The
appellant appeared before a magistrate at Bulawayo on 8 October 2014
charged with criminal insult as defined in section 95(1)(a) of the
Criminal Law (Codification and Reform) Act [Chapter 9:23].
He
was alleged to have unlawfully and seriously impaired the dignity of
Jothan Ndiweni by saying to him; “Go away, you are mad, your anus
and you are sick.” These words were allegedly uttered at
Highlanders Sports Club where both the appellant and the complainant
were discussing the results of a soccer match between Highlanders
Football Club and Dynamos Football Club. Highlanders Football Club
had lost the match to Dynamos Football Club. The complainant opined
that although Highlanders had lost, at least they had scored a goal.
This angered the appellant who then insulted the complainant in
Ndebele language saying; “fusteke,
uyahlanya, mdidi wakho, uyagula”,
meaning, “Go away, you are mad, your anus, you are sick.”
The
appellant pleaded not guilty but was convicted…,. He
then filed this appeal on the following ground:
“1.
That that the court failed to appreciate that the State had failed to
prove its case beyond reasonable doubt as accused gave a probable
reasonable explanation of what had happened on date of alleged
offence and this cast doubt on the case for the prosecution and was
thus entitled to an acquittal.”
In
his defence, the appellant had denied uttering the rest of the words
in the charge but accepted uttering the words “you are sick”. He
called one Sikhumbuzo Moyo as his witness. Sikhumbuzo told the court
that the complainant and the appellant were arguing over soccer
results when he heard the appellant saying to the complainant “you
are sick”. The complainant then queried why the appellant, who is
not a doctor, had said that. There was, according to him, “hot
exchange of words” and the complainant was clearly offended. Other
patrons restrained the complainant while Sikhumbuzo took him outside
so that he could calm down. The complainant then said he was going to
report the matter to the police since this was not the first time
that the appellant had insulted him.
The
State had led evidence from the complainant to the effect that, on
the day in question, he was at Highlanders Sports Club drinking beer
and discussing the outcome of a match played that afternoon. The
complainant then said although they lost the match, they had done
better in that they had managed to score a goal. The appellant then
spoke in vernacular words to the effect that; “Go away, you are
mad, your anus, you are sick.” The appellant repeated the words
several times and when requested by the complainant to withdraw them,
he flatly refused. The complainant felt humiliated and injured in his
person resulting in him making a report to the police. He denied that
he was so angry that he wanted to fight the appellant. Further, he
said both the appellant and himself are Highlanders supporters who
had known each other
for a long time.
The
second State witness was Partmore Ndlovu who was in the bar drinking
beer. While discussing football, the complainant said at least
Highlanders had managed to score and the appellant said to the
complainant “go away, you are mad, your anus, you are sick.” The
complainant was restrained and taken outside.
On
this evidence alone, the court a
quo
reasoned as follows:
“If,
indeed, accused had mentioned the words “you are sick” only, as
his defence witness would want the court to believe, why then did the
complainant get angry to the extent of wanting to fight? I
do not believe the version of this witness
and
the accused. It is clear from the evidence of the complainant and the
2nd
State witness that indeed accused mentioned words; “Go away, you
are mad, your anus, you are sick” and that angered the complainant
to the extent of wanting to fight the accused. I am satisfied that
the accused mentioned all those words.”…,.
Later
in its judgment, the court a
quo,
after examining a number of authorities on crimen
injuria
said that the words; “'Go away, you are sick', uttered in
Ndebele language well constitute an insult. They have a disparaging
meaning to society.”
This
latter reasoning suggests that the court convicted the appellant on
the basis that he simply uttered the shorter version of the phrase -
which version violates the section.
In
my view, this is confusing in that, earlier, the court had made a
finding that the appellant uttered the rest of the words. Be that as
it may, the court a
quo
did not, after assessment of the complainant's evidence and that of
the complainant's witness, conclude that such evidence, as the duo
gave, was credible, and that of the appellant and his witness,
incredible, improbable and beyond reasonable doubt false.
In
State v Van der Merwe 1990
(1) SACR 447, the court commented on the approach to be adopted in
evaluating and weighing the evidence adduced by the State and by the
defence as follows:
“The
proper test is that an accused is bound to be convicted if the
evidence established his guilt beyond a reasonable doubt and the
logical corollary is that he must be acquitted if it is reasonably
possible that he is innocent. The process of reasoning which is
appropriate to the application of the test in any particular case
will depend on the nature of the evidence which the court has before
it. What must be borne in mind, however, is that the conclusion
reached (whether to acquit or convict) must account for all the
evidence. Some of it may be found to be false, some of it might be
found to be unreliable but none of it may simply be ignored.”
Further,
in Mtshweni
1985 (1) SA 593, the court cautioned against drawing conclusions and
determination of guilt on the basis of the accused's untruthful
evidence or denial stating that:-
“The
conclusion that, because an accused is untruthful, he therefore is
probably guilty must especially be guarded against. Untruthful
evidence or a false statement does not always justify the most
extreme conclusion.
The weight to be attached thereto must be related to circumstances of
each case.”…,.
In
our jurisdiction, the locus
classicus
is S
v Makanyanga
1996 (2) ZLR 231 H where GILLESPIE J stated that:
“A
conviction cannot possibly be sustained unless the judicial officer
entertains a belief in the truth of a criminal complaint, but the
fact that such credence is given to testimony for the State does not
mean that conviction must necessarily ensue. Similarly, the mere
failure of the accused to win the faith of the Bench does not
disqualify him from an acquittal. Proof beyond reasonable doubt
demands more than that a complainant should be believed and the
accused disbelieved.
It
demands that a defence succeed whenever it appears reasonably
possible that it might be true.
This
insistence upon objectivity far transcends mere considerations of
subjective persuasion which a judicial officer may entertain towards
any evidence. The administration of justice would otherwise be the
hostage of the plausible rogue whose insincere but convincing
blandishments must prevail over the stammering protestations of the
truth by the diffident, frightened or confused victim of false
incrimination.” …,.
In
casu,
I take the view that since the evidence is equi-poised there is a
reasonable possibility that the appellant's defence might be true.
For that reason, the appellant's guilt has not been proven beyond a
reasonable doubt.
Accordingly,
it is ordered that:
1.
The appeal is hereby upheld.
2.
The appellant's conviction and sentence are hereby set aside.
