“Ludicrous”, was how two judges described the story of an altercation at the Centurion Golf Estate.
The story is that when a woman tried to visit her ex-husband, she was subsequently charged and convicted of trespassing and assault after she was said to have driven over a security guard’s foot with her Range Rover.
The Gauteng High Court, Pretoria, cleared the name of Marlene van der Westhuizen, who was earlier convicted by a Pretoria magistrate on charges of assault and trespassing.
She was given a suspended sentence, but appealed her conviction before the high court.
The judges made it clear that she was treated unfairly as she neither trespassed nor assaulted anyone that day. To make matters worse, the magistrate who convicted her, added, as part of her sentencing, that she was unfit to possess a firearm.
This while Van der Westhuizen was in fact the victim of the firearm incident, as one of the security guards who was armed discharged a shot. She was never in possession of a firearm that day.
Van der Westhuizen represented herself in court during her criminal trial. Acting Judge L Barit, who wrote the appeal judgment, concurred by Judge Anthony Millar, said it was clear that as a lay person in law, she was out of her depth.
He said that the magistrate was mandated to assist her in what her rights were, but the magistrate never did. The magistrate, as per her legal duty, also did not assist Van der Westhuizen in obtaining legal counsel.
Apart from overturning the verdict against Van der Westhuizen, the high court also found that she had not had a fair trial. The judges said the trial and its proceedings were vitiated by irregularity.
Van der Westhuizen told the court that she had gone to the estate on June 30, 2019, to see her ex-husband. She did not have an access code but she had been let in by a guard, who had opened the visitors’ gate for her. She drove to her husband’s house in her silver Land Rover, but she could not gain access as his premises were locked.
When she wanted to leave, an altercation took place between her and an armed guard. While it is not exactly clear what happened, the guard produced a firearm and a shot went off. Nobody was injured.
The guards at the estate said Van der Westhuizen had gained entry by way of tail-gating another resident who had entered. They said that when they tried to confront her as she was leaving the estate, she had driven over the foot or toes of one of the guards, hence the assault charge.
Van der Westhuizen was adamant that she had not driven over anyone’s foot or toes. She also denied having trespassed. She said she had driven through the visitors’ entrance, where a guard had opened the gate for her as she did not have an access code.
It was later established that the gate was indeed opened at the visitors’ side for Van der Westhuizen to enter the estate. In this regard, Judge Barit said it was “perplexing that the magistrate herself states in her judgment that ‘trespassing involves being in someone else’s property without the necessary intention’”.
He said that as the guards had not opened the gates for Van der Westhuizen, she had not trespassed.
Regarding her assault conviction, he noted that the guard’s foot did not seem injured, as there was no evidence in that regard. The judge said one would expect some injuries if a heavy Land Rover had driven over one’s foot.
The court also questioned the fact that the State said there was video footage of what had happened that day, but nothing had been produced in court.
“The probability of the (foot) incident having occurred is remote … It must be noted that the whole incident, which eventually degenerated to a non-existent assault, smacks of fabrication,” the judge said.
He said that to make “the story even more ludicrous” in respect of being found guilty of trespassing, the evidence was that the gate had been opened for her by a security guard.
“Hence, it was the very security guard system that allowed the appellant into the estate.”
The judge added that Van der Westhuizen had had a valid reason to enter the estate, in order to visit her ex-husband. He said the facts of what had happened that day simply did not warrant her conviction.