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[2011] ZAGPJHC 22
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Masondo v S In re: S v Mthembu and Others (2011 (2) SACR 286 (GSJ)) [2011] ZAGPJHC 22; SS 50/2009 (15 February 2011)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
REPORTABLE
CASE NO: SS 50/2009
DATE: 15/03/2011
In the matter between:
MASONDO,
SICELO
...........................................................................
Applicant
and
THE
STATE
........................................................................................
Respondent
In re:
THE STATE
and
NKOSINATHI MTHEMBU
Accused 1
SICELO MASONDO
Accused 2
CHAMPION LEBOGANG MALATSI
Accused 3
______________________________________________________________
APPLICATION BY ACCUSED 2 FOR DISCHARGE IN TERMS
OF SECTION
174 ACT 51
OF 1977 IN RESPECT OF COUNTS 8 AND 9
______________________________________________________________
KGOMO, J:
[1] Accused 2 together with his two co-accused stand arraigned in
this Court on nine (9) charges, namely one count of murder,
six (6)
counts of robbery with aggravating circumstances, one count of
unlawful possession of firearm(s) and one count of unlawful
possession of ammunition.
[2] The unlawful possession of firearms in Count 8 and Count 9 is
unlawful possession of ammunition.
[3] These last two mentioned charges related to the confiscation by
the police of an unlicensed firearm and ammunition at one
Themba
Dladla’s residence on the night of 7 October 2008. The firearm
was found hidden inside an operational DVD recorder.
[4] At the closure of the State’s case accused 2 is now
applying for his discharge in terms of
section 174
of the
Criminal
Procedure Act 51 of 1977
, submitting that there is no
prima facie
case linking him to Counts 8 and 9.
[5] It is common cause that the State led evidence against accused 2
on these two counts through three (3) witnesses, namely,
Themba
Dladla Inspector Joubert and Inspector Erasmus.
[6] Accused 2’s argument is that there is no evidence linking
him to both counts, alternatively, that if there is evidence
alluding
to him having been in possession of a firearm and ammunition on the
night of 7 October 2008, then it was of such a poor
quality that it
would be an injustice to expect him to remain standing in jeopardy or
on trial on the two counts.
[7] Both counsels (for the State and accused 2) have favoured this
Court with Heads of Argument for and against this application
and I
am indebted to both of them for the help they provided. The only
unfortunate point is that the Heads reached me later than
the agreed
upon dates and I could thus not read them before
viva voce
arguments were advanced in court.
[8] For the record, the
accused’s Heads of Argument ought to have reached me by the end
of the day on Wednesday 9 February
2011 but could only do so on
Friday 11 February 2011 at around 15h30. The State’s responses
ought to have been in by Friday
11 February 2011 but could only be
handed in today (Monday 14 February 2011) at 09h50, which is the date
of arguments and same
should have started at 10h00.
[9] After arguments and
submissions I was consequently forced to stand the matter down until
15 February 2011 and at 09h45 for
a ruling.
[10] The witness Themba
Dladla was duly warned in terms of
section 204
of the
Criminal
Procedure Act before
he testified.
[11] It is further
common cause that evidence relating to these charges was led in the
trial-within-a-trial to determine the admissibility
of pointing out
made by accused 2. The material evidence was led on behalf of the
State through Inspectors Joubert and Erasmus.
[12] According to
Inspector Joubert, after arresting accused 1 and 3 in connection with
this matter at Erasmia Police Station he
followed information gleaned
from accused 1 herein and drove to Themba Dladla’s home at
Diepsloot. He was a passenger in
Inspector Erasmus’s white
Volkswagen Polo with accused 1 and 3 as the only other passengers.
There were other police vehicles.
[13] They found Themba
at home and he agreed to take them to accused
2’s
home. At accused 2’s home they broke down the door to accused
2’s shack and arrested him.
[14] During his arrest the police asked about the firearm and
accused 2 told them it was at Themba’s place. They drove
back
to Themba’s home where in the presence of accused 2 Themba took
out a 9 mm Norinco pistol with ammunition out of a DVD
player which
was still in good playing order.
[15] Inspector Erasmus corroborated Inspector Joubert’s
version hereon.
[16] Themba Dladla’s evidence was that accused 2 came to his
home on 29 September 2008 and asked him to keep a firearm for
him.
He ultimately agreed and a 9 mm Norinco pistol was secreted inside or
at the back of a DVD player after the screws were loosened.
After it
was put there the back was only closed but the screws were not
screwed back. The DVD continued working despite this foreign
object
inside it. Accused 2 promised to come and fetch it at a later stage.
No time frame was discussed.
[17] On the early morning of 8 October 2008 the police arrived at
his home looking for his sibling, one Thokozani. He allegedly
told
them he did not know where he was at that stage. The police then
drove with him to accused 2’s place where the latter
was
arrested. The issue of the firearm came up and according to this
witness accused 2 told him (Themba) to give same to the police.
He,
accused 2 and the police then drove back to Themba’s home where
at accused 2’s bidding he removed the Norinco
pistol from the
DVD player and handed it to the police.
[18] Themba’s evidence was that the firearm was specifically
handed over to two (2) black police officials but that there
were
also white policemen around.
[19] Cross-examination of this witness centred mostly on the fact
that he and accused 2 were enemies because the latter had enticed
or
taken a girlfriend away from him. Themba denied this.
[20] In his defence accused 2 reiterated that when the firearm was
retrieved from Themba’s home he was not in the room where
it
was found.
[21] Inspector Erasmus’s version on this aspect is that they
decided to return to Themba’s home to retrieve the firearm
because when he interviewed accused 2 at his home he stated to him
that the firearm was at Themba’s place.
[22] Accused 2’s story was also that he did not lead the
police to Themba’s home. However, when counsel for the defence
for accused 2 questioned Inspector Erasmus he put it to him as
follows:
“ … Sir, when you left Erasmia Police Station heading
for Diepsloot, you were not looking for Accused 2 at the time.
You
only started looking for him after meeting Themba. ”
[23] Adv Dikolomela proceeded immediately to ask the following
follow-up question when Inspector Erasmus responded by saying
Inspector Joubert would know that and that he heard that Sicelo
(accused 2) was the wanted person:
“
You only started looking for Accused 2 after Themba said
both of them were involved in the handling of an unlicensed firearm …
”
To which Inspector Erasmus said the interview with accused 2 took
place inside his room and he was standing some distance at the
threshold or mainly outside and did not hear the contents of the
interview.
[24] The State strongly argued for the dismissal of this application
for discharge in terms of
section 174
while the accused submitted
that the probabilities of people who were not friends and who had a
bone to crunch over a woman would
not trust each other with the
safekeeping of an unlicensed firearm. State counsel further argued
hereon that the issue of probabilities
did not belong to the stage of
section 174
application but at the end of the trial.
[25]
Section 174
of the
Criminal Procedure Act reads
as follows:
“
174. Accused may be discharged at the close of the case
for the prosecution
.
If at the close of the case for the prosecution at any trial, the
court is of the opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict
of
not guilty.
” (my underlining)
[26] The words “
no evidence
” in the section have
been interpreted to mean:
“ … no evidence upon which a reasonable court or man
acting carefully may convict. ”
Compare:
S v Khanyapa
1979 (1) SA 824
(A) at 838.
S v Mpetha
1983 (4) SA 262
(C) at 263H.
S v Swartz and Another
2001 (1) SACR 334
(W).
[27] It is common cause that where an accused is charged with
multiple charges, the court may discharge him on one or more of
those
charges if there is no evidence on them at the close of the State
case.
See:
S v Manekwane
1996 (2) SACR 264
(O).
[28] However, where more than one accused are charged with the same
offence(s) the court may discharge him on one or more of those
charges if there is no evidence connecting him or referring to him or
if it is in the interests of justice to do so.
[29] Similarly, where the only evidence or evidential material on
record against an accused person at the end of the State case
is an
informal admission made by the accused while pleading not guilty,
such does not amount to evidence and the court may,
mero motu
or upon application by such accused, discharge him in terms of
section 174.
See:
S v Mashele
1990 (1) SACR 678
(T).
[30] In our case the accused did not disclose the basis of his
defence and as such the issue of admissions during the pleading
stage
does not arise.
[31] Another aspect raised in the arguments is whether the
credibility of witnesses should play a part at this stage of the
proceedings.
The defence (accused 2) submitted that credibility
definitely plays a part. On behalf of the State it was submitted and
argued
that although credibility may play a part, at this stage its
role should be a limited one.
[32] In
S v Mpetha (supra)
it was held that credibility
would play a very limited role and evidence led ignored only if it is
of such a poor quality that
no reasonable person could possibly
accept it.
[33] There was a difference of opinions in several other judgments
of various courts about this aspect: In
S v Kritzinger
1952
(2) SA 401
(W) as well as in
S v National Board of Executors Ltd
and Others
1971 (3) SA 817
(1) at 819 and
S v Dladla and
Others (2)
1961 (3) SA 921
(D) the courts ruled that even where
the evidence at the end of the State case was not such that a
reasonable person might convict,
the court was still entirely
justified to refuse to discharge an accused if it is of the view that
there is a possibility that
the case for the State may be
strengthened by the defence case. The above view was crystalised in
S
v Shuping and Others
1983 (2) SA 119
(B).
[34] On the other end of the spectrum in
S v Mall
1952 (2)
SA 401
(W) it was held that it is wrong to place an accused on his
defence in circumstances similar to those sketched out in
Kritzinger,
National Director of Executors, Dladla
and
Shuping
and
thereby expose him or her to the risk of incrimination on his own or
by a co-accused.
[35] In
S v Lubaxa
2001 (4) SA 1251
(SCA) the Supreme Court
of Appeal held among others that where there is a single accused and
there is, at the close of the case
for the prosecution no possibility
of a conviction unless the accused testifies in a self-incriminatory
manner, the failure to
discharge (if need be,
mero motu
by the
court) is a breach of the constitutional guarantee of fairness which
will usually lead to the setting aside of the conviction
(if it
eventually ensues) which would have been based solely on the
self-incriminatory evidence.
[36] In this case we are not dealing with a single accused. There
are three of them.
[37] In terms of
section 174
there is no obligation on the court to
discharge an accused. There is a competence to do so. The court is
called upon to act judicially,
with sound judgment and in the
interests of justice. A judicial officer may be advised not to place
too much stress or emphasis
on the say-so or decisions of other
judges in previous cases
per se
. The facts and circumstances
of each case should dictate what route to follow and the judge should
be led to an equitable, proper
and/or just end result by the specific
circumstances and evidence inherent or led in the case as coloured
and/or informed by recognised
rules, practices, laws and procedures.
[38] It was held in
S v Lavhengwa
1996 (2) SACR 453
(W) that
processes under
section 174
translate into a statutorily granted
capacity to depart discretionarily in certain specific and limited
circumstances from the
usual course a case should take: It is meant
to cut off the tail off a superfluous process. Such a capacity does
not detract from
either the right to silence or the protection
against self-incrimination. If an acquittal flows at the end of the
State case,
the opportunity or need to present evidence by the
defence on the charge(s) in issue falls away. If discharge is
refused the accused
still has the choice whether to testify or close
his case on the charge(s) in issue. There is no obligation on him to
do either.
Once the court rules that there is no
prima facie
case against an accused, there also cannot be any negative
consequences as a result of the accused’s silence in this
context.
Compare:
S v Chogagudza
1996 (3) BCLR 429
(ZC).
[39] There is no need to lay down rigid or fixed rules in advance
for an infinite variety of factual situations which may or
may not
arise. It is thus also unwise to attempt to banish issues of
credibility in the assessment of issues during
section 174
proceedings or confine judicial discretion to “
musts
”
or “
must nots
”.
[40] That is the reason why in later decisions of the courts,
notably,
S v Mathebula and Another
1997 (1) SACR 10
(WLD) at
35e;
S v Ndlangamandla and Another
1999 (1) SACR 391
(W) and
S v Motlhabane and Others
1995 (2) SCR 528
(B) the general
consensus was that where there is no evidence upon which a court
acting carefully and properly exercising its discretion
may or might
convict, then a discharge may follow,
mero motu
or on
application.
[41] In this application it is common cause that evidence was led in
court for the State and for the defence. Consequently, we
are not
dealing with a situation where no evidence was led. Both the State
and the defence made use of their right of cross-examination
and
attacked the versions of their adversaries. At the end of the day,
there are two versions before this Court on the issues relating
to
Counts 8 and 9.
[42] The defence is asking this Court to resort to the probabilities
at this stage while the State argued that this is an aspect
that
should be left for final closing arguments.
[43] What is of concern to this Court relating to accused 2 and
Themba Dladla is why the police did not demand the firearm directly
from Themba when they arrived at his home. Furthermore, if Themba did
not lead them to accused 2’s home, why did they drive
directly
to it after picking up Themba. What made the police decide to go and
collect the firearm from Themba’s home after
accused 2 was
arrested? According to Inspector Joubert it was the interview with
accused 2 in the presence of Themba that led
them back to the
latter’s home where the firearm was produced.
[44] The gist of the matter herein is that as opposed to situations
where there is no evidence on record against accused 2 relating
to
Counts 8 and 9, in this case there is indeed evidence led against him
which, if found to be cogent and credible, may amount
to
prima
facie
case against him. I must make it clear that I am not
saying the accused’s guilt on these two counts have been proved
beyond
a reasonable doubt. I am saying the evidence led, when
juxtaposed to the forensic evidence and the evidence of pointing out
which
has already been accepted against accused 2 is such that it
calls for a reply.
[45] The evidence further, is such that it will have to be evaluated
holistically, taking all probabilities and surrounding circumstances
into account.
[46] Such a stage where probabilities come into reckoning in my view
and finding has not yet been reached. That stage belongs
at the end
of the trial. The accused has every right to close his case on these
counts if he believes the evidence thereon is
of such a poor quality
that a reasonable court, acting carefully, cannot convict thereon.
[47] Under those circumstances this Court would then evaluate the
totality of the evidence led, that is, the entire State case
and the
entire defence case and then apply the probabilities and
preponderances inherent therein or emanating therefrom.
[48] I should mention here that in arriving at the decision and
finding herein I have taken into account the demeanours and
credibilities
of all the State witnesses and accused 2.
[49] As a consequence it is my considered view and finding that
accused 2 cannot be granted a discharge in terms of
section 174
in
respect of Counts 8 and 9 at this stage.
[50] The application for discharge in terms of
section 174
by
accused 2 is therefore refused and dismissed.
_____________________________
N F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
FOR THE STATE : ADV D BARNARD
FOR ACCUSED 2 : ADV T L DIKOLOMELA
DATE OF APPLICATION : 14 FEBRUARY 2011
DATE OF RULING : 15 FEBRUARY 2011