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[2020] ZALMPPHC 94
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Raphotle v S (A77/2015) [2020] ZALMPPHC 94 (4 September 2020)
REPUBLIC OF
SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE NO: A77/2015
In
the matter between:
ALFRED
VOSKY
RAPHOTLE
APPELLANT
And
THE
STATE
JUDGMENT
SEMENYA
J:
[1]
The appellant in this matter was convicted in the magistrate court on
a charge of robbery. He was subsequently sentenced to
R4000.00
(four thousand rand or two (2) years’ imprisonment. The trial
court dismissed application for leave to appeal to this court.
Leave
to appeal against conviction and sentence was eventually granted on
petition to the Judge President of this Division.
[2]
The parties agree, albeit on different grounds, that the appeal
against both conviction and sentence should succeed. Counsel
for the
appellant submitted that the trial court misdirected itself
procedurally as well as on the merits. Counsel for the respondent
on
the other hand contended that the conviction and sentence should be
set aside but that the matter should be remitted to the
magistrate
for trial
de novo
before another judicial officer. I am in
agreement with counsel for the appellant’s contention for the
reasons that will
appear clearly hereunder.
[3]
The conviction of the appellant followed on single evidence of the
complainant Samuel Ngobeni. He testified that on the date
of the
incident he was walking alone in the street when he was accosted by
the appellant who struck him with a bottle and robbed
him of an
amount of
R54.00
. He stated that he did not know the exact
time at which the incident occurred but that it was at night. When
asked about the state
of visibility he stated that it was clear. He
could not tell what the source of light came from. He maintained that
he and the
appellant were neighbours and that he could not mistake
him for another person.
[4]
Counsel for the appellant informed the court that there are material
discrepancies between the version that the complainant
tendered in
court and what is contained in the statement that he made to the
police. The complainant confirmed that the fingerprint
that appeared
on the document was his but denied that he took an oath before he
made it. He stated further that the contents of
the statement were
not read back to him and that the police officer who was taking the
statement was not speaking his language.
[5]
Procedural irregularities raised by both counsel came about when the
defence attorney indicated that she intends to cross-examine
the
witness on police statement. The attorney asked the complainant few
questions clearly with a view of laying the required basis.
The
complainant admitted that he signed a statement by affixing his
thumbprint on it. However, the complainant denied that the
statement
was read back to him. He stated that the police officer was speaking
in Sepedi and that he, the complainant speaks Tsonga.
Seeing that the
attorney was adamant in wanting to prove that the statement was
authentic, the trial court allowed her to lead
the evidence of the
police officer who obtained it. This happened after the trial court
had informed the attorney that he can assure
her that a trial within
a trial would not take them anywhere as it is not going to change
what the complainant has said. He reiterated
that the procedure of a
trial within a trial will simply be a waste of time. The trial court
informed the attorney that according
to his and human experience
police officers never administer oath but that they just put a stamp
and order people to sing. He stated
that he knows this fact as it
happened to him on many occasions when he went to the police station
to report cases.
[6]
Constable Chauke was called to testify in a trial within a trial
after the State had closed its case. He testified about the
standard
procedure that police officers follow when they take witness’
statements. He stated that police will use the language
that the
witness is well conversant with. That the statement will then be read
back to the witness who will thereafter append his/her
signature on
it. He stated that he was speaking to the complainant in Tsonga. He
confirmed during cross-examination by the appellant’s
attorney
that he applied the said procedure on the complainant. When asked by
the court as to whether the complainant singed the
statement he said
yes. The court then showed him a thumbprint on the statement and he
confirmed that it was that of the complainant.
[7]
The complainant was recalled to the witness stand. Before she could
cross-examine the witness, the appellant’s attorney
enquired as
to whether the court will allow her to cross-examine him on the
contents of the statement. The court stated that it
had not yet made
a ruling and that cross-examination should be restricted to what the
police officer has said. The complainant
denied that constable Chauke
is the police officer who obtained his statement. He stated that he
does not know the officer who
obtained his statement as he found many
police officers seated around a table. He confirmed that his
thumbprint was affixed to
a statement and this happened after he had
stated that he is going to tell the truth and the whole truth only.
When asked as to
where did Chauke get his personal details from, he
stated that he might have obtained his statement but that he cannot
say that
with certainty. At the end of what was referred to as a
trial within a trial, the court denied the attorney permission to
cross-examine
on the statement. The reasons for this ruling as they
appear on the record are that the police officer was speaking to the
witness
in Sepedi while the complainant was speaking in Tsonga.
Furthermore, the trial court indicated that the statement was written
in
broken English. It is evident that in its evaluation of the
evidence presented in a trial within a trial, the court erroneously
ignored the shortcomings in the answers furnished by the complainant.
[8]
It is necessary, in my view, to differentiate between the procedure
that is applied in a criminal trial in order to determine
the
admissibility of an extra-curial statement made by the accuseed and
that used to authenticate a document. This is so in that
a witness
statement is classified as a document. The admissibility of the
evidence contained in a document, as opposed to the weight,
is
determined after a trial within a trial has been held-see
National
Director of Public Prosecutions v Viljoen 2005(1) SACR 501 at
[41-42]
. Sections 217, 218 and 219A of the Criminal Procedure act
51 of 1977 permits the admissibility of extra-curial statements made
by accused persons such as a confession, provided that such
statements meet certain requirements. However, these sections must be
read in conjunction with section 35(5) of the Constitution which
provides that evidence obtained in a manner that violates any
right
in the Bill of Rights must be excluded if the admission of that
evidence would render the trial unfair or otherwise be detrimental
to
the administration of justice. It is common knowledge that
almost all extra-curial statements made by accused persons
are
obtained by the police in the course of investigation of crime. A
trial within a trial procedure is a stringent procedure designed
to
assist the courts in guarding against a conviction of an accused
person on the evidence that may have been obtained in violation
of
the Bill of rights. The police who were involved in the acquisition
of the statement will be subjected to cross-examination
in order to
determine whether the statement was made freely and voluntarily.
[9]
The attorney in the present matter informed the court that the
version of the appellant differs from what he has told the police.
It
is evident from that address that cross-examination based on the
contents of the statement was intended to discredit the witness.
In
S
v Tshabalala
1999 (1) SACR 163
(T)
it was held that a witness
statement may be used by an accused person for the purposes of
cross-examination, subject to the rules
of the law of evidence and
the admissibility of statements. If a witness’ statement is
sought to be used during cross-examination,
it has first to be
established that the statement was that of the witness. In other
words, it must be established that the statement
was either written,
executed or made by the person who purported to have made it, or was
made on his instruction. Some of the common
questions asked to
authenticate the statement include the language in which the maker
and the writer have used, whether it was
made freely and voluntarily,
whether the maker appended a signature or a thumbprint on the
statement.
[10]
It appears from the decision in
S v Swanepoel and Another 1980 ()
SA 144 (NC)
that a trial within a trial is not a procedure that
should be adopted to authenticate a statement. It was further held in
that
case that if the statement cannot be authenticated by the person
who is purported to be the author, the court should allow the accused
in a criminal case to cross-examine the witness on the statement and
thereafter admit it provisionally, with a view that he may
authenticate it when his turn to testify comes. It should be
remembered that police officers are competent and compellable
witnesses
who may be called by any party in a criminal case. The
accused is at liberty to call a police officer who obtained the
witness’
statement in order to authenticate it. Should that
happen, the court will finally admit the statement. It is therefore
not necessary
to go into a trial within a trial solely for the
purposes of proving previous inconsistent statement.
[11]
The trial court relied on
S v Pitout
2005 (1) SACR 571
(BD) and S
v Mafaladiso and Others
2003 (1) SACR 583
(SCA)
to preclude the
attorney from cross-examining the complainant with a view of proving
previous inconsistent statements. It is noticeable
that the courts in
the two judgments simply referred to the laying of a proper basis
before cross-examination can proceed along
those lines. It appears
clearly that the court did not prescribe that such basis should be
laid through a trial within a trial.
My view is that the two
authorities deal mainly with a proper approach to the evaluation of
contradictions that are apparent between
the oral evidence tendered
in court and the contents of the statement. A step which will follow
once the statement has been found
to be authentic.
[12]
I find that the magistrate’s reliance on his personal
experiences with regard to the manner in which he was oftentimes
treated by the police is irrelevant. Had he wanted to rely on
judicial notice of those facts, he would have stated it in
unambiguous
terms. The unfortunate remarks he made regarding the said
treatment can only point to bias against the police. One may safely
conclude
that the trial court’s attitude towards the
appliaction made by the defence attorney was influenced by the
knowledge that
the procedure will eventually lead to the calling of
the police officer who obtained that statement, the evidence he was
clearly
not prepared to listen to. Regrettably, the violation of
Constable Chauke’s right to dignity is so glaringly evident on
the
face of the record.
[13]
The trial court erred in denying the attorney an opportunity to
provisionally cross-examine the complainant on the contents
of the
police statement when it became obvious that it cannot be
authenticated through him. This is a material irregularity in
that it
denied the defence the opportunity to prove that the complainant’s
version could not be believed. The complainant
is a single witness.
The cautionary rule is applicable in this instance. It was important
to determine whether he is ruthful in
all material respect and that
he did not deviate from what he had told the police.
[14]
So much so on the procedural aspect of this case. I shall now turn to
the merits of the case. The appellant testified in his
defence. He
denied the allegation levelled against him. He testified that he was
at home on the night of the incident and could
not rob his next door
neighbour. The state’s case rested squarely on single evidence
of the complainant. It is tried that
such evidence must be evaluated
with caution as envisaged in
S v Mthethwa
1972 (3) SA 766
(A)
and all other judicial decisions that followed it, more so in that
the incident took place at night. In accepting the complainant’s
version and rejecting that of the appellant, the trial court stated
that there can be no mistaken identity in this case as the
appellant
and the complainant are neighbours and not strangers. He further
stated that the incident took place at
19:00
, a fact which is
clearly not supported by the facts. The complainant did not want to
be specific about the approximate time at
which the incident
occurred. He simply testified that the incident took place at night.
He made a bold statement that he could
see and identify people but
could not tell the court the source of the illumination. It would
appear that the trial court placed
more emphasis on the complainant’s
version that the appellant is known to be a robber by the community.
[15]
It is indeed so that the duty is on the State to prove the guilt of
an accused person beyond reasonable doubt. Whether or not
that onus
was discharged will depend on the totality of the evidence that was
adduced before court. The judgment of the trier of
fact should
account for all the evidence that came before it-
S v Van
Aswagen 2001(2) SACR 97 (SCA).
It would appear that the trial
court convicted the appellant solely on the basis that he and the
complainant are neighbours and
that he could not have made a mistake
regarding identity. This is however not the proper test. The trial
court was required to
satisfy itself beyond reasonable doubt, not
only that the complainant knows the appellant, but further that the
appellant is beyond
reasonable doubt, the person who robbed him. The
complainant’s bold statement that the appellant is the person
he saw in
the dark is less than satisfactory. I find that this is a
proper case where the appeal court can interfere with the factual
findings
of the trial court as they are clearly wrong-
R v
Dhlumayo and another
1948 (2) SA 677
(A).
[15]
I am not in agreement with counsel for the respondent’s
submission that the matter be remitted to the magistrate court
for
trial de novo in view of the poor evidence that has been presented in
this matter. In any event, somewhere in the middle of
the trial the
complainant indicated his unwillingness to proceed with the trial. It
shown that he will not have any interest in
testifying again
[16]
Having said so I find that the appeal on conviction against
conviction and the sentence imposed by the trial court stands to
be
set aside and in the result I make the following order:
i. The appeal on
conviction and sentence succeeds.
Ii The conviction
and the resultant sentence are set aside.
M.V
SEMENYA
JUDGE OF
THE HIGH COURT
I
agree
M.V
SEMENYA
ACTING
JUDGE OF THE HIGH COURT.
APPEARANCES:
ATTORNEYS
FOR THE APPELLANT : LEGAL AID SA.
COUNSEL
FOR THE APPELLANT : ADV.
MP LEGODI
ATTORNEYS
FOR THE STATE
: DPP POLOKWANE;
LIMPOPO
COUNSEL
FOR THE STATE
: SITHADA
RESERVED
ON
: 07 AUGUST 2020
JUDGMENT
DELIVERED ON
: 04
SEPTEMBER 2020