How does a trivial dispute between neighbours over hooting at the gate become a matter for police arrest, overnight detention in cells, a trial and conviction? asks Carmel Rickard.

A high court judge who had to hear the matter on appeal has speculated that it must have been because of the racial undertones in the matter: this was the elephant in the room, suggested Judge Dhaya Pillay.

She and Judge Anton van Zyl delivered judgment last week in an appeal by Jason Munro of Winston Park, KwaZulu-Natal. He was convicted in what the high court concluded was “too trivial” a matter to have gone to court.

Also, the court found that the presiding magistrate wrongly convicted Munro: he should not have been convicted of assault, said the court, let alone sentenced to R3 000 or six months.

Munro and his girlfriend testified that their neighbour, identified only as Dr Ngcobo – he has a doctorate in industrial economics – arrived at about 5pm and “leaned on his hooter” at the gate at the complex.

Ngcobo said he hooted so one of his children would open the gate.

Munro said when the noise went on for some time he went to the driveway and asked Ngcobo whether he didn’t have a cellphone to call his children.

Ngcobo claimed Munro “knocked aggressively” on his car window. He (Ngcobo) then opened the door and “jumped out of the vehicle” to find out what Munro wanted. He claimed Munro insulted him and “accused him of making a noise”. Munro had sworn at him, said Ngcobo, threatened to hit him and manhandled him by “holding on his white shirt and coat”.

However, said Ngcobo, when Munro saw Ngcobo’s “physical response”, Munro left the scene.

The high court later speculated about what this “physical response” could have been that caused Munro to back off. Ngcobo had not been questioned about it during the trial, but it “bolstered” Munro’s testimony that Ngcobo was “beckoning (Munro) to fight”, said the court.

Munro’s version, backed by his girlfriend, was that they found Ngcobo’s “sitting” for a long time on his hooter that afternoon particularly irritating. But they denied that Ngcobo had been assaulted.

The high court found there had been no evidence of any “manhandling”, and that it was “an altercation”.

Judge Pillay said that for Ngcobo to say he had thoughts of “revenge” over the incident in which, at most, Munro “held him on his white shirt” was “manifestly a gross overreaction”. Furthermore, “revenge” was not a legitimate reason for a prosecution and the case should not have proceeded.

Ngcobo’s evidence did not hold up to scrutiny, he had become evasive and on his own evidence, he had blown the hooter for perhaps five minutes to get his “unenthusiastic children” to open the gate.

The court criticised the magistrate for having been in awe of Ngcobo and thus “blinded to the flaws in his evidence”.

Ngcobo’s evidence was in fact so flawed that Munro should have been discharged at the end of the State’s case, said the high court.

Underlying racial tension was clear in that Ngcobo referred to Munro as “a white boy”, while in fact Munro’s race was irrelevant.

If Ngcobo was seeking “revenge” for apartheid discrimination, she said, it would have been better if the dispute had been resolved by counselling or mediation. Prosecuting the case made things worse, creating more hurt, anger and distrust. The prosecution services should have refused to go ahead with such a trivial matter, and the magistrate should have refused to hear it. But will his acquittal bring an end to this “trivial” matter?

Long before the appeal, Munro was quoted in local newspapers telling the story of his arrest.

He was arrested late at night at his home, driven around for four hours and held overnight in police cells. Given the “trivial” nature of the dispute, he was considering legal action for wrongful arrest and detention, he said.

Re-reading the judgment this week, I noticed that the altercation took place in mid-February. That’s when the greater Durban area is hellishly hot and humid: just the right conditions to incubate bad temper and irritation.

Perhaps the weather played a role in the escalation of this matter. Was it, along with race, a second elephant in the room?

* Carmel Rickard is a legal affairs specialist. Email [email protected] or visit www.tradingplaces2night.co.za

** The views expressed here are not necessarily those of Independent Media.