructed by:
Van Heerden Schoeman Attorneys; Standerton

Symington & De Kok, Bloemfontein

For Respondent
:
J J Kotze

Instructed by:

Director Public Prosecutions; Pretoria

Director Public Prosecutions, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

01 April 2014

STATUS

Immediate

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal.

Pistorius v The State (253/13) [2014] ZASCA 47 (01 April 2014)

1. The SCA today dismissed the appeal by the appellant against his convictions and sentence
imposed by the court below.

2. The appellant had been convicted of assault with intent to do grievous bodily harm and
crimen injuria. The state’s case is that the appellant whist driving in his bakkie on his farm met
the complainant who was walking on foot. As he suspected the complainant, he confronted
him and demanded to know why he was on his farm at that time. This happened on 26
December 2006. When the complainant explained that he was security doing patrol duties,
the appellant remarked to his two passengers that ‘die kaffer praat kak’. He then ordered him
off his farm. He then alighted from his bakkie and hit him several times with the butt of a
firearm.

3. In order to ensure that the complainant left his farm, he chased after him in his vehicle, and
bumped him several times, causing him to fall to the ground causing him some serious
injuries. At the gate, he pressed him against the gate with his vehicle.

4. The SCA found that the trial court was correct in finding the appellant guilty on both counts.
Furthermore, it found no misdirection regarding the sentence. The conviction and sentence
were confirmed.

5. The SCA has expressed grave concern about people who, 20 years into our nascent
democracy which is underpinned by a Bill of Rights still make such racist and derogatory. The
SCA remarked that in order to safeguard and protect the gains which we have made so far in
fostering racial reconciliation and harmony, such utterances should be visited with severe
sentences.

6. The appeal against conviction and sentence are dismissed.