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[2017] ZAKZPHC 17
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Duma v S (AR141/14) [2017] ZAKZPHC 17 (9 May 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO. AR141/14
In
the matter between:
MSIZI
NDABEZINHLE
DUMA APPELLANT
and
THE
STATE
RESPONDENT
JUDGMENT
STEYN
J
[1]
The appellant was convicted on a count of theft of a motor vehicle on
21 August 2012 at the Regional Court, Durban and sentenced
to 6 (six)
years’ imprisonment. Leave to appeal the conviction and
sentence was granted by the court
a quo
on 27 November 2012.
This appeal has a long and protracted history since it was previously
struck from the roll and the appellant’s
bail was cancelled.
On 28 October 2016 Masipa J however issued an order for the appeal to
be re-instated and granted the
appellant bail in the amount of
R8 000. It is not necessary for purposes of this judgment
to traverse the details of
the application that served before Masipa
J.
[2]
The appellant appeals against his conviction on the grounds that the
learned magistrate refused him the opportunity to call
a crucial
defence witness and by doing so, the court deprived him of his right
to a fair trial. Furthermore the State failed
in its
onus
to establish his guilt beyond reasonable doubt since the defence
raised by him was never negated by the evidence adduced by the
State. In relation to the sentence, the appellant contended
that the magistrate was misdirected when she imposed direct
imprisonment without any consideration of correctional supervision in
terms of s 276(1)(i) of the Criminal Procedure Act 51 of 1977
(‘the
Act’) as a suitable sentence.
[3]
Before I deal with the appellant’s grounds of appeal, it is
necessary to consider the defence raised at the plea stage
of the
proceedings. The appellant pleaded not guilty to the said
charge and elected to tender a detailed written plea explanation
in
terms of s 115 of the Act that reads as follows:
‘
I,
the undersigned, Msizi Ndabezinhle Duma (hereinafter referred to as
the ‘accused’) do hereby state that:
1.
I understand the charge
of theft of motor vehicle that has been preferred against me by the
State. I confirm that my attorney has
read to me and explained the
contents of the charge sheet together with the contents of the
annexure thereto.
2.
I confirm that my
attorney has explained to me my rights including my right to remain
silent and to be presumed innocent until my
guilt has been proved
beyond a reasonable doubt by the State. I however elect to
waive my right to remain silent in this
matter.
3.
I am pleading not guilty
to the charge. I understand that by making these admissions I
am absolving the State from having
to lead any oral evidence to prove
the undisputed facts.
4.
The facts that I am not
placing in dispute are the following:
4.1
That on the 7
th
December 2011 in the afternoon I was
arrested by two Asian male police officers who were driving a marked
Ford Focus police vehicle.
4.2
At the time of my arrest I had been driving a white VW microbus with
registration letters and numbers
ND[…]. At the time of
arrest I was [driving] this vehicle along South Coast Road,
Clairwood, with the intention of
going to “B” section
Umlazi.
4.3
I had been in Durban at the city centre that morning
. I met
up with Sandile Mkhize who is well-known to me as he resides at “C”
section Umlazi. Prior to my
arrest I was employed at a car wash
in “B” section Umlazi and I was washing cars there.
Sandile Mkhize was a
usual customer at the car wash and I used to
wash different cars that he would bring there to be washed.
4.4
When I met him at Berea centre he was seated inside the VW microbus
in question with another African
female. I heard a hoot of the
car and on approaching I realised it was him. He told me that
the female inside the vehicle
was his girlfriend.
4.5
He requested me to take his microbus vehicle and drive it to
Umlazi “B” section and that I must leave it with the
owner
of the car wash. He told me to leave the keys with owner
of car wash and he was going to collect the car there late that
evening.
4.6
I asked him why was he not driving the car himself and he told me
that his girlfriend arrived in her
own car and that they wanted to
hang around and was therefore not going to be able to drive his car
and that of his girlfriend.
I then agreed to help him out and I
took the vehicle and drove it.
4.7
At the intersection in Bramey Road, Clairwood, the robots turned red
against me. I stopped the car I
was driving. I noticed on the rear
mirror that there was a marked police vehicle behind me. I got scared
because I was driving
the car without holding a driver’s
licence. I got out of the car and started to run away.
4.8
Police officers chased after me and arrested me. I stopped
because he fired a warning shot.
He took me back where I had
left the motor vehicle. They asked me in English where I got
vehicle from. I told them that I
go the vehicle from Sandile Mkhize.
They asked me where he stayed and I told them he stayed at “C”
section Umlazi.
They told me they are arresting me for theft of
motor vehicle.
4.9
They took me to their marked police vehicle and transported me to
Montclair police station where I was
detained. The following day I
met the investigation officer Mr Brian Njabulo Mkhize. He asked me
where I got vehicle from and I
told him I got it from Sandile Mkhize.
He asked me where Sandile stays and I told him he stays at “C”
section Umlazi.
He then charged me.
4.10
He then transferred [me] to Berea police station where I was
detained. Later that evening at about 8:00 he
came to the cells
and booked me off. He then drove with me to “C”
section Umlazi township to look for Sandile.
We reached Sandile
Mkhize’s residence and I pointed it out to him. There
were three police officers in all and I was
the fourth person in
police car. We all alighted from the car and went inside the
house.
4.11
We found four (4) occupants in house including Sandile Mkhize’s
sister. Police asked his sister about
his whereabouts. She
confirmed Sandile stayed there but was not at home at that time.
We then left and went back to Berea
police station. I was then
immediately transferred to CR Swart police station. I was then
detained until I appeared in Durban court.
4.12
At all material times when I took possession of vehicle from Sandile
Mkhize I did not know or suspect that the
vehicle was stolen as
alleged by the State.’
[1]
(My
emphasis.)
[4]
At this point I consider it convenient to summarise the evidence
adduced before the court
a quo
:
(i) The complainant, the owner of a VW
microbus parked her vehicle in St Thomas Road, Durban. The
complainant and her mom
were visiting an old family friend.
Shortly after arriving at the flat of the person they were visiting,
she heard her vehicle’s
engine running and looked through the
window. The complainant saw someone inside her vehicle driving
it away. She was
unable to give a description of the identity
of the person in the vehicle but immediately informed the tracking
company of the
theft. The next day she went to the police
station to identify her vehicle. When she was asked about the
condition
of the car, she stated that the only thing missing from the
car was the face of the radio. No other damage was detected by
the complainant.
(ii) Warrant Officer Ramsamy testified
that he drove a marked police vehicle fitted with a special system,
the Tracker Retrieve,
which enables him to pick up signals of stolen
vehicles that are fitted with a tracker device. He was driving
behind a VW
microbus and when they stopped at an intersection
controlled by traffic lights, the appellant jumped out of the VW
microbus and
ran away. The appellant was apprehended and
brought back to the vehicle that was still idling. According to
this witness
there was no key in the ignition despite the fact that
the engine was still running. He observed damage to the door
lock
and the ignition of the vehicle. The vehicle was
identified by the owner as her property.
(iii) The investigating officer,
Constable Mkhize, initially testified that he had never booked the
appellant out from the cells
to establish anything. However
when he was probed further by the State in his evidence-in-chief, he
relayed that he took
the appellant out of the cells only once to go
and verify his address. In answer to a question from the court,
this witness
stated that the appellant mentioned the name of Sandile
Mkhize and that he, the appellant, was in the company of Sandile
Mkhize.
Seemingly Constable Mkhize never tried to locate
Sandile Mkhize and only attempted to do so after he was directed by
the court.
(The record does not reflect such an instruction so
it is assumed that this witness was instructed by the State
prosecutor to locate
Sandile Mkhize.) The State tendered no
further evidence in support of its case.
(iv) The appellant testified in his
own defence and conceded that he was apprehended by the police after
he ran away from the VW
microbus. He explained that he was
frightened when he noticed the police vehicle behind him and was
worried that he would
be arrested since he did not have a drivers
licence. According to the appellant, he received the vehicle
from Sandile who
is known to him. He was asked to drive the
vehicle to Umlazi where Sandile would have collected it later in the
day.
Sandile’s girlfriend’s car was parked next to
the VW microbus.
The
appellant further testified that Constable Mkhize took him to
Sandile’s home at “C” section Umlazi.
When
they arrived there they found Sandile’s sister as well as
Sandile’s brothers at home. He maintained that
the
officer had lied when he said that he did not take him to Sandile’s
home. The appellant then requested the opportunity
to call
Sandile’s sister as a defence witness and the court ruled as
follows:
‘
Court
: The Court is of the view that Sandile’s sister is not going
to take the defence case any further. The application
is
refused.’
[2]
Mr
Ngcobo, acting on behalf of the accused during the trial, then closed
the case for the defence.
Plea
explanation
[5]
In
S v Mothlaping en ‘n
ander
[3]
Van Rhyn JP on behalf of the full court, summarised the evidential
value of a plea explanation in terms of s 115 of the Act as
follows:
‘
(a)
What is stated in the explanation is not evidence, it is a disclosure
of the accused’s defence;
(b)
The accused exercises an election to make one and should not be
coerced into making one;
(c)
If the accused tenders a plea explanation then it forms part of the
evidential material and the accused may be cross-examined
on the
content of the explanation;
(d)
The plea explanation cannot be used as evidential material in favour
of the accused without him testifying under oath;
(e)
Throughout the trial the explanation would operate in favour of the
accused in that the
State
is obliged to disprove the defence raised in it
.’
[4]
(My
emphasis.)
[6]
From the appellant’s plea explanation it is evident that he was
employed at a car wash in “B” section Umlazi.
The
record shows that Sandile Mkhize was a regular customer. He was
asked to hand the keys of the car to the owner of the
car wash who
should have been in a position to disprove his defence if he was
called by the State. The State in my view tendered
no evidence
to disprove the defence raised by the appellant despite the fact that
it bore the
onus
of proving that the appellant stole the vehicle. The State
failed to rebut the appellant’s version.
[5]
[7]
The court’s refusal of allowing the appellant the right to call
Sandile’s sister raises the question of whether
the appellant
received a fair trial. In terms of the common law our courts
have always recognised the right of accused persons
to call witnesses
on their behalf. In 1924, in
District
Commandant South African Police & another v Murray,
[6]
the court relied on the dictum of Benjamin J. The Judge
remarked:
‘
[An]
accused person shall have full opportunity of giving evidence in his
own defence and of calling such other witnesses as he
may desire is a
principle of elementary justice….’
Innes
CJ in the
District
Commandant
case regarded a
denial of such right as a gross irregularity.
[7]
[8]
On a statutory level an accused person’s right to call
witnesses and adduce evidence before a court is recognised in terms
of s 151(2)(a) of the Act, which reads:
‘
The
accused may then examine any other witness for the defence and adduce
such other evidence on behalf of the defence as may be
admissible.’
[9]
In
S v Gwala
[8]
Didcott J regarded the right as an absolute right and held that a
denial of this right amounts to a gross irregularity that vitiated
the whole trial. The court went as far as to say that the trial
magistrate had no discretion to exercise. At 939B it
was held:
‘
The
magistrate is mistaken about the mistake he made. As I have
pointed out already, he had
no
discretion to exercise
in the affair, correctly or incorrectly. And the ‘
merits
of the request’
,
as he calls them, were none of his business and no proper subject for
enquiry. Indeed, there was no occasion for any request.
The accused had a right to call the witness, I repeat, which was
neither dependent on permission received from him nor qualified
in
any other way.’
[9]
(My
emphasis.)
Constitutional
Right
[10]
The Constitution
[10]
in terms of s 35(3)(i) provides that:
‘
(3)
Every accused person has a right to a fair trial, which includes the
right –
(i)
To adduce and challenge evidence.’
[11]
[11]
In my view, the learned magistrate in her judgment, failed to give
reasons for denying the appellant the opportunity to call
Sandile’s
sister as a witness. During the court’s judgment on the
merits, she merely sought justification for
her refusal to allow the
appellant this right. In fact, the learned magistrate
overlooked the principle that there is no
onus
on the accused to prove anything.
[12]
His version was clear from the time that he pleaded that he did not
know that the vehicle was stolen and that he was asked
to take the
said vehicle to the car wash in Umlazi and hand it over to the owner
of the car wash. The court dealt with the
accused’s
version as follows:
‘
The
accused’s version is that he met Sandile and Sandile gave him
this motor vehicle and he was supposed to take it to a car
wash of a
person in Umlazi and then leave the car there, a car wash that he had
previously been employed at, but on that particular
day he was not
employed. The accused could not explain why he was taking the
car to a car wash of a person that he hardly
knew. Also he
could not explain why he was taking a customer’s car to a car
wash when he normally did not do this.
He did not know Sandile
very well, according to his version under cross-examination, he only
met him at the car wash. He
did not know what Sandile did for a
living. It was also put to him that he had no obligation to
take the car from Sandile
and go anywhere else. He could not
explain that.
He
could not explain about the keys of the car. It was asked of
him, “Did Sandile give you the keys”, and he had
no
reply, in fact he replied with, “The motor vehicle was
idling
”.
When the question was repeated he stated under cross-examination that
he did not notice if there was a key in the
ignition.’
[13]
(My
emphasis.)
[12]
The common law principle as highlighted by Didcott J in
Gwala
is now fortified in the Bill of Rights as a fair trial right and any
infringement of the right has to be justified in terms of
the
limitation clause.
[14]
In casu
the appellant was denied the opportunity to place evidence before the
court that could have countenanced the evidence of Constable
Mkhize
who was regarded by the court
a
quo
as a good witness.
It is not my duty to speculate about the nature of the evidence that
Sandile’s sister would have
presented to the court and whether
her evidence would have supported the appellant’s version.
It remained the duty
of the court
a
quo
however to have given
the appellant the opportunity to call witnesses in his defence.
The court also regarded Warrant Officer
Ramsamy’s evidence as
good, yet there is a startling contradiction in his evidence and that
of the complainant, namely the
damage to the vehicle.
[13]
A critical analysis of the evidence of Constable Mkhize would have
resulted in a different finding. On a constitutional
level the
court in
S v Jaipal
[15]
stated the following on the issue of irregularities:
‘
Therefore
a failure of justice must indeed have resulted from the irregularity
for the conviction and sentence to be set aside.
In construing
when an irregularity had led to a failure of justice, regard must be
had to the constitutional right of an accused
person to a fair
trial. If an irregularity has resulted in an unfair trial, that
will constitute a failure of justice as
contemplated by the section
and any conviction will have to be set aside. Whether a new
trial may be commenced against the
accused will also require a
constitutional assessment of whether that would be a breach of the
right to a fair trial or not.
The meaning of the concept of a
failure of justice in s 322(1) must therefore now be understood to
raise the question of whether
the irregularity has led to an unfair
trial.’
[16]
[14]
In my view the irregularity committed by the presiding officer to
deprive the appellant of the opportunity to call a witness
in his
defence is so fundamental that it vitiates the proceedings to the
extent that the appellant did not receive a fair trial.
In the
light of the irregularity committed by the magistrate, it is not
necessary to deal with the merits in detail.
[15]
As much as the right to call witnesses to testify is not an absolute
right, it remains to be a fundamental right in an accusatorial
criminal justice system, especially since the guilt of an accused
person is usually determined on the facts. For a trial
to be
fair a presiding officer should not reach a conclusion adverse to the
defence until all of the evidence has been heard.
Order
[16]
The appeal succeeds, the conviction and sentence imposed on 26
September 2012 are set aside. If the Director of Public
Prosecutions KwaZulu-Natal elects to prosecute the appellant again,
the trial then needs to be presided over by a different magistrate.
…………………………
..
STEYN
J
…………………………
..
D
PILLAY J : I agree
Appeal
heard on :
18 April 2017
Counsel
for the appellant :
Advocate D Barnard
Instructed
by :
B Ngcobo Attorney
Counsel
for the respondent :
Advocate A Watt
Instructed
by :
The Director of Public Prosecutions
Judgment
handed down on : 9 May 2017
[1]
At 82
et seq
of the record.
[2]
See record at 32 lines 14 and 15.
[3]
1988 (3) SA 757
(NC) at 761I-762E. Cf.
S
v Cloete
1994 (1) SACR 420
(A) at 424.
[4]
This is a translation of the court’s words at 761I-762E.
The original text is in Afrikaans.
[5]
See
S v Mia & another
[2008] ZASCA 117
;
2009 (1) SACR 330
(SCA) para 12 that reads:
‘
The proper approach in a
criminal case, is that evidence must be considered in its totality.
It is only in doing so that
a court can determine if the guilt of an
accused person has been proved beyond reasonable doubt. Should
the trial court,
in the course of assessing the evidence before it,
find that a particular witness is unreliable and reject his version
for that
reason, that evidence plays no further part in the
determination of the guilt or innocence of the accused in the
absence of satisfactory
corroboration. Even more so does this
apply to evidence tendered by a co-accused incriminating another,
especially where
the State has not adduced any evidence proving the
guilt of that other accused.’ (Footnote omitted.)
See
also
S v Mafiri
2003 (2) SACR 121
(SCA) at 122g.
[6]
1924 AD 13.
[7]
See
supra
at 18. Also see
S v
Tembani
1970 (4) SA 395
(E).
[8]
1989 (4) SA 937
(N) and
S v
Selemana
1975 (4) SA 908
(T) at 909A.
[9]
At 939A-B.
[10]
See Constitution of the Republic of South Africa, 1996.
[11]
The comparable provision in the interim Constitution was s 25(3)(d)
that reads:
‘
to adduce and challenge
evidence, and not be a compellable witness against himself or
herself.’
[12]
See
Maseti v S
[2014]
1 All SA 420
(SCA) para 25:
‘
The approach, that an accused
person is necessarily guilty because the complainant has no apparent
motive to implicate them falsely
and they are unable to suggest one,
is fraught with danger. This was spelled out by Mahomed J in
S
v Ipeleng
in the following terms:
“
It is dangerous to convict an
accused person on the basis that he cannot advance any reasons why
the State witnesses would falsely
implicate him. The accused
has no onus to provide any such explanation. The true reason
why a State witness seeks
to give the testimony he does is often
unknown to the accused and sometimes unknowable. Many factors
influence prosecution
witnesses in insidious ways. They often
seek to curry favour with their supervisors, they sometimes need to
placate and
impress police officers, and on other occasions they
nurse secret ambitions and grudges unknown to the accused. It
is for
these reasons that the Courts have repeatedly warned against
the danger of the approach which asks ‘Why should the State
witnesses have falsely implicated the accused?’.”’
[13]
See record at 40 lines 14 to 25 and 41 lines 1 to 4.
[14]
Since the constitutionalisation of the criminal procedure, the
following cases were decided on this point;
S
v Nkambule
1995 (2) SACR
444
(T);
S v Younas
1996 (2) SACR 272
(C) and
S
v Lukhandile
1999 (1) SACR
568 (C).
[15]
2005 (4) SA 581 (CC).
[16]
Ibid
at 596F-597B. Also see
S
v Shikunga & another
1997 (2) SACR 470
(NmS) at 479a-485b where Mahomed CJ analysed the
assessment of irregularities as from common law to constitutional
breaches.