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[2019] ZAFSHC 96
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S v Moloi and Others (121/2019) [2019] ZAFSHC 96 (28 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
Review No: 121/2019
In
the matter between:
THE
STATE
And
LEFASO
MOLOI AND 2 OTHERS
CORAM:
DAFFUE, J
et
MOENG, AJ
JUDGMENT
BY:
MOENG,
AJ
DELIVERED
ON:
28
JUNE 2019
[1]
This matter came before me by way of special review in terms of
section 304A of the Criminal Procedure
Act 51 of 1977(CPA). In his
request for review, the regional magistrate indicates that he
mistakenly pronounced in his verdict
that accused 4 is convicted as
an accessory after the fact to murder whereas he intended to convict
him as a perpetrator, who committed
the offence in the furtherance of
a common purpose with other participants. He as a result requested
the High Court to amend his
judgment and to pronounce accused 4
guilty of murder on both counts as a perpetrator, in the furtherance
of a common purpose, read
with the provisions of
section 51(1)
of the
Criminal Law Amendment Act 105 of 1997
.
[2]
Accused 4 was charged in the regional court on two counts of murder
together with four other accused
persons. The state alleged that the
accused persons killed the deceased in the furtherance of a common
purpose. On 20 February
2019 accused 2 and 5 were acquitted on both
counts and the following was recorded in respect of accused 1, 3 and
4:
“
Accused
1, 3 and 4 are found GUILTY on the competent verdict as accessories
after the fact;
Accused 4, Court is
satisfied that he took part with common purpose with the other
unknown people in murdering the first and second
deceased person”.
[3]
The entry on the J15 charge sheet indicates as follows:
“
Accused
4 is guilty as charged on count 1 and 2. “Accused 1 and 3
guilty accessory after fact on count 1 and 2”.
What
was recorded on the J15 was therefore different from what was
pronounced on record. What was pronounced will logically be regarded
as the judgment of the court.
[4]
The matter was postponed to 10 April 2019 for sentence and on the
latter date, the legal representative
for the accused persons
contended that the provisions of
section 51(1)
of the
Criminal Law
Amendment Act 105 of 1997
were not applicable as his clients were not
convicted on the main counts of murder but as accessories after the
fact. The regional
magistrate as a result sought to clarify his
judgment but the legal representative alerted him to the provisions
of
section 176
of the CPA which in his view barred such
clarification.
[5]
Accused 4 resultantly implored the regional magistrate to refer the
matter to this Court for review.
He submitted that the regional
magistrate committed a gross irregularity in clarifying the judgment
contrary to the provisions
of
section 176
of the CPA. This
resultantly prompted the regional magistrate to refer the matter to
this Court for review in terms of
section 304A
of the CPA.
[6]
In his letter requesting a review of the proceedings, the regional
magistrate submits that he only became
aware of the mistake when the
legal representative failed to address him on whether there were
substantial and compelling circumstances
warranting a lesser
sentence. He was as a result precluded from amending his judgment in
terms of
section 176
of the CPA due to the long passage of time.
Relying on Hiemstra’s Criminal Procedure at page 21-81, the
regional magistrate
submits that
the
mistake may be corrected on review.
[7]
Section 176
provides as follows:
“
When
by mistake a wrong judgment is delivered, the court may, before or
immediately after it is recorded, amend the judgment”.
The section can
admittedly only be invoked where there is a mistake inherent in the
judgment which does not relate to the merits.
It was held in
S
v Moabi
1979 (2) SA 648
(B) that
"by
mistake" it is implied a misunderstanding or an inadvertency
resulting in an order not intended. In practice, verdicts
are
normally amended when due to
an oversight or slip of the
tongue the presiding officer pronounces a verdict that he did not
intend.
[8]
The key question is whether the verdict that was pronounced was the
result of an inadvertent mistake
by the regional magistrate or
whether it was a result of the reasons of his judgment. It is
therefore from the reasons of judgment
that I will have to determine
whether the verdict went against the grain of his
ratio decidendi
and therefore pronounced by mistake.
[9]
The following is reflected at page 452 of the record, at line 13 to
18 of the judgment:
“
Accused 4 was seen
to be assaulting, in the company of others, assaulting the deceased.
So, the Court is satisfied with regard to
the direct unopposed and
unchallenged evidence of Kgatoane about accused 4’s role in the
assault of the two deceased by accused
4 and other unknown people”.
[10] He
states in line 20 to 25 that:
“
But to cap it all,
he is also part of the accessory after the fact, also when he was
with accused 1 and accused 3 and Miya. The
Court is satisfied that
accused 4 was part with the doctrine of common purpose with other
people involved in the killing of the
two deceased…”
[11] He
lastly states at page 453 at line 8 to 11 that:
“
With reference to
the issues of the accessory after the fact as the Court has
mentioned, accused 1, 3 and 4, they all acted with
the common purpose
and they all did the same in being accessories after the fact”
.
The regional magistrate
then proceeded to convict the accused persons as indicated in
paragraph 2 above.
[12]
It
goes without saying that the verdict that the regional magistrate
delivered was a culmination of
the reasons for his judgment and was
in line with his reasoning for having convicted the accused. He
clearly intended to convict accused 4 as an accessory after the
fact
and as a perpetrator in the furtherance of a common purpose. The
regional magistrate conflated the issues of participation
and the
accessory nature of the accused participation. I do not deem it
necessary to make a finding on this aspect as I am not
called upon to
decide thereon.
[13] The
verdict was in my view deliberately given and not by mistake as
envisaged by
section 176.
An error on the principles of participation
cannot translate into a mistake which may be corrected in terms of
section 176.
I am of the view that an order which was given after
consideration of the merits of the case cannot be amended simply
because it
is exposed to criticism. The record reflects that the
regional magistrate was unaware of his purported mistake until the
legal
representative brought this under his attention during the
sentencing deliberations. The following exchange between the legal
representative
and the regional magistrate demonstrates this:
“
Being
an accessory after the fact is a supplementary offence, which means
that someone can only be convicted of being an accessory
to someone
else’s crime, never in respect of the accessory’s own
crime”,
to
this the regional magistrate responded
“
that
is relevant for the appeal. It is not relevant for the sentencing”
.
[14]
S
v Kaipa
1993 (2) SACR 420
(Nm) is an example of an instance where the court
was not prepared to exercise its powers under
section 304(2)(c)(iv)
of the CPA to make the order that the magistrate 'ought to have made’
in amending its judgment. The magistrate was unaware
of the error
that he had committed until he reread the record more than a month
after he had made the error. It can hardly be said
that the
magistrate ought to have exercised his power under
section 176
to
correct the error when in fact he was unaware of the need to exercise
such power.
[15] Even if
he may timeously have become aware of such error, he could not have
corrected same as it was not a mistake
envisaged by
section 176.
In
these circumstances, I do not regard the order that the magistrate
had asked the High Court to make as an order that he
ought to or
could have made.
[16]
Hiemstra in my view succinctly sets out the legal position at page
22-81:
“
A judgment which
is based on the evidence placed before the court may be wrong, but it
cannot be given by mistake as contemplated
here. Such judgment is
final and the court has no competence to reconsider or amend it,
either by virtue of its general inherent
powers or in terms of
section 176
”
[17]
I align myself with the view that
High
Courts should be slow to intervene in unterminated proceedings, and
should, generally speaking, confine the exercise of its
powers to
'rare cases where grave injustice might otherwise result or where
justice might not by other means be attained’.
See
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
,
1959 (3) S.A. 113
(A.D.) and
Sebitloane
v Regional Magistrate Sepato and Another
Case 191/2014, an unreported judgment in the Free State High Court
delivered on 26 January 2016.
[18] I do not
believe that this is one of those rare cases that warrant
interference. The regional magistrate has in
my view, based on the
evidence and the reasons for his judgment, given reasons why he was
satisfied that accused 4 was a perpetrator.
It will be for him to
decide whether the provisions of
section 51(1)
of the
Criminal Law
Amendment Act are
applicable.
[17] In the
result I propose to make the following order:
1.
The
case is remitted to the Regional Court for further hearing and
conclusion of the sentence proceedings
L.B.J.
MOENG, AJ
I
concur and it is so ordered.
J.P DAFFUE, J