About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 141
|
|
Mokoena v S (A277/2013) [2014] ZAGPJHC 141 (15 May 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
JOHANNESBURG
CASE
NO:
A277/2013
DATE:
15 MAY 2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
MOKOENA,
CHARLES
..........................................................................................................
Appellant
and
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
LAMMINGA
AJ:
[1]
The appellant, Mr Charles Mokoena was charged, along with Mr.
Abednigo Sipho Tempe, in the Regional Court for the Regional Division
of Gauteng held at Johannesburg on two counts; Rape and Kidnapping.
In the court a quo the appellant appeared as Accused 2 and
Mr Tempe
as Accused 1.
[2]
The appellant and his co-accused, who had legal representation
throughout the trial, pleaded not guilty to the charges on
06/11/2007.
On 04/06/2009 the appellant was convicted on both counts
and his co-accused was, at first convicted as charged (p362 lines 9 –
10) but then later at p362 line 16 – 17, convicted of attempted
rape and kidnapping on 04/06/2009. The appellant was sentenced
to 15
(Fifteen) years imprisonment on count one and 5 (Five) years
imprisonment on count two. His co-accused was sentenced to 5
(Five)
years imprisonment on each count. The court a quo ordered that 2(two)
years imprisonment on count two shall run concurrently
with the
sentences on count one.
[3]
On 25 November 2009 an application by the appellant for leave to
appeal was granted by the regional magistrate.
[4]
In this appeal the Appellant raised a point in limine and submitted
that the regional magistrate descended into the arena, therefor
the
appellant did not have a fair trial and the conduct of the regional
magistrate amounted to an irregularity warranting the conviction
be
set aside.
[5] The evidence for
the prosecution can be summarized as follows:
The
complainant testified that she had been drinking at 152 Tavern and
left in the company of other women at around 1h30. At some
point the
other women disappeared and the appellant and his co-accused
appeared, grabbed her and dragged her to appellant’s
home. She
was tired, did not fight as she had been drinking. Her son, tried to
intervene but he had to flee. At appellant’s
home, his
co-accused went to sleep and appellant had sexual intercourse with
her without her consent. Her son, later brought the
police to
appellant’s home while appellant was still busy having sexual
intercourse with her. She opened the door and the
appellant and his
co-accused were arrested. The second state witness, allegedly the
complainant’s son, stated that he saw
that the complainant was
being grabbed and tried to intervene by throwing stones at them, but
the appellant and his co-accused
took her to appellant’s home.
He brought the police to the said house and she opened for them. The
medical examination showed
no injuries.
[6] The Defence’s
version can be summarized as follows:
The
appellant and his co-accused met at Bafana Bafana Tavern. Appellant
offered his co-accused a place to sleep as it was late.
They had only
known each other for a few days, having met through a mutual friend.
They went to appellant’s home, but after
a few minutes
appellant asked his co-accused to accompany him. Appellant had met
the Complainant four days prior to the date of
the alleged offences.
Complainant had called the appellant that evening and requested him
to meet her at the said tavern. The two
men then went to 152 Tavern
where they found the complainant sitting with a man and they joined
her. The man eventually left. Appellant
and complainant were
chatting, and they shared drinks with her. Later the co-accused
requested that they leave and complainant
told the appellant she
would be going with him. As they were moving away from the tavern a
man, who the co-accused had noticed
before peeping through the window
at the 152 tavern, grabbed the complainant’s hand. This man
then started to swear at them,
eventually threatening them and
throwing them with stones as he followed them. Complainant told
appellant that this man was her
boyfriend. She went with them
willingly and was never grabbed or dragged by them. At the
appellant’s room, they all sat down
on the sofa, and shortly
after arrival the co-accused requested a bed and went to sleep on the
floor. Appellant and complainant
discussed having sexual intercourse
but she was menstruating and appellant did not have a condom so they
did not have sexual intercourse.
Later the police knocked on the door
and appellant opened for them. He was arrested and the police woke
his co-accused and arrested
him too.
[7] Let us now first
turn to the point in limine that the appellant did not have a fair
trail due to the regional magistrate descending
into the arena.
Trollip AJA laid
down three principles of proper judicial behaviour in
S v Rall
1982 (1) SA 828
(A), namely:
(i)
A judicial officer must ensure not only that justice is done but in
addition that it is seen to be done. He must therefore so
conduct the
trial that his open-mindedness, impartiality and fairness are
manifest to all concerned with the trial and its outcome,
especially
the accused.
(ii)
A judicial officer should refrain from questioning witnesses or the
accused in such a way or to such an extent that it may
preclude
him/her from detachedly or objectively appreciating and adjudicating
upon the issues.
(iii)
A judicial officer should refrain from questioning a witness or the
accused in a way that may intimidate or disconcert him/her
or unduly
influence the quality or nature of his/her replies and thus affect
his/her demeanour or impair his/her credibility.
These
principles have been applied in various cases dealing with the
conduct of a presiding officer during a trial and were recently
also
applied in
S v Musiker
2013 (1) SACR 517
(SCA).
[8] It was also
submitted that, the regional magistrate was biased or that there are
reasonable grounds to suspect bias on the part
of the regional
magistrate, due to the way he conducted the questioning. In
S v
Roberts
1999 (2) SACR 243
(SCA) at paragraph [32] Howie JA
stated the requirements for the test whether there is a reasonable
suspicion of bias as being:
“
(1)
There must be a suspicion that the judicial officer might, not would,
be biased.
(2) The suspicion
must be that of a reasonable person in the position of the accused or
litigant.
(3)
The suspicion must be based on reasonable grounds.”
[9] The un-judicial
approach in questioning the witnesses is evident as early as page 11
of the record, where the regional magistrate
seems impatient and
condescending to the complainant. At page 13 the court is clearly
exasperated with the complainant when she
states:
“
He
took his penis and inserted it on me.”
The court responds
with:
“
The
court does not understand what is on me? For God sake you are a 50
year old, man we must not struggle with you.”
This
impatience and condescending approach persists throughout the record
but is probably the least objectionable of the aggrieved
conduct.
[10] During
cross-examination of the State witnesses the following conduct is
found questionable:
There were several
instances where the Prosecutor raised objections and the Defence was
not given an opportunity to respond, before
the regional magistrate
made a ruling.
When the Defence
attorney tried to clarify contradictions between the complainant’s
evidence and what she told the police
in her statement regarding what
happened when the police arrived at the scene, and how it came about
that she took Appellants underwear,
the regional magistrate
interjected and ruled it irrelevant without allowing the defence
attorney to respond. The Defence attorney
was clearly trying to
establish why there was yet another contradiction as to the events of
the morning at the room of the Appellant,
but was not given the
opportunity to canvas the issue at all. It is significant that this
evidence was ruled irrelevant at that
stage, but the regional
magistrate allowed the evidence during examination in chief.
When the defence
attorney tried to put the appellant’s version to the
complainant as to what happened in the room, the court
interjected,
without justification and argued with the defence attorney about what
he wanted to ask. This altercation alone spans
5 pages of the record
and any confusion emanates from the initial interjections by the
court on page 40 of the record. This kind
of interruption appeared
repetitively throughout the record where the defence attorney tried
to cross-examine witnesses.
Where
the defence attorney tried to clarify issues such as what the
complainant meant when she testified that the appellant ‘was
still busy’, the court answered the question on behalf of the
complainant and stated “Let’s move on” without
allowing the witness to answer or giving any reason for not allowing
the witness to answer. This was repeated when the attorney
tried to
test her credibility when she stated that the doctor told her it was
clear that she had intercourse with a man.
[11] The regional
magistrate proceeded to subject the witnesses, including the accused,
to intensive questioning under the guise
of clarification. It is so
that there are some questions which were indeed legitimately put to
the witnesses; however the record
is replete with questions intended
to discredit or confuse the witnesses. This was specifically severe
in the case of the second
state witness, the witness in the
trial-within-a-trial, the appellant and the co-accused. In regard to
the second state witness,
A[…], the regional magistrate goes
so far as to question the credibility of the witness and say on page
162 of the record:
“…
you
call her a liar, after she brought you up she is a liar? You hear
people in Johannesburg telling you stories that old lady is
a liar is
that what you are saying? Is that what you are saying?...You are not
answering the Court’s question, go out the
box.”
In this instance the
parties were not afforded an opportunity to put questions to the
witness regarding issues raised during the
questioning by the
regional magistrate.
Cross examination of
the Co-accused by the prosecutor spans two and a half pages, but
questioning by the regional magistrate, nine
pages. The tone and
nature of the questions are clearly intent on discrediting the
witness. For example he starts off with:
“
COURT:
They wake you up you were still sleepy, you do not see anything, you
are still sleepy, half asleep. Is that your honest reply?
Is that
your honest reply sir?”
The nine pages of
questioning by the regional magistrate is brimming with instances
indicating that he was not merely clarifying,
but actively
cross-examining the witness. Again the Defence was not invited to
pose questions in regard to what the court had asked.
In regard to the
appellant the Regional magistrate spent 11 pages of the record
questioning him, at times being sarcastic –
for example, on
page 272, when asking what age the appellant thought the complainant
was, the regional magistrate was not satisfied
with the answer that
he did not know and remarked:
“
You
thought she was sweet sixteen?.........No you thought she was a
teenager”
Again,
this part of the record is rife with condescension, sarcasm and
conduct indicative of cross-examination rather than clarification.
[12]
During cross-examination of the appellant and his co-accused, the
defence attorney, who took over the case, tried to raise
objections,
for example, regarding the question of the instructions given to the
legal representative. The regional magistrate
cut him off and misled
him as to which accused alleged that he had a relationship with the
complainant and did not allow him to
put his point forward.
[13]
The regional magistrate allowed evidence on the relationship between
the complainant and the witness A[…], by the complainant
and
A[…], but when the defence wanted to challenge this evidence,
the regional magistrate ruled the relationship irrelevant
and denied
the defence this opportunity. Later he allowed a witness called by
the prosecutor on the issue of the relationship.
[14]
The regional magistrate clearly pre-judged the admissibility of the
statement the witness Mr. A[…] made to the police.
This is
apparent from him saying that the police when faced with a difficult
situation will take the easy way out and will say
they read back the
statement even if they did not. His apparent prejudice is
compounded by his insistence during the trial-within–a-trial
that the witness should have read back the statement, although the
witness testified that he explained the contents of the statement
to
the deponent. The regional magistrate questioned the police officer
at length on the fact that he did not read the statement
in English
to the witness, but explained to the witness what was written down.
The regional magistrate became argumentative during
the defence
address in regard to this issue, which argumentative and repetitive
condescending conduct spans 5 and half pages of
the record.
[15]
The skewed approach adopted by the regional magistrate when he
conducted the trial is also evident in the manner in which he
analysed the evidence. He found that the issue as to whether the
complainant is A[…]’ s mother or not is an
administrative
issue, but in the same breath relies on the
relationship of mother and son to justify probabilities that led him
to accept the
evidence of the state witnesses. The regional
magistrate bent over backwards to ignore the contradictions in the
evidence of the
complainant and A[…] but was quick to reject
the defence version as improbable without any substantial reasons to
do so.
[16]
In this case it is clear that the conduct of the regional magistrate
sustains the inference that, in fact, he was not open-minded,
impartial and fair during the trial. The nature, content and manner
of the questioning justifies a conclusion that it was a far
cry from
merely clarifying matters and specifically from the perspective of
the appellant and his co-accused, must have seemed
to be designed to
produce a result favourable to the State.
[17]
The language may in many instances be described as unjudicial
language that is readily susceptible to an interpretation that
the
regional magistrate was hostile to the appellant and his co-accused
to the extent that he was not able to bring an unclouded
mind to bear
on the adjudication of the issues before him.
[18]
Therefore, it cannot be said, objectively, that the regional
magistrate conducted the trial in such a manner 'that his
open-mindedness,
his impartiality and his fairness are manifest to
all those who are concerned in the trial and its outcome, specially
the accused'.
See
S v Rall
(supra).
[19]
A further concern in this matter, concerns the unwarranted
interruptions by the regional magistrate, which, taken in totality,
clearly undermined the fairness of the trial. The frequency, length,
timing, form, tone and contents of his questioning without
doubt
conveyed the opposite impression. The effect of this being that the
reasonable observer would perceive that the integrity
of the judicial
process must be called into question.
[20]
It follows that the regional magistrate’s transgression of the
limitations within which judicial questioning should occur
was
grossly unfair to the appellant and his co-accused and
infringed their right to a fair trial. This type of conduct has
the
potential to undermine the public's confidence in the courts.
[21]
It is so that the former co-accused of the appellant did not appeal.
However, I am of the view, having read the record, that
a gross
injustice would be perpetrated if we do not deal with his conviction.
As was stated in
S v Engelbrecht and
Others
[2005] ZAWCHC 11
;
2005 (2) SACR 383
(C):-
“
This
Court also has the inherent power to review proceedings in lower
courts at any stage, to restrain irregularities. This inherent
power
is augmented by s 35(3) of the Constitution of the Republic of South
Africa, 1996, which provides that every accused person
has a right
to a fair trial. It is, however, trite that the power of this Court
to review proceedings of a lower court
in terms of its inherent
jurisdiction, will be sparingly exercised.”
In
the interests of fairness and justice, this is a case calling out for
this court to review the magistrate’s decision. Accordingly,
this court’s inherent power of review is invoked.
[22]
In the light of what was said above, there is no need to deal
extensively with the merits of the case.
[23]
In summary, the complainant’s evidence was fraught with
contradictions and cannot be accepted. The version of the appellant
and his co-accused is more probable and reasonably possibly true.
Accordingly, I
propose the following order:-
The
appeal against the conviction is upheld and the conviction of the
appellant is set aside.
In
the exercise of this Court's inherent review jurisdiction the
conviction of Accused 1, Abednigo Sipho Tempe, is set aside.
The
record of the trial and this judgment be submitted to the
Magistrate’s Commission.
___________________
LAMMINGA
AJ
I
agree and it is so ordered:
___________________
WEINER
J
Counsel
for the Appellant: MILTER
Counsel
for the State: MPUNGOSE
Date
of Hearing: 13 May 2014
Date
of Judgment: 15 May 2014