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[2010] ZAGPPHC 539
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S v Maphanga and Another (A269/2010) [2010] ZAGPPHC 539 (13 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
DATE: 13 April 2010
CASE NUMBER: A269/10
REPORTABLE
OF INTEREST TO OTHER
JUDGES
Magistrate
NKOMAZI
Case No: A757/08
High Court Ref No:
1525
THE
STATE V
1.
WONDER
NDLELA MAPHANGA
2.
THULANE
MUNTU NKOSI
REVIEW JUDGMENT
MAKGOBA. J
[1] The two accused
were charged with one count of housebreaking with intent to steal and
theft. It was alleged that on or about
8 to 15 November 2008 the
accused broke into and entered the bottle store of one Sifiso Mabaso
and stole a certain quantity of
liquor. Both accused were convicted
as charged and sentenced to eighteen months imprisonment, suspended
for a period of three years
on certain conditions. Both accused were
unrepresented.
[2] The matter came
before me on automatic review and I addressed the following questions
to the trial magistrate:
1.
AD
IRREGULARITIES
1.1 The magistrate
failed to apply the provisions of
section 115
of the
Criminal
Procedure Act 51 of 1977
properly in that instead of explaining the
rights to disclose the basis of defence to the accused he merely put
a vague question
to this effect: “Do you want to tell the Court
why you plead not guilty?”
1.2 Instead of
explaining to the accused the rights to cross-examine the state
witnesses the magistrate put the following question
to accused number
one: “Do you agree with what he told the court?” To
accused number two the following question was
put: “Mr Nkosi,
question?”
1.3 The magistrate
took over from the prosecutor and led the state witnesses’
evidence on behalf of the state.
1.4 The magistrate
allowed and/or made the accused to give unsworn statements from the
dock instead of giving them an opportunity
to give evidence under
oath so that they can be cross-examined in order to test their
credibility.
1.5 The magistrate
subjected the accused to cross-examination on the basis of their
unsworn statements and thereby extracted admissions
prejudicial to
the accused.
2.
AD
MERITS
2.1 Can it be said
that on the evidence presented by the state it has been proved beyond
reasonable doubt that the accused broke
into the business premises?
2.2 Even if it can
be said that the accused were in possession of the stolen liquor, was
it fair to convict them when they have
not been given an opportunity
to explain their possession under oath?
[3] In response to
the questions addressed to him the magistrate conceded that on both
issues of irregularities and merits of the
case there has been a
failure of justice and that the conviction and sentence ought to be
set aside.
The magistrate’s
sincerity and honesty in this regard is commendable.
[4] The record of
proceedings in the magistrate court were referred to the office of
the Director of Public Prosecutions for his
opinion. The Director of
Public Prosecutions is of the view that there were fatal
irregularities at the trial and that the conviction
and sentence
should be set aside.
[5] The trial
magistrate did not explain the provisions of
section 115
of the
Criminal Procedure Act 51 of 1977
to the accused.
Section 115
offers
a discretion to a presiding officer whether to question an accused or
not. But where an accused is unrepresented, time and
effort should be
taken to explain the provisions of all relevant sections to enable
accused to make an informed decision whether
to disclose the basis of
his defence. It does not suffice, as was done in this case, to merely
ask the accused whether he wants
to tell the court why he pleads not
guilty.
[6] The magistrate
did not explain the right to cross-examination and especially the
purpose thereof to the accused. For the magistrate
just to ask an
accused whether he follows the testimony of a witness and agrees with
what the witness told the court is insufficient,
especially as it is
clear from the record that the accused had no idea how to
cross-examine or how to present evidence.
[7]
In S
v Ndou
2006
2 SACR 497
(T) 500e-g SOUTHWOOD J had this to say:
“
The
right to cross-examination is of vital importance. It is of no use to
the accused to be told of this right if he does not know
what it
entails. What is required to be explained appears in S
v
Tyebela
1989
2 SA 22
(A) 32A-C where the court said:
‘
Furthermore,
when the first state witness had finished his evidence-in-chief,
there should have been an explanation to the appellant
and his
co-accused as to their right to cross-examination and some indication
as to how they should conduct a cross-examination
and that it was
their duty to put to the state witnesses any points on which they did
not agree with the state witnesses, and put
their version to the
state witnesses.’”
[8] During the
course of the trial the magistrate entered the arena. At several
instances, more in particular at page 3 lines 14
to 25 and page 4
lines 1 to 13 of the record he took over from the prosecutor and
actually led the evidence-in-chief. This irregularity
prejudiced the
accused more so that the questions posed where leading questions.
[9] At the close of
the state case the magistrate did not explain to the accused their
rights properly. The following explanation
was given to the accused:
“
The
state case is closed. You can present your case, you do this by
testifying yourself, you can call witnesses, you can only choose
to
close your case without calling witnesses, without testifying, but
you must remember that what you told the court when you pleaded
and
the questions that you asked these witnesses that were called is not
testimony on your behalf.”
Apparently accused 1
elected to testify and accused 2 to make an unsworn statement.
Whether accused 1 chose not to testify under
oath and whether he was
simply not sworn in is unclear from the record. Neither of the
accused was informed of the consequences
of their decision. It was
even more damaging and/or prejudicial to accused 2 when he was
questioned by the court on his unsworn
statement.
[10] It is trite law
that the accused’s rights should be fully explained to him.
“
At
the end of the state case it should be clearly explained to an
undefended accused that he has the right to remain silent or to
give
evidence under oath. It should further be explained to him that he
will be subject to cross-examination by the prosecutor
and to
questioning by the court. It should further be explained to him that
the evidence under oath which is tested by cross-examination
carries
more weight than a mere unsworn statement from the dock. It is clear
that this accused did not have his rights fully explained
to him and
that he obviously did not make an informed choice not to testify.”
Per
PRELLER J in
Sv
Mashaba
2004
1 SACR 214
(T) 218c-d:
[11] In my view the
irregularities in this case render the trial unfair and have resulted
in justice not being served.
The
old adage that justice must not only be done but must also manifestly
be seen to be done operates with even greater force under
the new
constitutional dispensation. That means that an objective observer
sitting on a trial must come away with a clear feeling
that the
accused has had a fair trial. This also applies to a judge reading
the record on automatic review - see S
v
Mashaba supra
at
page 216a-b.
[12] I am of the
view that the irregularities in this case resulted in a failure of
justice and the conviction and sentence should
be set aside on this
ground alone.
[13] Furthermore
with regard to the merits of the case the state did not prove its
case beyond reasonable doubt. The state called
three witnesses, Mr
Sifiso Mabaso (the owner of the store) Constable M J Mashaba (the
arresting officer) and Mr Bheki Makhanya,
an eyewitness.
[14] Mr Mabaso
testified that he went to the shop after he received a report of a
break in. He met the suspects on his way to the
shop and proceeded to
report the matter to the police. At no stage during his evidence did
he place the accused at the scene or
identify the accused as the
suspects that he found on his way to the shop. He did not testify as
to when and where the accused
were found, who had what in his
possession, what were they doing or if any explanation was given.
[15]
The second state witness did not take the matter any further. The
accused were brought to the police station and the second
state
witness arrested them. The court
a
quo
stopped
the state from leading any explanation that may have been offered by
the accused.
[16] The third state
witness does not assist the state’s case. The witness admitted
that he did not see who broke into the
shop. He later saw that the
accused had liquor in their possession.
[17]
This is a typical case wherein the court a
quo
should
have applied
section 174
of Act 51 of 1977
mero
motu
and
discharged the accused at the close of the state case. See S
v
Ndlangamandla
1991
(1) SACR 391
(T) 393g-h.
[18] The conviction
and sentence in respect of the two accused are set aside.
E M MAKGOBA
JUDGE OF THE
NORTH GAUTENG HIGH COURT
I agree
LEGOOI
JUDGE OF THE
NORTN GAUTENG HIGH COURT
IN THE ORDINARY
COURSE OF EVENTS