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[2013] ZASCA 55
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Sithole v S (604/12) [2013] ZASCA 55 (4 April 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case No: 604/12
In the matter
between:
DAVID
SITHOLE
.........................................................................................................................
Appellant
and
THE STATE
............................................................................................
Respondent
Neutral citation
:
Sithole v The State
(604/12)
[2013] ZASCA 55
(04 April 2013)
Coram:
Mpati
P, Majiedt JA, Southwood, Plasket, Saldulker AJJA
Heard:
14
March 2013
Delivered:
04
April 2013
Summary:
Criminal
Law - unrepresented accused - robbery with aggravating circumstances
- reliability of identification - evidence of complainant
not
corroborated – criminal proceedings - right to a fair trial -
role of Judicial officers and state prosecutors –
lack of
fairness and impartiality.
_______________________________________________________________
ORDER
____________________________________________________________________________________
On appeal from:
North
Gauteng High Court, Pretoria (De Jager AJ and Bergenthuin AJ sitting
as court of appeal):
The appeal is
upheld.
The order of the
high court is set aside and substituted with the following:
‘
The
appeal is upheld and the conviction and sentence are set aside.’
JUDGMENT
SALDULKER AJA
(Mpati P, Majiedt JA, Southwood and Plasket AJJA concurring):
[1] The appellant
was convicted in the regional court, Mamelodi, Pretoria on a charge
of robbery with aggravating circumstances
on 20 November 2002. Having
found no substantial and compelling circumstances, the regional
magistrate sentenced the appellant
on the same date to 15 years’
imprisonment in terms of the Criminal Law Amendment Act,105 of 1997
(the Act). On 17 July 2006,
his appeal to the North Gauteng High
Court (De Jager AJ and Bergenthuin AJ) against both the conviction
and sentence failed. The
appellant was, however, granted leave to
appeal to this court on both conviction and sentence by Van der Merwe
DJP and De Vos J
on 21 September 2011.
[2] Regrettably for
the appellant, given the outcome hereof, this appeal comes before us
after his release on parole, and after
he had served eight years of
the sentence.
[3] The main issue
in this appeal is whether the appellant, who was unrepresented during
his trial, was properly convicted of the
charge against him. I shall
also comment on whether he had a substantively fair trial. The events
giving rise to the charges upon
which the appellant was convicted and
sentenced are as follows. The complainant, Ms Nancy Mokoena,
testified that at 07h30 on 13
December 2001, she was walking in (the
district of ) Mamelodi East, on her way to visit her cousin, when she
was accosted by two
men, both unknown to her, one armed with a
firearm, and robbed of her cellphone. They then ran away but a
distance away, the one
with the firearm fired two shots in her
direction. The complainant proceeded to her cousin’s home where
she reported the
incident. Her cousin Mr Edward Leyana then
accompanied her to the site of the incident where they found a group
of people sitting
and drinking sorghum beer at a nearby house. Two of
the people from the group claimed that they had seen the incident,
and that
the robber with the firearm was known to them, and that his
name is David and he exercised at the nearby gymnasium. According to
the complainant that afternoon, whilst she had been sitting outside
her cousin’s house, she saw the appellant, walked passed
her to
the gymnasium. The appellant was then identified as the robber and
this led to his arrest.
[4] The appellant’s
version was an alibi. He denied his involvement in the robbery
incident and stated that on that day, he
was at work in Sunnyside.
The trial court found that the state had proved the appellant’s
guilt beyond a reasonable doubt
and rejected the appellant’s
version on the basis that it was so improbable and beyond belief that
it could not reasonably
possibly be true.
[5]
On appeal the state contended in its head of argument that the
appellant had been wrongly convicted and that he had not received
a
fair trial. The state confirmed this at the hearing. The state’s
case against the appellant rested on the evidence of the
identification of the appellant by a complainant, who was a single
witness to the robbery. In
S
v
Sauls
1
it was held that
when it comes to a consideration of the credibility of a single
witness, the trial judge will weigh the evidence,
consider its merits
and demerits and, having done so, will decide whether, despite the
fact that there are short-comings or defects
or contradictions in the
testimony, he is satisfied the truth has been told. Futhermore, the
exercise of caution must not be allowed
to displace the exercise of
common sense. The complainant’s identification of the appellant
in this case was not reliable
and was based on what other people had
told her, and none of these people testified. There is nothing in the
objective facts which
corroborates the complainant’s
identification of the appellant during the actual robbery. The
magistrate accordingly erred
in concluding that the complainant’s
evidence was satisfactory in every material respect and that the
appellant’s guilt
was proved on the strength of her testimony,
as a single identification witness
2
.
[6]
As far as the appellant’s version is concerned, it appears that
the magistrate gave it only cursory and superficial consideration.
The magistrate did not follow the rules of assessing the appellant’s
evidence in the context of all the evidence to determine
whether his
defence was reasonably possibly true.
3
A court cannot
simply reject the accused’s version because it finds the
prosecution witnesses to be credible. It must substantiate
reasons
for rejecting the accused’s version.
4
[7] The
unreliability of the state’s case on identification set out
above and the fact that the appellant’s version
was wrongly
rejected as not being reasonably possibly true, must result in the
conviction and sentence being set aside.
[8]
I deem it necessary to mention that there were disquieting features
of the trial which amount to irregularities which were prejudicial
to
the appellant and which would, in any event, have resulted in the
proceedings against him being vitiated.
I
propose doing no more than to mention them briefly:
(a) the magistrate
failed to inform the appellant of his constitutional right to choose
and
be represented by a legal practitioner;
5
or his right to have
a legal
representative
assigned to him by the state and at state expense where, as here,
substantial injustice would otherwise result;
(b) the magistrate
failed to assist the unrepresented appellant during the trial, and on
the contrary, curtailed his cross examination
concerning a material
aspect, namely discrepancies between Leyana’s
viva voce
evidence and his police statement;
(c) the magistrate
was biased against the appellant by making the following statement at
a stage in the trial when the state had
not yet closed its case :
‘
Yes,
Sithole. You must consider yourself lucky for getting away with this
because even if the firearm is not found, if there is
proof that it
was fired you look to face prison charges. You must thank your lucky
stars’.
[9] An unrepresented
accused has a limited appreciation of the legal process and is
greatly disadvantaged in legal proceedings,
where he or she has to
conduct his or her own defence. Judicial officers must ensure
impartiality, objectivity and procedural fairness
in respect of the
unrepresented accused who lacks familiarity with courtroom technique
and legal knowledge in order to ensure a
fair trial. The judicial
officer must assist the unrepresented accused in all facets of the
trial, ensuring that only admissible
evidence is placed before it.
[10] For more than a
decade the appellant has tried to have his conviction and sentence
set aside. After he was convicted and sentenced
on 20 November 2002,
he lodged an appeal against both his conviction and sentence which
was heard by De Jager AJ and Bergenthuin
AJ on 17 July 2006. In that
court, the prosecution was unyielding in its quest to have the
appellant’s conviction confirmed
and continued to contend that
the complainant was a satisfactory and reliable witness. The
appellant subsequently lodged an application
for leave to appeal to
this court in July 2007.This application was delayed and postponed on
several occasions thereafter.
[11] On 7 January
2010, eight years after being sentenced, the appellant was released
on parole. He continued to pursue the hearing
of his application for
leave to appeal which was eventually heard and granted by Van Der
Merwe DJP and De Vos J on 20 September
2011. The state did not oppose
this application as it was not convinced that the appellant had been
correctly convicted. The state
had an opportunity to concede in the
court below that the appellant had not been convicted properly, but
failed to do so until
the matter was heard before this court. It is a
travesty of justice that the appellant had to wait more than a decade
to finally
succeed in having his conviction and sentence set aside,
and then only after being released on parole, having served eight of
the
fifteen year sentence.
[12] In the
circumstances, I make the following order:
The appeal is
upheld.
The order of the
high court is set aside and substituted with the following:
‘
The
appeal is upheld and the conviction and sentence are set aside.’
_____________________
H SALDULKER
ACTING JUDGE OF
APPEAL
APPEARANCES
For Appellant: M.
Calitz
Instructed by:
Justice Centre, Bloemfontein
For Respondent: A.
Coetzee
Instructed by:
Director of Public Prosecutions, Bloemfontein
1
S
v S
auls
1981 (3) SA 172
(A) at 179G-180H.
2
S
v
Mthetwa
1972 (3) SA 766
(A) at 768A-C.
3
S
v
Van Aswegen
2001 (2) (SACR) 97 (SCA) para 8.
4
S
v
Guess
1976 (4) SA 715
(A) at 718D-719A;
S
v
Shackell
2001 (2) SACR 185
(SCA) para 30.
5
Hlantlalala
v
Dyanti
NO
1999
(2) SACR 541
(SCA) para 8;
S
v
Rudman
;
S
v
Mthwana
1992 (1) SA 343
(A) at 382C-H;
S
v
May
2005 (2) SACR 331(SCA).