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[2015] ZAGPJHC 130
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Khumalo v S (A367/2014) [2015] ZAGPJHC 130 (29 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(SOUTH GAUTENG LOCAL
DIVISION, JOHANNESBURG)
Case number: A367/2014
DATE: 29 MAY 2015
In the matter between:
JUNE
KHUMALO
............................................................................................................
APPELLANT
Versus
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Date of hearing: 25 May 2015
Judgment: 29 May 2015
A.M.L. PHATUDI, J
[1] Appellant was originally one of two
accused persons charged with contravention of the provisions of
section 36 of the general
Law Amendment Act 62 of 1955. (Possession
of stolen property). At the commencement of the trial a quo, the
charge against accused
2 was withdrawn.
[2] The appellant, who was legally
represented, pleaded guilty. The appellant’s legal
representative read on record the appellant’s
statement in
terms of section 112 (2) of the criminal Procedure Act 51 of 1977.
Immediately thereafter, the appellant stated the
following:
‘Accused: No, Your Worship I was
not aware that it was wrong and punishable by law…’ The
presiding magistrate
entered a plea of not guilty as envisaged in
terms of
section 113
of the
Criminal Procedure Act 51 of 1977
.
[3] The appellant was convicted as
charged and sentenced to 5 (five) years imprisonment. He was further
declared unfit to possess
a firearm in terms of
section 103
(1) of
Firearms Control Act 60 of 2000
. The court further granted an order
for the immediate search and seizure of all competing certificates or
licences and or authorisation
issued to the appellant, all firearms
in his possession and all ammunition in his possession.
[4] Leave to appeal against both
conviction and sentence was granted on petition to the Judge
President of this Court.
Ad Conviction
[5] The state called only one witness,
w/o Mosalingwe who testified that he received information about a
stolen motorbike. He, with
the aid of the informer, managed to trace
its where-about. He proceeded to the appellant’s shack. He
knocked at the shack
and informed the occupant of the shack who he
was. He then heard a noise coming from the back of the shack. On his
inspection,
he found the appellant trying to escape. The shack was
then opened. He found the motorbike inside the shack. There was no
one inside
the shack other than the appellant. He later contacted the
owner who confirmed that the motorbike was hers. The owner of the
motorbike
informed him that when she (owner) went to sleep, the
motorbike was locked in a garage.
[6] The appellant testified that on the
13 June 2013 around 12h48, one Rasta brought to him the motorbike and
requested him to fix
its carburettor. In the morning of 14 June 2013,
the police arrived at his shack and enquired if Jabu was with him in
the shack.
He told them that Jabu is at his homestead (Jabu happens
to be Jacob Tshabalala, who was his co-accused). He denied having
tried
to escape from the back of the shack. The appellant further
testified that he did not know that the motorbike was stolen. He
remained
firm to his version notwithstanding a robust cross
examination by the state.
[7] It is trite that the state must
prove its case beyond a reasonable doubt. It is further trite that if
the accused version is
reasonably possibly true, he/she must be
released.
[8] The state called only one witness.
The warrant officer testified on how he found the motorbike in the
appellant’s shack.
The appellant conceded that the motorbike
was found in his possession but did not know that it was stolen. The
appellant denied
having tried to escape through the back of the
shack.
[9] The appellant further denied the
version put to state witness that he did not know who Jacob
Tshabalala was. When asked during
cross examination, this is how he
answered.
Question: There is a version that you
put to the witness that you did not even know Jacob Tshabalala. Did
you hear that?
Answer: No, I did not hear that and I
disagree with that because Jacob Tshabalala is the person that I
always work with.
Question: So, what you are saying is
that your attorney was not telling this court the truth?
Answer: Yes, on that point I did not
tell him that I do not know Jacob Tshabalala. That is the person I
work with your worship.”
[10] The legal representative failed to
rectify the point. He remained mum. He did not withdraw as an
attorney of record. He proceeded
with representation notwithstanding
the different version put on record by the accused contrary to what
he stated was in accordance
with his instructions. This emerged for
the first time when the “guilty plea” was read on record.
The appellant denied
what was read from the plea statement. This
prompted me to check what was in the scripted version as opposed to
what was placed
on record.
[11] On my perusal of the typed version
of the “guilty plea” in comparison with what was read on
record, it was clear
that the attorney “added” some words
when placing the plea on record. This clearly shows that the attorney
did not
act in accordance with his instructions. What puzzles me is
that he continued to represent the appellant notwithstanding all
these
“disagreements” mentioned by the appellant during
trial. The attorney failed to withdraw as an attorney of record
notwithstanding
all the “disagreements” placed on record
by the appellant. The court as well failed to assist the appellant by
advising
him to terminate his attorney’s mandate.
[12] Considering the conduct of both
the attorney and the presiding magistrate who decimally failed to act
in accordance with instruction
and failure to assist the appellant
respectively renders the appellant’s trial unfair.
[13] In my analysis of the evidence
tendered and the version placed on record by the appellant during his
examination in chief,
cross examination and clarifying examination by
the court, I am of the view that the appellant’s version is
reasonably possibly
true. In the result, the appellant’s
conviction stands to be set aside.
I thus make the following order.
ORDER
1. The appellant’s appeal is
upheld.
2. The trial court’s conviction
is set aside and replaced with the following:
‘The accused is found not guilty
and must be released.’
AML Phatudi
Judge of the High Court
I agree
Hertenberger-Brack
Acting Judge of the High Court
For Applicant: M Botha: Legal Aid
South Africa
For State : M Mbaqa: National
Prosecuting Agency
Date of Hearing : 25 May 2015
Date of Judgment : 29 May 2015