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[2010] ZAGPJHC 44
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S v Mokoena (CC469/08) [2010] ZAGPJHC 44 (28 May 2010)
IN THE HIGH COURT OF SOUTH AFRICA
CIRCUIT LOCAL DIVISION OF THE VEREENIGING
CIRCUIT DIVISION,
VEREENIGING
CASE NO
: CC 469/08
DATE
: 2010.05.28
In the matter between
THE STATE
and
RUBEN QUEEN MOKOENA Accused 1
MVULA NICODIMUS SHABANGU Accused 2
_________________________________________________________
J U D G M E N T
_________________________________________________________
SPILG J
: Mr Tlouane who appears for both accused has
applied to recall Mr Abraham Letshele. Firstly it is for the purpose
of introducing
the section 112 statement made by Mr Letshele when he
pleaded guilty to charges relating to the same offence for which the
accused
before me has been indicted.
Secondly he wishes to introduce the statement, should the accused
either admit making it or authorising it to be made, for the
purpose
of testing the credibility of the witness and for this purpose
alone. The application has made from the Bar literally
minutes
after the court excused Mr Letshele.
Two issues arise. One is the reason for not seeking to introduce
this evidence during the cross-examination of Mr Letshele
and the
other is a substantive law issue as to whether or not the section
112 statement can be admitted and used at all for the
purpose of
testing Mr Letshele’s credibility.
Miss Ngobeni, for the State, contends both that the State is
prejudiced by the introduction of this evidence after the witness
had been excused and also on certain substantive grounds that will
be set out later.
The explanation for the delay is as follows: Mr Tlouane had
received the section 112 statement, after requesting it, a day
before Mr Letshele gave evidence. He had raised with Ms Ngobeni
his wish to introduce it but was told that she would object.
For
this reason he believed that the appropriate course was to make an
application separately and after Mr Letshele had given
his evidence.
Mr Tlouane accepts that this was an inappropriate way of dealing
with the matter.
In my view the standard procedure adopted by any defence, when
seeking to introduce a document that may be objected to, is by
advising the court of these facts and then the court will hear
argument on whether or not the document may be introduced. There
may be occasions when the court considers it prudent that the
witness be excused during argument so as to preclude the witness
being pre-cognised of the purpose and import of the line of
cross-examination to be adopted. To the extent that this may have
weighed with Mr Tlouane in making his decision, the answer is simply
that the court would ensure that the witness is excused
when
argument is presented.
However, the error cannot preclude Mr Tlouane from seeking to
recall the witness after he has given evidence particularly where,
as in this case, it was applied for within minutes of the witness
being excused. I am satisfied that it was a
bona fide
decision made by Mr Tlouane and the only basis upon which a court
would not condone the recalling of the witness is if there
was
prejudice to the State or prejudice to the witness of such a nature
that may undermine the fair trial of this matter.
Once the issue is characterised as a balancing the interests of
securing a fair trial on the one hand, and the inconvenience
to the
State, then the simple delay of minutes in seeking to put further
questions to the witness - and the State accepting that
there is no
prejudice
per se
in recalling – renders the outcome in
my view, self-evident; the application to recall the witness should
be granted unless
there is a substantive law impediment.
The substantive impediment that Miss Ngobeni raised today on behalf
of the State, is that of prejudice to the witness in that
at the
time the section 112 statement was made, the witness was a minor,
and that he made his statement on legal advice.
In passing this is precisely the type of argument that justifies
ensuring that the witness is not present during the course
of
argument as it may suggest to the witness, quite unintentionally, a
way to answer should the document be allowed to be put
to him.
Insofar as the merits of the substantive issue are concerned, if it
is shown that the witness made the statement (and in this
case it
was made before a court and appears to have been accepted by the
State), then it is for him to explain why he said what
he did which
then leaves it open to the court to determine what weight, if any,
is to be given to the statement.
It is essential that there be no confusion between allowing
evidential material to be used and the weight that is to be given
to
the answers furnished in reply. This can be tested by the simple
illustration that I put to Miss Ngobeni. If the section
112
statement was to the effect that the witness had accepted sole
responsibility and had explained that the killing of the deceased
was as a consequence of some issue they had between them, then it
would be absurd to suggest that this could not be used to test
his
credibility if the witness had then sought to implicate others.
There is, quite rightly, a very limited scope for excluding
evidence
and it is generally based on authenticity, on relevance, on
privileged communication and, in the context of criminal
law and
procedure. those self-incriminatory statements which cannot be
accepted because of public policy or lack of reliability.
Accordingly, the witness ought to be able to explain his statements
and depending on the explanation given (and the court will
always be
alive to the fact that it is made within the context of a plea that
has as its objective to seek clemency within the
context of
sentencing, or might have that as an objective) the court will weigh
whether the statement has ultimately any value
whatsoever. But
unless that document is dealt with, there in my view would be a
failure of justice in not allowing its contents
to be tested through
cross-examination.
I believe that Miss Ngobeni raised another issue yesterday, which
related to whether or not such a document could be used at
all,
because of its nature as a guilty plea under section 112 where the
witnesses was a co-accused until the separation of trials
was
ordered pursuant to the decision to plead guilty and that the
section 112 plea may contain statements incriminating the accused
before me. In my view the answer is that the statement of one
accused cannot be used to incriminate his co-accused where there
is
yet to be a separation of trials pursuant to the former pleading
guilty.
The safeguard that exists where the statement was made before there
was a separation, in my view, prevails and continues and
attaches to
the document itself and a court would always be alive to that.
This court is at some disadvantage because the infrastructure that
it ought to have to be able to undertake the necessary research
in a
matter of this nature, has not been made available to it by reason
of the court administration under the Court Manager of
the South
Gauteng High Court. By now this court should have had access to
internet facilities in order to readily be able to
undertake the
necessary research in giving a decision of this nature which,
emanating from a High Court, has an impact amounting
to precedent
binding at least on all Magistrates within its jurisdiction.
This is not the place to detail the attempts made to ensure that
this court had the resources available before it commenced with
this
Circuit so as to ensure that its decisions could be carefully
considered and are based on full and up to date research using
all
the research tools available and which should have been provided to
it.
I nonetheless must make a decision and I am alive to the fact that
it needs to be done on as narrow a basis as possible by reason
of
the compromised position in which the court finds itself due to the
failure of its administrative infrastructure.
I will therefore confine myself in regard to this second substantive
issue as I see it. The textbooks to which I have been
able to have
regard are
Law of Evidence by Schmidt and Rademeyer
as well
as
Hiemstra’s Criminal Procedure.
In its commentary on
section 112
Hiemstra’s Criminal Procedure
refers to the
case of
S v Witbooi and Others
1994 (1) SACR 44
(CK). In
that case three accused were charged in the Magistrate’s Court
with stock theft. Accused 3 had pleaded guilty
and accused 2, upon
being questioned under section 115 of the Criminal Procedure Act,
incriminated his co-accused alleging that
he had helped accused 1
and 3. Accused 3 admitted, while being questioned under section
112, that he had stolen the ox from
the complainant and that accused
1 and 2, who also knew that it was stolen, helped him slaughter the
ox. The magistrate convicted
accused 3 on the basis of his plea
and the trial then proceeded before the same magistrate against
accused 1 and 2. The High
Court, on review, considered whether the
magistrate ought to have separated the trials of the accused. The
court on review,
consisting of Heath J and Claassen AJ, held that
the magistrate had not erred in failing to separate the trial of
accused 2 from
that of the other two accused simply on the basis
that his defence, as disclosed in the plea explanation, tended to
incriminate
his co-accused. The court, however, found that the
failure of the magistrate to separate the trial of accused 3 from
the other
accused, and after accused 3 had been convicted,
prejudiced the other accused and amounted to a failure of justice.
This resulted
in the conviction of accused 1 and 2 being set aside.
The court referred to the case of
S v Ntuli
& Others
1978 (2) SA 69
(A) at page 73 (B), the effect of which was that
there would not be any substantial prejudice from the failure by the
court to
separate the trial of accused 2 from that of 1 and 3, but
that the failure of the court to separate the trial of accused 3 who
had pleaded guilty from the trial of accused 1 and 2 obviously
prejudices them. The reason appears at page 51(f) of the judgment
where the court said that the magistrate in convicting accused 3
“
against the background of his replies and the questioning
by the magistrate in terms of section 112 (1)(b) amounts to an
acceptance,
not only of all the elements of the offence, but at the
same time an acceptance of his version that he had slaughtered the
ox
with the assistance of accused 1 and 2 and that he had in fact
informed accused 1 and 2 that the had stolen the ox.”
As appears on page 51 (g) to (i) of the
Witbooi
judgment,
the court explained that the magistrate effectively could not
disabuse his mind from a finding that he had made and
which was
necessary for him to make when convicting accused 3 on the basis of
his plea as explained. Moreover the prejudice
to the other accused
was evident to the court and I would add that the issue of
prejudice, in the form of potential prejudice
by reason of the
accused’s perception of the magistrate’s court finding
regarding the co-accused who had pleaded
guilty, is equally
self-evident.
I am satisfied that the concerns that the court had in that case
cannot be extrapolated to apply in the present situation.
The
reasons are twofold. Firstly, the section 112 statement is not
sought to be used as proof of content, but to test the credibility
of the witness. Secondly, I do not believe that the court can fall
into the potential trap of regarding the contents of section
112 as
evidence incriminating the accused before me.
I should just revert to the argument by Miss Ngobeni that section
112 can have no value since in the process it involved a guardian
and a legal representative. In my view, as with every other
document sought to be introduced as evidential material from which
conclusions are ultimately sought to be drawn, if the witness is the
author of the document, or can demonstrably be shown to
have
associated himself or herself with the document, it amounts to
evidential material that the other party must be entitled
to use in
order to test the credibility of the witness in question.
Finally I would like to make an observation, and at this stage it
is an observation only, because of the lack of resources at
my
disposal to ascertain whether or not any case has dealt with this
aspect. I found that the section 112 statement constitutes
evidential material which can be used by the accused should the
person who made it, and who has been convicted, be called to
give
evidence.
In my view, the natural consequence of this finding is that section
112 statements are to be made available by the State to
the legal
representative of the accused together with the contents of that
part of the docket to which the defence is entitled,
where the State
intends calling an alleged accomplice who has already been
convicted.
In order to fulfil the requirements of a fair trial process
in a criminal court, the legal representative of the accused ought
to be able to prepare fully and in particular be able to prepare
fully for the cross-examination of witnesses called by the State.
This requires adequate preparation and the ability to sift through
the documentation, determine how best to test the veracity
of State
witnesses and consider the advisability of calling any witness. As
I have indicated, this is an observation and I believe
that a
section 112 statement ought to be provided with the docket where
reliance may be placed by the State on a witness who
has pleaded
guilty in relation to the same offence for which the accused has
been charged.
By reason of what I have said, Mr Letshele must now be recalled and
Mr Tlouane may seek to introduce the section 112 statement.
__________________________________