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[2011] ZAGPPHC 122
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Mchiza v S (A349/2010) [2011] ZAGPPHC 122 (15 July 2011)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT, PRETORIA)
CASE
NO:A349/2010
DATE:15/07/2011
In
the matter between:
MCMILLAN
VULINDLELA MCHIZA
…....................................................................
APPELLANT
And
THE
STATE
........................................................................................................
RESPONDENT
JUDGMENT
MAVUNDLA
J,
[1]
The appellant was convicted by the Regional Court in Vereeniging on
28 January 2009, on contravention of section 3(a)(i)(aa)
of Act 12 of
2004 (corruption) and sentenced to six years imprisonment Leave to
appeal against both the conviction and sentence
was granted on
petition.
[2]
The applicant approached this Court by way of a notice of motion,
seeking an order for the setting aside of his conviction and
sentence, and for the remission of the matter to the Regional Court
in Vereeniging for a hearing de novo, alternatively for the
hearing
of further evidence to be adduced by the defence witnesses to be
subpoenaed on his behalf.
[3]
The appellant brought an application for condonation of the late
filing of his heads of argument, which was not opposed and
consequently granted. I shall say no more about this aspect.
[4]
Essentially the applicant seeks leave to adduce further evidence. In
motivating this application, the applicant contends that
he did not
have a fair trial because his erstwhile legal representative
consulted him briefly and once just before the trial commenced.
He
further contended that the legal representative failed to arrange for
certain witnesses to be called on his behalf. It was further
submitted that his erstwhile legal representative did not effectively
cross examine witnesses, in particular Captain Majola, who
was
involved with project Vica, the authority in terms of S252A of Act 51
of 1977.
[5]
The evidence the applicant seeks to have adduced is an organogram,
which he contends would indicate that Captain Majola was
indeed the
initial investigating officer of the project Vica. This evidence, so
it was contended by the applicant, would demonstrate
that Captain
Majola, framed him in these proceedings.
LEGAL
POSITION ON APPEAL
[6]
In dealing with this application, I need to bear in mind that the
Supreme Court Act provides inter alia, that-S22 Powers of
Court on
hearing of appeals: The appellate division or a provincial division,
or a local division having appeal jurisdiction shall
have power (a)
on hearing an appeal to receive further evidence either orally or by
deposition before a person appointed by such
division, or to remit
the case to the court of first instance, or the court whose judgment
is the subject matter of the appeal,
with such instructions as
regards taking of further evidence or otherwise as to the division
concerned seems necessary;
(b)
to confirm, amend or set aside the judgment or order which is the
subject matter of the appeal and to give any judgment or make
any
order which the circumstances may require.'"
[7]
The court of appeal has a wide discretion to allow the re-opening of
a case after conviction, for the hearing of further evidence.
Such a
discretion is used sparingly and in special circumstances, if it is
found that it is in the interest of justice to do so
and would not
defeat the principle of finality to matters; vide Rail Commuters
Action Group v Transnet Ltd t/a Metrorail.
1
[8]
The appellant was convicted on a count of fraud. It is common cause
that the appellant was employed as a member of the South
African
Police Service. It is also common cause that the appellant was a
manager of project known as Vica Project which was investigating
syndicated motor vehicle theft. One of the targets in this operation
was the complainant, Mr. Molimi.
[9]
It is common cause that Mr. Molimi was not physically known to the
appellant. The evidence, which was led and accepted against
the
appellant, was that the appellant telephonically contacted Mr.
Molimi, the complainant, advising him that he wanted to talk
to him
about something which he would not want to discuss over the phone.
The appellant advised the complainant to meet at Benoni
Magistrates
court.
[10]
On the 6 October 2007 the complainant was accompanied by his friend
Mr. Ndlovu to the agreed meeting place. On arriving at
the agreed
meeting place, the complainant went out of his motor vehicle leaving
Mr. Ndlovu alone, while he went to buy air time.
On his return to the
motor vehicle, the appellant told him to leave as he wanted to talk
to Mr. Molimi alone, who he thought was
Mr. Ndlovu. The complainant
obliged to this request. On his return to the motor vehicle after the
appellant had left, Mr. Ndlovu
informed him of his discussion with
the appellant, the nature of which was an offer to exchange various
documents purportedly incriminating
the complainant in motor vehicle
theft, for a sum of money in order to abort the investigation against
him. Mr. Ndlovu further
advised him that the appellant arranged to
meet with him at Nando's for the exchange of the documents and money.
The complainant
reported the matter to the police and subsequently
met with Captain Majola who set up a trap.
[11]
The complainant further testified that Captain Majola handed to both
him and Mr. Ndlovu an amount of R20, 000, 00 that was
to be handed to
the appellant at Nando's. However the appellant did not honour the
meeting. He was subsequently telephonically
contacted by the
appellant who rescheduled the meeting to a pub in Benoni, which he
gave him the directions of.
[12]
The complainant further testified that, after informing Captain
Majola of this new venue, he together with his friend Mr. Ndlovu
proceeded to Manzini pub. At the pub Mr. Ndlovu entered alone while
he remained in the motor vehicle. Mr. Ndlovu re-emerged and
invited
him into the pub where the appellant showed him where to sit. The
appellant and Mr. Ndlovu went to a snooker table. Shortly
thereafter
they left and followed the appellant in his motor vehicle into back
street where Mr. Ndlovu went alone to the appellant's
motor vehicle.
The latter returned without the documents and without having handed
the money to the appellant.
[13]
Mr. Ndlovu testified that on the 5 October 2007 after he dropped the
complainant at his home, that evening the latter teiephonically
requested him to come to his place in the morning. Indeed in the
morning of the 6 October 2006 he together with the complainant
proceeded to a place next to Benoni magistrates court. The
complainant alighted and went to a shop. The appellant came to the
motor vehicle, knocked at the window, addressed him as the
complainant and invited him across the street saying that he wanted
to talk to him. Mr. Ndlovu then realised that the appellant does not
know the complainant physically. He proceeded to play along
as the
complainant.
[14]
According to Mr. Ndlovu, the appellant, who believed that he was the
complainant, told him that he has various documents implicating
him.
Mr. Ndlovu informed the appellant that he was awaiting a call from
Alexendra where he must go fetch an amount of R50, 000,
00. The
appellant indicated that, this amount would be enough and the
"complainant" should bring it in the afternoon.
[15]
Mr. Ndlovu informed the complainant of his discussion with the
appellant, who in turn reported the matter to the police. Captain
Majola then arranged to set a trap. In this regard the Captain handed
to both complainant and Mr. Ndlovu an amount of R20, 000,
00 which
was to be handed to the appellant. The meeting with the appellant was
supposed to take place at Nando's in Kempton Park.
However, the
appellant did not honour the appointment. However, the meeting was
rescheduled to Manzini pub. Captain Majola was
informed of the
changed venue.
[16]
Mr. Ndlovu further testified that he proceeded with the complainant
to the Manzini pub. At the pub, he first inquired from
the appellant
whether it was in order if he were to come in with the complainant.
The appellant agreed to the inquiry, Mr. Ndlovu
then fetched the
complainant. When they entered the pub, the complainant was greeted
by a number of people as they went to take
a seat. The appellant
remarked that the complainant seems to be well known to many people
and seems to be a fronting person. The
appellant invited him to the
snooker table, once there Mr. Ndlovu inquired from him of the
documents. The appellant told him that
the documents are available
but did not have them with him at the moment. The appellant told him
to follow him in their motor vehicle,
which they did.
[17]
Mr. Ndlovu further testified that they followed the appellant into a
back street. The appellant told him that the documents
are
available
and they would fetch them later. He informed the appellant that this
was not what they had agreed to. The appellant failed
to produce the
documents and they parted ways.
[18]
Captain Majola confirmed the evidence of both the complaint and Mr.
Ndlovu informing him about their respective discussions
with the
appellant and the amount of R20, 000, 00 which he subsequently gave
to them for purposes of handing it to the appellant,
for the exchange
of the documents from the appellant. Captain Majola further testified
about the exhibit A document revealing that
the telephone contacts
between the appellant and the complainant on the latter's cell phone
number 0827663817 originated from the
telephone of the office of the
appellant, number 011-570900. Majola also confirmed that, according
to the document at 21h27 a call
was received from cell phone number
071335 727 on the complainant's cell phone. The owner of the last
mentioned cell phone number
informed him that the appellant, on that
particular time and date, borrowed his cell phone. He further
testified that at 21H02
the complainant received another cell phone
call from cell phone number 072808 3805, whose owner confirmed that
he was with the
appellant at Emanzini pub on the d and time day and
time in question, when the latter borrowed his cell phone. He also
testified
that the appellant was the manager of Project Vica which
was a covert operation investigating the target Mr. Molimi's
involvement
in stolen motor vehicles. He further confirmed that there
was friction between himself and the appellant regarding the use of a
police motor vehicle, but denied that this would have prompted him to
pervert the truth against the appellant, whom he had high
regard as a
competent investigating officer.
[19]
The State also called Mr. Sitanani and Mr. Lukhele. I deem it not
necessary to chronicle their evidence because nothing much
turns
around their evidence. It suffices to state that Mr. Sitanani
confirmed that the appellant was at the Manzini pub on the
6 October
2007. Mr. Lukhele confirmed that on 6 October 2007 the appellant made
use of his cell phone with number 0728083805 while
he was at Manzini
pub.
[20]
The complainant, Mr. Ndlovu and Captain Majola were also extensively
cross examined. The version of the appellant, which was
a denial of
their respective evidence relating to the appellant. However, nothing
of significance came out of the cross examination
as all the
witnesses, steadfastly remained in their testimony.
[21]
I have carefully perused the record. Nowhere was it contended during
the trial that the appellant requested that this organogram
brought
by the State. Neither was the magistrate requested to direct the
State to produce such evidence. The proceedings commenced
on 25 June
2008 and was completed on 28 January 2009. Besides, Captain Majola
was the first witness for the State. The appellant
does not state in
his application why this evidence was not adduced during the trial.
[22]
The defence of the appellant that he was framed by Captain Majola was
considered and rejected by the Magistrate. Assuming that
the
appellant was framed by Captain Majola, it would mean that Captain
Majola schooled all the witnesses to pervert the truth against
the
appellant. The difficulty with this proposition is that the
magistrate found the witnesses of the State to be credible and
reliable. In this regard, it needs borne in mind that in the absence
of demonstrable evidence on the record to the contrary, the
acceptance of evidence and factual finding by the trial court is
presumed to be correct, and a court of appeal will not interfere
therewith; vide S v Francis2
2
.
[23]
Even if it were to be found that Captain Majola lied about the fact
that he was the initial investigating officer, this in
my view, would
not assist the appellant in any way. The mere fact that a witness
told a lie on one aspect, does not mean that his
entire evidence, or
even the rest of the other witnesses' evidence must be thrown out of
the window. It is, in my view, preposterous
to even think that all
the witnesses connived to pervert the truth. There is no basis laid
why the evidence of the other witnesses
that implicated the
appellant, must be rejected. In my view, the appellant has not
acquitted himself of the duty to demonstrating
the weight of the
materiality of the evidence he seeks to have led and that it would
make much difference to his conviction.
[24]
The applicant further contend that his initial attorney was
incompetent and as the result did not have a fair trial. It needs
to
be borne in mind that seldom would a convicted person give credence
to his legal representative. Generally, the incompetence
of the legal
representative is a matter of hind sight after conviction.
3
[25]
With regard to the appellant's contention that his erstwhile legal
representative failed to call witnesses, it must be borne
in mind
that, the calling of witnesses is a matter of the discretion of his
legal representative. A court of appeal cannot assail
the legal
representative's discretion as to how he conducts the defence. The
court of appeal can only intervene, when it is clear
from the record,
that the appellant expressed during the trial a desire to call
further witnesses but was ignored or denied this
opportunity, which
is not reflected on record in casu.
[26]
Concerning the question of the competence or lack thereof of his
erstwhile legal representative, must be adjudged on an objective
assessment of the evidence on record, bearing in mind that seldom are
convicted persons content, let alone being gracious, to their
legal
representatives. Brevity on cross examination, is not an indication
of incompetence. Skilled counsel, with terse questions
can achieve
devastating results far better than verbosity. However, what is
significant in casu, is the fact that the version of
the appellant,
which was the denial of his involvement and the veracity of the
account by the State witnesses, was put to all the
State witnesses by
his alleged incompetent legal representative. The magistrate
carefully considered the evidence of all the State
witnesses and
concluded that they are truthful and reliable and in my view, cannot
be faulted in that regard.
[27]
In the circumstances, I am not persuaded that the applicant has made
a case to justify the setting aside of the judgment of
the magistrate
and referring this matter to be tried de novo and for the hearing of
further evidence. The application must therefore
fail.
[28]
In the premises I make the following order:
1.
That the application for the setting aside of the applicant's
conviction by the Regional Court in Vereeniging on 28 January 2009
and for the remission of the matter to the Regional Court in
Vereeniging for a hearing de novo is dismissed;
2.That
the conviction and sentence of the appellant by the Regional Court in
Vereeniging on 28 January 2009 is confirmed.
NM.
MAVUNDLA
JUDGE
OF THE HIGH COURT
I
agree
N.
KOLLAPEN
JUDGE
OF THE HIGH COURT
DATE
OF JUDGMENT : 15/07/2011
APPELLANT'S
ATT : MATEME & MAKGAHLELE ATT
APPELLANT'S
S ADV : MR. M. VAN WYGNGAARD
RESPONDENT'S
ATT: DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT'S
ADV: MR M.M. MASHUGA
1
[2004] ZACC 20
;
2005 (2) SA 359
(CC) at 388F-389B para [42]-[43].
2
1991
(l)SACR 198at204c-e.
3
Vide Halgryn v S
2002 (4) ALL SA 157
at I62d-2g; May v S All SA
November[2005] 4 All SA334(SCA) 338d.