About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2008
>>
[2008] ZASCA 151
|
|
S v Nomazoza (246/08) [2008] ZASCA 151; [2009] 2 All SA 173 (SCA) (27 November 2008)
THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 246/08
No precedential significance
HAROLD
NOMAZOZA Appellant
and
THE
STATE Respondent
Neutral citation:
Nomazoza
v S
(246/08)
[2008] ZASCA 151
(27 November
2008).
Coram:
CLOETE, MAYA JJA
et
BORUCHOWITZ AJA
Heard:
19
NOVEMBER 2008
Delivered:
27
NOVEMBER 2008
Summary:
Guilt of accused not
proved.
______________________________________________________________
ORDER
______________________________________________________________
On appeal from: High Court, Johannesburg (Horn, Msimeki
JJ sitting as court
of appeal).
The following order is made:
The appeal succeeds. The order made by the court below,
to the extent that it involves the appellant, is set aside and the
following
order substituted:
'The appeal by Harold Nomazoza succeeds. His conviction
and sentence are set aside.'
______________________________________________________________
JUDGMENT
______________________________________________________________
CLOETE JA (MAYA JA and BORUCHOWITZ AJA concurring):
[1] The appellant stood trial in the regional court of
the Southern Transvaal (Johannesburg) as accused 3 together with four
others
on a charge of theft of a motor vehicle. He was legally
represented and pleaded not guilty but was convicted and sentenced to
four
years' imprisonment. His co-accused, numbers 1 and 4, were also
convicted and accused 2 was acquitted after conclusion of the State
case. The trial magistrate granted leave to appeal to the
Witwatersrand Local Division. That appeal was dismissed but leave to
appeal to this court was granted. There is also an application before
this court to remit the matter to the regional court to hear
further
evidence.
[2] The State case was that after the complainant's
vehicle had been stolen between 10h50 and 11h15 at the corner of
Market and
Eloff Streets in the Johannesburg City Centre, the
appellant was found in the driver's seat at the Farraday taxi rank
where the
vehicle was being stripped. Inspector Mokobi said that when
he and colleagues arrived at the taxi rank the appellant was in the
driver's seat, accused 1 was in the passenger seat and accused 2 and
4 were at the front of the vehicle by the engine and the bonnet
was
open. Inspector Serlongo, who arrested the appellant and could
therefore be expected to know where he was when the arrest took
place, said that he was unable to identify which accused was where,
save by reference to the names as recorded in his statement.
However,
he claimed to remember that accused 1, who was the only one of the
accused who had a light complexion by which he said
he recognised
him, was sitting in the driver's seat. He was then referred to his
statement by the prosecutor and he said that it
was the appellant who
was seated on the driver's side and accused 1 was in fact on the
passenger's side. Then, in further cross-examination,
he again said
accused 1 was in the driver's seat but immediately thereafter said
that Harold Nomazoza, ie the appellant, was sitting
there. The only
other State witness, Inspector Ramafemo, could not say where either
accused 1 or the appellant was when they were
arrested.
[3] The State case against the appellant therefore
depends primarily on the evidence of Inspector Mokobi. But both
Inspector Serlongo,
and Inspector Ramafemo who arrested accused 2,
contradicted Inspector Mokobi as to where accused 2 was when they
arrived; and the
magistrate discharged accused 2 at the end of the
State case inter alia on the basis that 'he was not in front of the
motor vehicle',
where Mokobi said he was.
[4] The magistrate found that the 'evidence against [the
appellant] is absolutely overwhelming'. As the above analysis shows,
the
State evidence was not as solid as the magistrate made out.
[5] The appellant's case was that he left Glenanda
Primary School, where he was employed as a painter, at about 09h30
with the permission
of the headmaster. He went home, collected some
documents and took a taxi to the Johannesburg City Centre where he
went to the
Old Mutual at 11h30; and ten minutes later, he went to
Capital Alliance. He said that he had documents to prove all of this
but
they were not handed in by his legal representative and after an
adjournment, the witnesses who could have supported his version
were
not called to testify on his behalf. He was not, however, asked by
the prosecutor to produce the documents and he was accordingly
not
cross-examined on their contents. The appellant then said that he had
gone to the Farrady taxi rank to catch a taxi and that
he had been
there for a while when a policeman arrested him at a shack a little
distance away from the vehicle in question because,
according to the
policeman, he had been pointed out as the person who had been driving
the stolen vehicle.
[6] The appellant's evidence that he was an innocent
bystander and was fetched from a shack near the taxi was corroborated
by accused
1 (who said he did not know the appellant) when
cross-examined by the prosecutor. The appellant was not shaken in
cross-examination
in any way whatever. His version is not so
improbable that it can be rejected out of hand, as the magistrate
did. The record shows
that the appellant was in possession of a
document reflecting his visit to Old Mutual and the business he
transacted there, and
another document from Capital Alliance
generated as a result of instructions he gave at Old Mutual. I fail
to understand why those
documents were not handed in as evidence by
the appellant's legal representative. They plainly did not constitute
hearsay evidence,
as the magistrate found they would have done: there
is nothing which would offend against the hearsay rule if a witness
were to
say 'I visited Old Mutual and they gave me this document; in
consequence of my visit and the instructions I gave, and my
subsequent
visit to Capital Alliance, I received that document'. And
if the appellant had legitimate business in the Johannesburg Central
Business District it is unlikely that he would, before transacting
that business, steal a vehicle and after transacting it, assist
in
stripping the vehicle, particularly because the State failed to prove
any connection, social or otherwise, between the appellant
and his
co-accused; and he would have had an entirely legitimate reason for
being at the Farraday taxi rank. I find it unnecessary
however to
consider the application by the appellant to lead further evidence
because I am satisfied that the State did not prove
his guilt beyond
a reasonable doubt.
[7] In my view the appeal should succeed. The following
order is made:
The appeal succeeds. The order made by the court below,
to the extent that it involves the appellant, is set aside and the
following
order substituted:
'The appeal by Harold Nomazoza succeeds. His conviction
and sentence are set aside.'
_______________
T D CLOETE
JUDGE OF APPEAL
Appearances:
Counsel for Appellant: S P Janse van Rensburg
Instructed by
David H Botha, Du Plessis & Kruger Inc, Johannesburg
Symington & De Kok, Bloemfontein
Counsel for Respondent: Ms C E Britz
Instructed by
The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein