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2023
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[2023] ZAFSHC 304
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Hlubi v S (A121/2022) [2023] ZAFSHC 304 (6 June 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: A121/2022
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
CIRCULATE TO MAGISTRATES:
NO
In
the matter between:
THAPELO
HLUBI
Appellant
And
THE
STATE
Respondent
HEARD
ON:
29
MAY 2023
JUDGMENT
BY
:
MHLAMBI,
J
CORAM:
MHLAMBI, J
et
OPPERMAN, J
DELIVERED
ON:
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email and released to
SAFLI. The date and time for
the hand-down are deemed to be 08h30 on 6 June 2023.
[1] The
appellant was convicted on charges of attempted rape, kidnapping and
pointing of a firearm and sentenced
to an effective 8 years’
imprisonment. Having successfully petitioned this court, he was
granted leave to appeal against
the convictions.
[2]
The convictions were assailed on various grounds but the main ground
that was pursued on appeal was that the
appellant did not enjoy a
fair trial
[1]
in that the
cross-examination of the complainant was not completed after it was
interrupted by the attendance of the inspection
in
loco.
[2]
[3] The
appeal was opposed on the basis of the incomplete trial record and
that the matter be removed from the
roll until such time that the
trial record was properly reconstructed. During oral argument, the
respondent conceded the correctness
of the record and abandoned its
opposition of the appeal.
[4]
Mr Nkhahle, who acted on behalf of the appellant, referred to the
certificate of correctness of record filed
by the Regional Court
Magistrate and pointed out that the record was adequate enough for
the proper consideration of the appeal.
[3]
The cross-examination of the complainant was interrupted when an
inspection in
loco
was
held. The cross-examination of the complainant was never continued
and finalised after the inspection in
loco
as
indicated on the case record.
[4]
He contended that the incomplete cross-examination of the complainant
was grossly irregular and vitiated the proceedings. He contended
furthermore that the testimonies of the other two witnesses called by
the state did not implicate the appellant in anyway.
[5]
It was stated in the judgment that the state’s case was based
on the evidence of a single witness. The
complainant’s
credibility was therefore of the outmost importance. The incomplete
cross-examination denied the defence a
significant opportunity to
further place her credibility in issue.
[5]
This was an irregularity which negated the appellant’s right to
a fair trial. The conviction must therefore be set aside.
[6] I
therefore make the following order:
ORDER:
The convictions on all
counts are set aside.
MHLAMBI, J
I concur
OPPERMAN, J
On
behalf of the applicant:
Adv.
R. J Nkhahle
Instructed
by:
Thebe
Attorney Incorporated
Suite
18 Keller Park
65
Kellner Street
Bloemfontein
On
behalf of the respondent:
Adv.
S. Tunzi
Instructed
by:
The
Director of Public Prosecutions
3rd
Floor
Waterfall
Centre
BLOEMFONTEIN
[1]
Section
35(3)(i) of the Constitution of the Republic of South Africa Act
108/1996.
[2]
State
vs. Motlhabane and Others
1995 (2) SACR 528
(B) at 532.
[3]
State
vs. Chabedi 2005 (1) SACR 415 (SCA).
[4]
Page
30, lines 20-22 of the transcribed record.
[5]
State
vs. Manqaba
2005 (2) SACR 489
(W).