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[2020] ZAGPJHC 280
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Gabela v S (A60/2020) [2020] ZAGPJHC 280 (6 November 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
APPEAL
CASE NO
:
A60/2020
COURT
A QUO
CASE NO
:
43/1277/2013
DATE
:
6
th
NOVEMBER 2020
In
the matter between:
GABELA
,
JABULANI
Appellant
and
THE
STATE
Respondent
Coram:
Adams J
et
Majavu AJ
Heard
:
15 October 2020 – The matter was disposed of without an oral
hearing in terms of
s 19(a)
of the
Superior Courts Act 10 of 2013
.
Delivered:
6 November 2020 – This judgment was handed down
electronically by circulation to the parties' representatives by
email, by
being uploaded to the
CaseLines
digital system of
the GLD and by release to SAFLII. The date and time for hand-down is
deemed to be 11:00 on 6 November 2020
Summary:
Criminal Law – appellant convicted of
one count of murder, read with
s 51(2)
of the
Criminal Law Amendment
Act 105 of 1997
based on common purpose – no allegations of
common purpose in the charge sheet – appellant did not receive
a fair trial
– conviction set aside and replaced with
conviction on competent verdict – assault with intent to cause
grievous bodily
harm – sentence of three years’ direct
imprisonment imposed.
ORDER
On
appeal from:
The
Soweto Regional Court, Protea (Regional Magistrate Mpofu sitting as
Court of first instance):
(1)
The appellant’s appeal is upheld and
succeeds to the extent set out below.
(2)
The appellant’s conviction on the
charge of murder and the related sentence of direct imprisonment for
a period of seven years
are set aside, and replaced with the
following:
‘
(a)
The accused is convicted on the competent charge of assault with
intent to do grievous bodily harm.
(b)
In
respect of his conviction on a charge of assault with intent to cause
grievous bodily harm, the accused is sentenced to direct
imprisonment
for a period of three years.’
(3)
The appellant’s bail be and is hereby
revoked.
(4)
The appellant shall report to the Clerk of
the Soweto Regional Court in Protea within 48 hours of this Order, to
commence serving
his sentence.
JUDGMENT
Majavu
AJ (Adams J concurring):
[1].
This is an appeal against conviction by the
appellant, who was arraigned in the Soweto Regional Court on a charge
of murder, as
read with
section 51
(2) of Act 105 of 1997. He pleaded
not guilty and was subsequently convicted and sentenced to an
effective term of imprisonment
for a period of seven years. The
appellant was granted leave to appeal by the court
a
quo
against conviction only. This
appeal is opposed by the State.
[2].
The grounds of appeal were fashioned as
follows:
‘
1.
It is respectfully submitted that the Learned Regional Magistrate
erred in fact and/or in law in the following respects:
1.1
By finding that the state proved its case against the appellant in
respect of the charge of murder beyond reasonable doubt;
1.2
By finding that someone in the appellant’s group stabbed the
deceased with a sharp object;
1.3
By finding that the appellant did foresee that something can come
about that could cause the death of the deceased, but persisted;
1.3.1
In this regard it is submitted that there was no evidence that anyone
else assaulted the deceased at the time that the deceased
and the
appellant struggled and fell down, followed by the appellant kicking
the deceased and thus no basis to find that it was
reasonable that
others would join in and fatally wound the deceased;
1.4
By failing to find that it was not foreseeable that others would also
assault the deceased and/or that someone was armed with
a sharp
object and would stab the deceased;
1.5
By failing to find that it was not foreseeable that someone would
have a weapon and would stab the deceased;
1.6
By finding that the appellant did not act in self-defence when
kicking the deceased once or twice. In this regard it is submitted
that on the totality of events, the appellant did not exceed the
boundaries of self-defence;
1.7
By failing to find that it was not foreseeable that someone would
have a weapon and would stab the deceased;
1.8
By finding that the incident in the street was a new fight
completely; and
1.9.
By finding that the appellant was present during the fatal stabbing
of the deceased, but didn’t “finish the story
where it
ended”.’
[3].
In this judgment, I will not deal with
these grounds
ad seriatim
or in any particular order, but rather with the totality of the
evidence which was before the learned Regional Magistrate.
[4].
The appellant also raised a number of legal
points in his Heads of Argument. I turn to deal with those points
first.
Points raised for the first time in
the Appellant’s Heads of Argument
[5].
The first point
in
limine
raised by the appellant is that
at his appearance on the 22
nd
of September 2014 the assessors, who were supposed to be sitting with
the learned Magistrate, were not present when the matter
proceeded
further on this date and they were also not present in all the
hearings that followed. It was therefore submitted on
behalf of the
appellant that, because it was necessary for the Assessors to be part
of all proceedings and be present at all appearances,
as required by
law, this was an irregularity which vitiated the proceedings.
[6].
There is no merit in this submission. The
trial proceedings commenced on 31 March 2014 and the trial court
placed on record that
it was proceeding in the presence of assessors.
Mr Grove, who appeared on behalf of the appellant during the trial,
indicated that
the appellant had no objection to the constitution of
the trial court. Similarly, during subsequent appearances no
objection was
raised as regards the composition of the court. The
appellant now asserts that the trial court proceeded without
assessors.
[7].
This contention is clearly not sustainable
if for no other reason than the fact that it is factually inaccurate.
The assertion is
at odds with the probabilities – during the
trial the appellant was at all times legally represented by Mr Grové.
That being the case, it is highly unlikely that Mr Grove would have
missed such an obvious irregularity. He would no doubt have
taken
issue with such a glaringly inappropriate procedure. As a matter of
practice, once the appearance of assessors has been noted
and
confirmed, their attendance at subsequent hearings are not recorded
as a matter of course. This is borne out by the fact that
the record
did not reflect the presence and attendance of the assessors at any
hearings subsequent to the first day of the trial,
including the
record relating to the hearing on 31 March 2014. This was so despite
the fact that it is patently clear that the
court was constituted, on
each occasion, by the learned Regional Magistrate sitting with her
two assessors. If this was not so,
the appellant’s attorney, Mr
Grové, would no doubt have objected to the differently
constituted trial court and he
would inevitably have requested a
special entry to be made on the record.
[8].
This point is accordingly dismissed.
[9].
The
second legal point raised by the appellant in his written Heads of
Argument is that the State, in the charge sheet, did not
rely on the
doctrine of common purpose when the appellant was formally charged.
It is so that no such assertion was made in the
charge sheet or at
any stage before the appellant was required to plead. Nor was it
contended by the State at any stage during
the trial proceedings
until its conclusion that the charge of murder was based on the
doctrine of common purpose. Also, there was
no application for the
amendment of the charge sheet in terms of
section 86
(1) of the
Criminal Procedure Act, 51 of 1977
[1]
,
to include a reference to common purpose, which
ought
to be included in the charge sheet or as part of the summary of
substantial facts alleged in the indictment.
[10].
In this case, the respondent belatedly
attempted – only at the hearing of the appeal stage – to
bring an
ex post facto
application for amendment to include a reference to common purpose.
The text of the relevant subsection is very clear in that such
an
application must of necessity be brought at any stage before
judgment. In this instance, it is raised for the first time in
the
heads of argument before this appeal court. This is not even raised
as a ground of appeal at all. As matters currently stand,
we are all
none the wiser with regard to what the presiding magistrate’s
stance would have been had such an application been
brought.
Moreover, because this was not raised as a ground of appeal, the
presiding magistrate is deprived an opportunity to have
dealt with it
in her judgement with regard to the application for leave to appeal.
[11].
Similarly, the state was also not afforded
an opportunity to deal with that aspect, until it was raised in the
heads of argument
a few days ahead of the hearing of this appeal. It
is not open to the respondent to suggest that in the event that the
court was
to allow an amendment at this stage, it would result in no
prejudice to the rights of the appellant. It is equally possible that
had the appellant known that he could possibly be convicted on the
doctrine of common purpose, he might have considered conducting
his
case differently. So for example he could have elected not to
testify, in which case he would not have offered a version, as
he
did, in which he clearly implicated himself in some wrongdoing.
[12].
I therefore find that such an amendment
cannot be effected at this stage and accordingly this application to
amend the charge sheet,
insofar as such an application was within the
contemplation of the State, was still born. This aspect of the matter
will be returned
to later on in the judgment as part of the merits of
the appeal. Suffice at this stage to say that, in my view, the fact
that the
charge sheet failed to mention that the count of murder was
based on the doctrine of common purpose meant that the appellant may
very well not have received a fair trial.
[13].
The third legal point taken by the
appellant is that one of the State witnesses, Mr Chato Kobedi, was
not sworn in before he testified
on 31 March 2014. From the record
the following exchanges occurred between the witness and the trial
court before he commenced
his testimony. The court asked him the
following questions: ‘Do you have any objection to taking the
oath, Mr Kobedi?’
and his answer was that he had no objection.
Thereafter, the court asked him if he considered the oath to be
binding on his conscience,
and he answered in the affirmative.
[14].
If regard is had to these exchanges, it is
not entirely clear on what basis the appellant avers that the witness
had not been sworn
in. Especially, if regard is had to the record
immediately after these exchanges, which records that the witness,
like all the
other witnesses, ‘duly sworn states (through
interpreter)’. It stands to reason that the other missing words
were said
in vernacular and was not necessarily fully captured in the
transcript.
[15].
I have no doubt that an oath was
administered and that the witness took the oath in accordance with
the regulations before he testified.
At all material times the said
witness was led in chief on that basis and also cross-examined by the
defence legal representative
on the same basis. At no stage was a
point taken about the defect in the manner in which the oath was
administered. It is also
noteworthy that such a point was not taken,
either as self-standing or as ancillary to any of the grounds of
appeal raised.
[16].
Accordingly, I find this point to be
without merit and it stands to be dismissed.
What
is the effect of this omission (the insertion of the words to the
effect of placing reliance on common purpose) in the charge
sheet?
[17].
An
accused person is entitled to such particulars as he properly
requires for the purpose of preparing his case. The position remains
unaltered even with reference to the possibility of the invocation of
the doctrine of common purpose which is undoubtedly part
of our law.
Similarly, an accused person who faces a charge where the state
relies on this doctrine is also entitled to be informed
as such and
prior to him being required to plead or otherwise enter upon his
defence. I refer with approval to
S
v National High Command
[2]
at paragraph
464 where the court held that:
‘
Now
it is clear that where common purpose is alleged, the state has to
supply particulars of the facts on which it will rely in
order to ask
the court to draw the inference that each and every one of the
accused was a participant in the conspiracy, or party
to the alleged
common purpose.’
[18].
In this case, no such warning whatsoever
was given by the state to the appellant, let alone supplying some
particularity regarding
facts to be relied upon.
[19].
In
S
v Mphetha and Others
[3]
the court
ordered the state to furnish further particulars to the accused, and
in doing so it quoted with approval from
R
v Adams and Others
as follows
‘
It
is a well-known principle in our law that an accused person is
entitled to such particulars as he properly requires for the purpose
of preparing his case before he is called upon to plead and enter
upon his defence, and he is entitled to such particulars even
if it
entails a disclosure of Crown evidence’.
[20].
Adams
is an
English case which has found resonance with our courts in subsequent
judgments. In
S
v Ndaba
[4]
,
where the state had similarly relied on common purpose, which it had
not alleged in the charge sheet or in the summary of substantial
facts or in the opening address, this court had the following to say
at para 102:
‘
I
am satisfied that the allegation of common purpose has to be made by
the state in the indictment, or at least in the summary of
substantial facts furnished to the accused.’
[21].
In this case, we know that the appellant’s
right to a fair trial on a charge of murder was infringed due to the
failure by
the Court a quo and the State to forewarn him that the
State would be relying on the doctrine of common purpose to secure
his conviction.
This probably means that when he pleaded, the
appellant was unaware that the conduct of others may be imputed to
him and could
result in his culpability. This, in our judgment, was a
fundamental flaw in the proceedings in the Regional Court.
[22].
However, the question is whether it can be
said that the defect was of such a nature that it automatically
rendered the trial unfair,
especially if regard is had to the fact
that the appellant was during the trial continuously legally
represented. This question
should, in my view, be answered in the
affirmative. It has to be accepted that the lack of appreciation of
his culpability being
imputed from the conduct of others
distinguishes this case from a case in which, for example, there was
a failure to bring to the
attention of an accused in the charge sheet
the fact that a minimum sentence regime is applicable. (
Johannes
September v The State
2018 ZACC27). The
point is that there are no absolute hard and fast rules – each
case must still be judged on its particular
facts.
[23].
Having had specific regard to one of the
essentialia
alleged specifically in the charge sheet, namely that the
actus
reus
was constituted by the ‘stabbing’
of the deceased, it is not inconceivable that the appellant conducted
his defence
on the basis that he knew that he did not stab the
deceased, hence his denial of the cause of the death of the deceased.
That is
the case he came to court to meet.
[24].
It is also clear that on his own version,
the appellant committed an unlawful act in relation to the deceased.
The foreseeability
of death eventuating from his self-confessed
conduct was neither alleged nor proven on the evidence before the
presiding magistrate,
as per the trial record.
[25].
In the absence of the pre warning in the
charge sheet regarding the invocation of the common purpose doctrine,
I am inclined to
accept that the learned Magistrate committed a
material misdirection when she impermissibly invoked the doctrine of
common. This
is manifestly unfair to the appellant. I am accordingly
of the view that the failure to inform the appellant adequately of
the
charge he faced and the possibility of conviction on the basis of
the doctrine of common purpose prejudiced him and thus resulted
in
the appellant not receiving a fair trial.
[26].
His conviction on the charge of murder
therefore stands to be set aside as is the case with the related
sentence. The first time
when some reference to the doctrine emerged
was in Mr Grove’s address at the end of the case on behalf of
the defence case.
Even then the reference was made rather
inconsequentially in relation to whether the first or second incident
was one ongoing continuous
event, as opposed to separate and distinct
acts. Beyond that, not even the prosecutor made that contention or
sought to invoke
the doctrine in his closing arguments. The doctrine
of common purpose was found by the learned Magistrate to have formed
the basis
for the conviction on the murder charge without any factual
or legal basis for same. More importantly though was the fact that
common purpose was not pleaded by the State in the charge sheet. This
was therefore a misdirection on the part of the Magistrate
and, as
indicated above, the murder conviction stands to be set aside.
[27].
In the absence on the facts and
circumstances of this matter of common purpose as a basis for finding
culpability on the part of
the appellant, the question is whether he
was guilty of any other crime. The question is this: having regard to
the appellant’s
conduct on the night in question, can it be
said that he was guilty of another crime such as an offence, which is
a competent verdict
on a charge of murder? If the answer is in the
negative, then the appellant would be entitled to an acquittal.
Conversely, if answered
in the affirmative, then he should be
convicted on a competent verdict provided the essential elements of
such a competent conviction
are proven.
[28].
In order to answer this question, a brief
overview of the facts is necessary.
The
Facts
[29].
On 3 August 2013, the deceased and the
appellant were involved in an altercation at a tavern. The deceased
was the aggressor and
the first to assault the appellant by hitting
him with a half-full beer bottle. The appellant retaliated by
throwing some beer
bottles back at the deceased. There was an
exchange of beer bottles between the two of them with none, except
for the first one
thrown by the deceased, hitting either of them.
[30].
That incident stopped for a short period
and the deceased exited the tavern. Shortly thereafter, the appellant
also exited the tavern
and met the deceased in the street outside the
premises of the tavern. Both the deceased, who was clearly not happy
with the events
inside the tavern and the fact that he had come of
second best in the altercation, and the appellant were in the company
of other
persons. A further scuffle ensued resulting in both of them
falling to the ground, whereafter the appellant’s group of
friends
launched an attack on the deceased whilst he was lying on the
ground.
[31].
At some point during the fray, one of the
appellant’s friends attempted to pull the appellant away from
the fight. At that
point the appellant was also kicking the deceased
whilst he was on the floor. During the commotion, with the appellant
and his
cronies viciously attacking him, the deceased was stabbed
several times by one of the appellant’s group. Whilst there can
be little doubt that the deceased was stabbed by one of the
appellant’s group of about four to five friends during the
fracas,
nobody knows who did the stabbing. On the evidence, it can
also safely be said that it was not the appellant who stabbed the
deceased.
The appellant’s contribution to the attack on the
person of the deceased was that he kicked the deceased several times
whilst
he was lying on the floor. On his own version, the appellant
also saw others kicking the deceased while on the ground before he
too joined in and kicked him once or twice.
[32].
When the attack came to an end, it was
realised that the deceased had been stabbed. He later died shortly
after his arrival at the
hospital.
[33].
The second incident (outside the tavern)
was not a random act but rather a sequel to the earlier scuffle
(inside the tavern) and
in respect of which the deceased was the
aggressor. The appellant placed himself at the scene of the second
incident. He also confirms
his active role in the second assault as
part of a group of assailants, at least one of whom stabbed the
deceased, thus causing
his death.
Discussion
[34].
None of the contentions contained in the
notice of appeal are borne out by the record. The facts of this
matter are straightforward,
uncomplicated and largely uncontested.
There is simply no room for criticism against the magistrate’s
consideration, assessment
and evaluation of the evidence tendered by
both the state, in the form of two witnesses, on the one hand, as
well as the defence,
through the appellant himself.
[35].
There is no issue regarding identity of the
accused person, as he unambiguously placed himself at the scene of
the second incident
and goes on to state the role he played therein.
It is beyond any doubt that the appellant, on his own version,
assaulted the deceased.
Such an assault is indeed a competent verdict
on the charge of murder. There is no justifiable defence to his
conduct, again, on
his own version.
[36].
On the facts in this matter, I am unable to
find any misdirection on the facts. As indicated above, what I do
find is that the magistrate
impermissibly invoked the doctrine of
common purpose. This resulted in an incorrect conviction on the
charge of murder, which is
not supported by the facts and the law.
[37].
On the other hand, while the conviction on
a charge of murder and the sentence imposed in that regard cannot
stand, the appellant
on his own version was not entitled to
physically kick the deceased in the manner he did, and in doing so he
unlawfully assaulted
the deceased with intent to cause grievous
bodily harm. Under
s 258(b)
of the CPA, assault GBH is a competent
verdict on a charge of murder. The appellant should have been found
guilty of that offence.
[38].
On the facts, there can be no doubt that
the appellant committed the offence of assault with intent to cause
grievous bodily harm.
He launched a vicious attack on the person of
the deceased, whilst he was lying helplessly on the ground after
having already suffered
at the hands of appellant’s friends.
The assault by the appellant was in the form of him kicking the
deceased at least twice
in circumstances in which the appellant
should have realised that grievous bodily harm would be caused to the
deceased. We are
satisfied, as indicated above, that in the light of
the appellant’s acquittal on the murder charge, the learned
Magistrate
could have convicted him of assault GBH. We, as the appeal
court, can also do so.
[39].
The only question is whether the fact that
the learned Regional Magistrate did not at any stage during the trial
proceedings inform
the appellant of competent verdicts, impacts on
the fairness of the trial. The position with regard to competent
verdicts has engaged
our courts over the years, particularly when it
relates to the position of an undefended accused. It is a
time-hallowed principle
of our criminal procedure that an accused is
entitled to be informed with sufficient detail and clarity of the
charges against
him or her.
[40].
As Bosielo J observed in
S
v Motsomi
2005 JDR 1080 T as follows:
‘
[4]
It is fundamental and time-honoured principle of our criminal law
that every accused must be fully and properly advised of the
charge
which he/she is facing with sufficient details to be able to answer
thereto. (See: section 35(3) (a) of the Constitution).
This hallowed
principle is intended to avoid the possibility of “a trial by
ambush”. This requires that where the state
intends to rely on
competent verdicts in terms of section 256 to 270 to the Code, that
such an accused be informed of all relevant
competent verdicts even
before he pleads to the charge. Such a step will put such an accused
in a position to know and make an
informed decision
inter
alia
as to how to plead, which facts to admit and how to conduct his
defence. (See:
S
v Velela
1979 (4) SA 581
(C) and
S
v Kester
1996 (1) SACR 461
(8) at 469i). Furthermore such an approach will
avert any possible prejudice to such an accused, particularly if he
is illiterate,
unsophisticated and unrepresented’.
[41].
This principle is now enshrined in our
Constitution. Section 35 (3) (a) entitles every accused person as an
essential part of the
right to a fair trial, to be informed of the
charges he is facing with sufficient detail to answer it.
[42].
Griesel J in
S
v Fielies and Another
2006 (1) SACR 302
(C) at 306 b-f summarises safeguards that have to be taken to avoid
such conflict as follows:
‘
[9]
In order to guard against the potential prejudice lurking in these
provisions, the courts have over the years developed certain
safeguards. The relevant principles in this regard may for present
purposes be summarized as follows:
(a)
The
constitutional right to be informed of the charge includes the right
to be informed of competent verdicts on the charge.
(b)
While
it is not essential to refer to competent verdicts in the charge
sheet, it is extremely desirable that an undefended accused
be
informed timeously of any competent verdicts that might be returned
on conviction. This requires the court “to diligently,
deliberately and painstakingly inform the said unrepresented accused
of his rights and to ensure and confirm that he accused understands
his rights”.
(c)
In
order to give efficacy to this right, it is important that the
accused be informed of competent verdicts before pleading.
(d)
These
principles have particular relevance but are not limited to the
situation where a statutory provision places an onus on the
accused.
(e)
Failure
to inform an accused of a competent verdict does not per se preclude
the court from recording such competent verdict. Everything
will
depend upon the facts of each particular case and the extent to which
an accused may or may not be prejudiced in the conduct
of his or her
defence by such omission. Where there is the likelihood of prejudice
to the unrepresented accused, the return of
a competent verdict would
not be sanctioned.
(f)
In
the ultimate analysis, the enquiry is simply whether the accused has
been given a fair trial.’
[43].
Applying these principles
in
casu
, I am satisfied that the appellant
was not prejudiced in the conduct of his defence by the omission by
the learned Regional Magistrate
to inform him of the competent
verdicts. Throughout the trial he was legally represented by an
experienced and a seasoned criminal
lawyer. He was not an ‘undefended
accused’ and we do not believe that the appellant’s right
to a fair trial had
been violated.
[44].
For all of these reasons, we are of the
view that a competent verdict on a charge of assault with intent to
cause grievous bodily
harm should be returned – in the final
analysis such a verdict is sanctioned by the circumstances in the
matter.
Sentence
[45].
The sentence of direct imprisonment for a
period of seven years that the Regional Court imposed on the
appellant was because of
the conviction on one count of murder, read
with section 51(2) of the Minimum Sentencing Act. The conviction we
have already indicated
stands to be set aside, so too the sentence.
In its place must be substituted an appropriate sentence relating to
the conviction
on the competent charge of assault GBH.
[46].
While it is normally preferable for the
trial Magistrate to impose a new sentence on a convicted person, any
benefit arising from
the Magistrate’s familiarity with this
case has been seriously eroded by the length of time that has passed
since the appellant’s
trial. It is accordingly in the interests
of justice for this Court to determine the matter finally.
[47].
The appellant, whose date of birth is the
19
th
of November 1987, making him 33-years old at present, was a first
time offender. At the time of the commission of the crime on
the 3
rd
of August 2013, he was 26-years old and when he was sentenced in the
Regional Court on the 7
th
of October 2015 he was 28-years old. The appellant stands to be
convicted of assault GBH in circumstances in which the victim of
the
assault lost his life, although I should hasten to add that the
appellant cannot and should not be held responsible for the
death of
the deceased. Nevertheless, the appellant’s assault on the
person of the deceased was part of a vicious attack on
the deceased
in which he was stabbed no less than seven times in the upper part of
his body.
[48].
Alcohol played a big part in the events on
the night in question. The deceased was in fact the initial aggressor
and he had hit
the appellant over the head with the half-full beer
bottle causing an open head wound. His personal circumstances were
that he
went to school up to and completed grade 12 in 2006. He is
unmarried, but at the time when he was sentences he was a father to
an eight month old toddler.
[49].
The appropriate and proportionate sentence
to be imposed in the circumstances following the conviction of
assault with intent to
cause grievous bodily harm is direct
imprisonment for a period of three years.
Order
In
the result, the following order is made:-
(1)
The appellant’s appeal is upheld and
succeeds to the extent set out below.
(2)
The appellant’s conviction on the
charge of murder and the related sentence of direct imprisonment for
a period of seven years
are set aside, and replaced with the
following:
‘
(a)
The accused is convicted on the competent charge of assault with
intent to do grievous bodily harm.
(b)
In
respect of his conviction on a charge of assault with intent to cause
grievous bodily harm, the accused is sentenced to direct
imprisonment
for a period of three years.’
(3)
The appellant’s bail be and is hereby
revoked.
(4)
The appellant shall report to the Clerk of
the Soweto Regional Court in Protea within 48 hours of this Order, to
commence serving
his sentence.
__________________________
Z M P MAJAVU
Acting Judge of the High Court
Gauteng Local Division,
Johannesburg
I agree
__________________________
L R ADAMS
Judge of the High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
15
th
October 2020 –
The matter was disposed of without an oral hearing in terms of
s
19(a)
of the
Superior Courts Act 10 of 2013
.
JUDGMENT DATE:
6
th
November 2020
FOR THE APPELLANT:
Adv Lebohang Mosoaneng
INSTRUCTED
BY:
Legal
Aid South Africa
FOR
THE RESPONDENT:
Adv
Lwazi Ngodwana
INSTRUCTED
BY:
The
Office of the National Director of Public Prosecutions,
Johannesburg
[1]
S86
(1)
‘Where a charge is defective for the want of any essential
averment therein, … or where it appears that words
or
particulars that ought to have been inserted in the charge have been
omitted therefrom, or where any words or particulars
that ought to
have been omitted from the charge have been inserted therein, or
where there is any other error in the charge,
the court may, at any
time before judgment, if it considers that the making of the
relevant amendment will not prejudice the
accused in his defence,
order that the charge, whether it discloses an offence or not, be
amended, so far as it is necessary,
both in that part thereof where
the defect, variance, omission, insertion or error occurs and in any
other part thereof which
it may become necessary to amend.’ In
this case, the insertion of the words common purpose was never done
in accordance
with this section.
[2]
1963 (3) SA
462 (T)
[3]
1981 (3) SA
803 (C)
[4]
2003 (1
)SACR 364 (W)