About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2017
>>
[2017] ZAFSHC 73
|
|
S v Mothoalo (62/2017) [2017] ZAFSHC 73 (8 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No. : 62/2017
THE
STATE
versus
TEBOHO
MOTHOALO
CORAM:
DAFFUE, J
et
SNELLENBURG, AJ
JUDGMENT
BY:
SNELLENBURG,
AJ
DELIVERED ON:
8 JUNE 2017
[1]
Teboho Mothoalo, a 25 year old male, who was not legally represented
during the trial, was convicted and sentenced in the Botshabelo
Regional Court (under case nr B1998/2016), on a charge of assault
with the intent to do grievous bodily harm. The accused was sentenced
to 3 years imprisonment in terms of the provisions of
section
276(1)(b)
of the
Criminal Procedure Act, 51 of 1977
. He was also
declared unfit to own a firearm in terms of the provisions of
section
103(1)
of Act 60 of 2000.
[2]
The matter was subsequently sent to this court as an automatic
review.
[3]
It is now the duty of this court to review the matter and to
determine whether not only the conviction and sentence, but the
proceedings as a whole, were in accordance with justice.
[4]
The charge preferred by the state against the accused was that on or
about 17 December 2016 near or at H3 Section, in the district
of
Botshabelo, the accused did unlawfully and intentionally
assault Lebohang Mokhethi by stabbing him with a knife with the
intent of causing him grievous bodily harm.
[5]
The accused pleaded not guilty and gave a plea explanation. His plea
explanation boiled down to this: He was drinking. The complainant
swore at him and then hit him with an open hand. He then lost his
temper, broke the beer bottle he was drinking from and stabbed
the
complainant with the broken bottle and not a knife.
[6]
The state presented only the evidence of Lebohang Mokhethi, the
complainant. The complainant’s testimony, succinctly
summarised, was that he was at a tavern on 17 December 2016. He was
drinking. When the complainant left the building to relieve
himself
outside the premises he noticed the accused standing with a girl. The
accused was swearing at the girl. The complainant
had to pass close
by where the two of them were standing and he asked the accused to
let him pass. The accused then started swearing
at him (the
complainant). The complainant avoided an altercation at that stage.
When the complainant returned to the tavern after
relieving himself
the accused and the girl were no longer standing where he had met
them on his way out. He noticed the accused
sitting in the yard of
the tavern. The complainant entered the tavern. When the complainant
left the tavern later the accused attacked
him with a knife. The
accused stabbed him twice in quick succession in the left frontal
area of his shoulder. The complainant lifted
his left arm with his
hand outstretched in a defensive gesture to protect himself whilst
turning away from the attack to run away.
The accused stabbed him in
the left hand as he was turning and then ran after him and stabbed
him in the left upper quadrant of
his back.
[7]
The accused cross-examined the complainant. He never challenged the
number of stab wounds, the location of the stab wounds,
nor the
complainant’s evidence of the sequence of events during the
attack. The court assisted the accused by asking questions
to clarify
answers and pertinently raised issues with the complainant which
appeared from the plea explanation.
[8]
The accused elected not to testify in the proceedings and closed his
case without presenting any other evidence.
[9]
In his judgment the learned Magistrate, after dealing with the fact
that the state had established a prima facie case went on
to say the
following:
“
Ten spyte van die beskuldigde
se reg om te swyg kan ek nie anders as om ‘n negatiewe
afleiding [te] maak met sy versuim om
te swyg (
sic
getuig) nie, en maak ek inderdaad ‘n negatiewe afleiding uit sy
stilswye in lig van die sterkte van die staat se saak.”
The
Magistrate then convicted the accused as charged.
[10]
The learned Magistrate committed a material
misdirection by making an
adverse or negative inference from the accused’s election not
to testify during the proceedings.
[11]
Section 35(3)(
h
)
of the Bill of Rights contained in the Constitution of the Republic
of South Africa, 108 of 1996 guarantees the right of every
accused
person to remain silent and not to testify during proceedings.
Section 35(3)(
h
)
reads as follows:
“
(3) Every accused person has a
right to a fair trial, which includes the right-
(h)to be presumed innocent, to remain
silent, and not to testify during the proceedings;
”
[12]
The fact that an accused person’s election not to testify may
have adverse consequences is something totally different
from making
an adverse or negative inference from the fact that an accused person
has decided to exercise his constitutional right
to remain silent and
not to testify. The two issues must not be confused.
[13]
It is a well settled and trite principle that an accused person’s
election to exercise the constitutional right to remain
silent and
not testify cannot be held against him and could never underlie a
negative or adverse inference. In
S v Maasdorp
[2008] ZANCHC 21
;
2008 (2) SACR 296
(NC) para
18
(p303g-h) Bosielo AJP (as
he was then) whilst dealing with a trial court’s negative
inference as result of the fact that
an accused person refused to
make a statement to police after having been advised of his right to
remain silent, held:
“
In my view, it would make a
serious mockery of the rights enshrined in s 35(1)(a) and (b)(i) and
(ii), if, after having properly
advised an accused of these rights,
such an accused person would be visited with a negative inference
precisely for exercising
his constitutional right to remain silent.”
The
same principle applies to an accused person who exercises his
constitutionally enshrined right not to testify and I can hardly
put
it better than the Judge did in
Maasdorp
supra.
[1]
[14]
The correct point of departure is the fact that the accused person is
presumed innocent until proven guilty. The State bears
the onus to
rebut the presumption of innocence and to do so needs to prove the
accused person’s guilt beyond reasonable doubt.
This means that
the State bears the burden of proving each of the essential elements
of the offence charged.
[2]
There
is no onus on the accused to disprove any of them. If the state does
not rebut the presumption, that is the end of the matter.
[15]
I stated earlier that the election of an accused person not to
testify may or may not have negative consequences. The reason
for
this is obvious, if the accused person does not testify and the
prosecution fails to rebut the presumption by discharging its
onus
then
cadit
quaestio
.
On the other hand, should the accused person elect not to testify,
which is his right to do, he always runs the risk that absent
any
rebuttal, the prosecution's case may be sufficient to prove the
elements of the offence.
[3]
In
other words he runs the risk that the court may find when weighing
the evidence produced by the prosecution, that the evidence
is
sufficient to prove its onus in absence of his testimony. Thus the
decision not to testify does not attract a negative or an
adverse
inference, but it may not be without consequences for the accused
person.
[16]
What needs to be considered is whether the misdirection resulted in a
failure of justice.
[4]
[17]
In considering the matter afresh I am satisfied that the State
satisfied its onus to rebut the presumption. The State at the
very
least had a prima facie case. I would add that the learned
Magistrate’s evaluation of the evidence of the single witness
cannot be faulted.
[5]
In absence
of evidence to rebut the prima facie case the State satisfied its
burden. The conviction must therefore be confirmed.
[18]
As for the sentence, the exercise of the Magistrate’s
discretion is not vitiated by any material misdirection. The sentence
is not so markedly different that it can properly be described as
shocking, startling or disturbingly inappropriate. It therefore
follows that the sentence should also be confirmed.
[16]
I would make the following order:
The conviction and
sentence are confirmed.
____________________
N.
SNELLENBURG, AJ
I
concur and it is so ordered.
______________
J.
P. DAFFUE, J
[1]
Also see
S
v Mofokeng
1998
(1) SACR 57
(O) at 60g
.
[2]
Osman and
Another v Attorney-General,Transvaal
,
1998 (4) SA 1224
(CC) para 13
.
[3]
Osman and
Another v Attorney-General, Transvaal
,
Supra
Para
22
;
S
v Machaba and Another
2016
(1) SACR 1
(SCA) para 10
.
[4]
S v Naidoo,
1962
(4) SA 348
(A) te 354 D – F.
[5]
In
S
v Sauls
1981
(3) SA 172
(A) at 180E – H
the
Court explained how the evidence of a single witness should be
evaluated:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of the single witness.
. . . The
trial Judge will weigh his evidence, will consider its merits and
demerits and, having done so, will decide whether
it is trustworthy
and whether, despite the fact that there are shortcomings or defects
or contradictions in the testimony, he
is satisfied that the truth
has been told. . . . It has been said more than once that the
exercise of caution must not be allowed
to displace the exercise of
common sense. The question then is not whether there were flaws . .
. . The question is what weight,
if any, must be given to the many
criticisms that were voiced by counsel in argument.'It follows that
the conviction should be
confirmed.”