IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT. CAPE TOWN)

In the matter between:

JUDGMENT

VAN HEERDEN. AJ

Table View is a gated housing complex in which all of the persons involved in this matter and who gave evidence, save for the District Surgeon, resided. On 9 July 2009, and after a lengthy and protracted trial in which the State led the evidence of Mrs Schlebusch, who is the complainant, the evidence of Deidre Maitin, the evidence of Joseph Burger, the evidence of Jan Schlebusch (the complainant's husband) and the District Surgeon, Dr R C Whittaker. The appellant gave evidence without calling further witnesses.

It is clear from the evidence that Tuscany Villas is not a peaceful and happy place to live, and little, if any, harmony exist between the residents. There's a long and acrimonious history of conflict between the complainant on the one hand, and the Body Corporate on the other hand. It was also undisputed that Mrs Schlebusch, the complainant, set in motion two criminal charges against the appellant, which charges were not proceeded with. At the time of the hearing of this matter the Body Corporate had instituted proceedings against the complainant for an interdict. Appellant had filed an affidavit in support of the Body Corporate's case in this regard. Appellant had further instituted a civil case against the complainant for defamation and had further through her attorney demanded that the claimant apologise to her in a different matter for words that were said, when appellant apparently reversed into a vehicle belonging to the complainant's family. An apology was not forthcoming, but the matter was not taken further.
The defamation matter instituted and thereafter it was settled on the basis that the complainant would pay her own cost as well as R3 000 towards appellant's costs. There was further evidence of many other cases relating to the complainant, the Body Corporate and other members of Tuscany Villas. It was suggest that this amounted to some 18 in number.

It is not necessary to deal with the individual evidence of the State witnesses in any detail, save to state that in my view it was clear that the evidence given by the complainant and
Burger was so poor that no reliance can be placed thereon. The complainant's evidence in my view was contradictory, dishonest, aggressive and should be rejected.

Save for the District Surgeon the only State witness who attempted to give honest and objective evidence is that of Deidre Maitin, and she states as follows regarding the assault in her evidence in chief:
"Sy het vir Me Schlebusch by die arms gegryp. op haar arms gegryp en het vir haar, ek weet nie, ek kan nie se nie, of sy vir haar geruk het nie, maar me Schlebusch het agter toe geval."

At a later stage she says:

"Sy moes haar gehou het, ek weet net sy het vir haar net gehou en gelos, maar sy het toe agter toe geval."

Ms Maitin did say however that she did not actually see her push:

"Maar ek het dit nie gesien nie, wat u gese het wat haar -uit haar hande gehaal het en toe val die vrou? Ja, en toe val sy."

"It is trite that there is no obligation upon an accused person, where the State bears the onus "to convince the Court". If his version is reasonably possible true he is entitled to his acquittal, even though his explanation is improbable. A Court is not entitled to convict unless it is satisfied, not only that the explanation is improbable, but that beyond any reasonable doubt it is false."

In my view appellant gave a satisfactory explanation of what transpired. She stuck to her version and gave a clear and reliable account of events leading up to the incident and the incident itself. Her evidence relating to the false charges brought by the complainant against her was not disputed.

The deviousness of complainant is further evident from her evidence as to the serious extent of the injuries suffered by her as a result of a fall, when compared to the objective evidence given by Dr Whittaker, the District Surgeon, as to the minor nature of the injuries resulting from the fall.  In my view, and as stated previously, the evidence of complainant cannot be accepted in any respects. In my view appellant's version that when complainant approached her she warded her off with her hands, and that she did not fall as a result thereof and that complainant fell to the ground as alleged by her is reasonably possibly true, and I am not satisfied that the explanation given by her is so improbable that it is beyond reasonable doubt
false.

GOLIATH, J