About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2016
>>
[2016] ZALMPPHC 6
|
|
Director of Public Prosecutions Limpopo v Maraba and Others (AA01/2016) [2016] ZALMPPHC 6 (4 August 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION,
POLOKWANE)
CASE NO:
AA01/2016
4/8/2016
Not reportable
Not of interest to
other judges
Revised.
In
the matter between:
THE
DIRECTOR OF PUBLIC
PROSECUTIONS APPELLANT
LIMPOPO
and
BEN
MARABA FIRST
RESPONDENT
BOITUMELO
TUMI
TJALE SECOND
RESPONDENT
WILLIAM
NINA
MOKWATLO THIRD
RESPONDENT
JUDGMENT
MAKGOBA
JP
[1]
This is an appeal against the judgment of the High
Court (Nair AJ) discharging or acquitting the accused at the close of
the State
Case in terms of Section 174 of the Criminal Procedure Act
51 of 1977 (“the Act”).
[2]
The three Respondents (hereinafter referred to as the Accused) were
prosecuted in the Limpopo High Court on four counts namely:
1. Murder read with the
provisions of section 51(1) of Act 105 of 1997.
2. Kidnapping
3. Contravening the
provisions of section 3(1) read with section 1, 56(1), 57, 58, 59, 60
and 61 of the Criminal Amendment Act 32
of 2007-Rape.
4.
Defeating or obstructing the ends of justice.
At the end of the State
case the Accused applied for their discharge in terms of section 174
of the Act. The Court a quo granted
the discharge in respect of the
first and third accused.
The
application was however refused in respect of the Second accused.
[3]
All the accused had pleaded not guilty to all counts. The first and
third accused did not disclose the basis of their defence
in terms of
section 115 of the Act but exercised their right to remain silent.
The Second accused chose to disclose the basis of
his defence.
[4] The plea explanation
tendered by accused number two can be summarised as follows:
Accused
number two was walking in the street together with the deceased named
R. D. B. (also known as N.) in the early hours of
5 October 2013.
While walking, a certain motor vehicle stopped on the roadside next
to them. Accused number one disembarked from
the said vehicle while
holding a knife and ordered accused number two and the deceased to
get into the vehicle. Out of fear, accused
number two and the
deceased boarded the vehicle and it drove off. Accused number one,
accused number two and the deceased occupied
the backseat. In front
seat, it was only the driver who was unknown to accused number two at
the time.
After
driving for some distance the motor vehicle stopped and accused
number one ordered accused number two and the deceased to
alight. The
unknown driver joined accused number one and they both led accused
number two and the deceased to an isolated spot
where the deceased
was stripped naked by accused number one. Thereafter accused number
one, while holding the knife ordered accused
number two to rape the
deceased. Accused number two lay on top of the deceased who had been
stripped naked by accused number one
and was lying on the ground at
the time. Accused number two then pretended to be raping her.
Accused
number two was removed from the deceased by accused number one and
accused number one and the driver took turns in lying
on the deceased
doing what was unknown to him. Thereafter accused number one ordered
accused two to hold the deceased’s hands
at the back and also
ordered the unknown driver to hold the deceased legs. Accused number
one throttled the deceased and simultaneously
stabbed the deceased on
the cleavage. When the deceased took her last gasp, accused number
two fled the scene, leaving the deceased,
the driver and accused
number one behind.
[5]
It emerged later on during the trial that the driver of the motor
vehicle who was unknown to accused number two at the time
of the
incident was in fact accused number three.
[6]
The State called four witnesses to testify. None of the witnesses’
evidence implicated any of the three accused. However
during the
cross-examination of some of the state witnesses the legal
representative for accused number two put the accused’s
version
as outlined in his plea explanation to the witnesses. This then gave
an indication that if accused number two were to testify
in his
defence his evidence will possibly implicate accused number one and
three.
[7]
It is common cause that at the close of the State case there was no
prima facie
evidence against any of the accused. Furthermore the plea explanation
of accused number two was not recorded as formal admissions
in terms
of section 220 of the Act.
The
Court
a quo
stated amongst others, in its reasons for the
discharge of the two other accused that the plea explanation made by
accused number
two cannot be used against his co-accused because it
was not recorded as formal admissions in terms of section 220 of Act.
[8]
The following two legal questions arise in this appeal:
8.1.
Whether the accused is entitled to a discharge in circumstances where
there is no evidence at all against him, except incriminating
plea
explanation by his co-accused which was not recorded as formal
admissions.
8.2.
Whether the accused is entitled to a discharge in circumstances where
there is no evidence at all against him but there is
a reasonably
possibility of the State case being supplemented during the course of
the defence case.
[9]
S v.Mjoli 1981(3) SA 1233(A)
it was held that even though an
admission by an accused during explanation of plea is not evidence,
it is still probative material.
Hiemstra
CJ in
S v. Mokgatla 1977-9 BSC 79 85E
remarked
as follows in relation to
admissions not recorded in terms of section 220 of the Act.
“
Like
in the case of any extra-judicial statement, the accused may be
cross-examined on it. Serious conflicts between his evidence
under
oath and his explanation of plea can destroy his credibility provided
the conflicts have been properly put to him. The view
that everything
in the explanation of plea which is not an admission in terms of
section 220, must be totally ignored, cannot be
supported. It is part
of the evidential material like any statement made by the accused
which may be proved against him in evidence,
whether inculpatory or
exculpatory or neutral. Its value for the prosecution depends upon
the circumstances. This is in accordance
with the general law of
evidence, and there is nothing in the Act which takes the explanation
of plea out of this general class”
[10]
In
S v. Phuravhathu 1992(2) SACR 544 (V) at 554 A-B
it was
held that a trial Court cannot close its eyes to a plea explanation
given by an accused in terms of section 115 …when
considering
an application for the discharge of the accused under section 174. It
was held further in that case that the contents
of the accused’s
plea explanation in terms of section 115 of Act 51 of 1977 may also
be taken into account in considering
whether there is a real and
reasonable prospects of the State case being strengthened by the
defence evidence.
[11]
In my view the Court
a quo
erred in disregarding the plea
explanation of accused number two in this matter. The plea
explanation, whether recorded as formal
admission or not, is an
evidential material and it should therefore have been taken into
account when considering the application
in terms of section 174 of
the Act. The Court
a quo
committed an error of law by simply
ignoring same.
[12] Mr Sebelebele,
Counsel for the Appellant conceded that there was no evidence at all,
implicating the first and third accused.
He
argued however, that there was evidential material in the form of
accused number two’s plea explanation and his version
put to
State witnesses during cross-examination which ought to have been
taken into account when considering the application for
discharge. I
agree. The question was not whether there was a
prima facie
evidence against accused number one and three or not. The question
was whether there was a reasonable possibility of the State
case
being supplemented during the course of the defence case or not.
[13] Section 174 of the
Act provides that “If at the close of the case for the
prosecution at any trial the Court is of the
opinion that there is
not evidence that the accused committed the offence referred to in
the charge or any offence of which he
may be convicted on the charge,
it may return a verdict of not guilty”.
The
word ‘
may’
was used by the legislature to mean that the Judge or Magistrate has
a discretion either to grant or refuse the application. The
section
gives the Court a discretion, which must be exercised judicially, in
deciding whether to discharge an accused at the conclusion
of the
State case.
[14]
In
S v. Shupping and Others 1983(2) SA 119 (B)
the Court laid
down the following principle:
“
At
the close of the State case, when discharge is considered, the first
question is:
(i)
Is there evidence on which a
reasonable man might convict, if not
(ii)
Is there a reasonable possibility
that the defence evidence might supplement the State case?
If
the answer to either of the question is yes, there should be no
discharge and the accused should be placed on his defence”.
[15] Where more than one
accused are charged with the same offence the Court may refuse to
discharge one of them if it is in the
interests of justice to do so.
See:
S v. Agliotti 2011(2) SACR 437(GSJ) at
[257]
The
case of
S v. Lubaxa 2001(2) SACR 703
(SCA)
is authority for the principle
that it is unfair and in fact unconstitutional to refuse a discharge
of the accused at the close
of the State case with the hope that he
will be implicated during the defence case. However in the same case
it was said (per Nugent
AJA, as he then was) that it was advisable to
draw a distinction between cases where there was a single accused who
might be obliged
to enter the witness box and then incriminate
himself, and cases where there were multiple accused who might
incriminate their
fellow accused. In the latter case, it was held
that the trial would not necessarily be unfair if the application for
discharge
were refused on the basis that the State’s evidence
may be supplemented by the evidence of a co-accused.
[16] The dictum is
S
v. Shupping and Others
, supra, was followed and with approval in
S v. Hudson and Others 1998(2) SACR 359
(W)
.
The following principles were laid down:
That
section 174 of the Act afforded a judicial officer a discretion to
discharge an accused or to refuse to do so. The discretion
had to be
exercised judicially and not capriciously, and the first
consideration was whether there was evidence on which a reasonable
man might convict. That even if there was no evidence at the close of
the State case on which a reasonable man might convict the
accused, a
factor which it was permissible to take into account, in granting or
refusing an application for discharge, was whether
there was a
reasonable possibility that the defence evidence might supplement the
State case.
Further
that an important consideration in determining whether there was a
reasonable possibility that the defence evidence might
supplement the
State case was the content of any admissible confession of a
co-accused of the applicant for discharge. Although
such confession
was not admissible against the applicant for discharge, it might,
however, become admissible if the confessing
co-accused should elect
to testify and repeat its content under Oath. Thus, where such
confession contained an indication that
the co-accused would possibly
implicate the applicant for discharge the Court could form an
impression of how the trial might unfold.
In such circumstances the
Court would fail in its duty to weigh also the interests of the State
and of the community if it simply
granted a discharge.
See also:
S v.
Mondlane 1987(4) SA 70(T) at 71G-72B
S
v. Makofane 1998(1) SACR 603(T)
[17]
In
S v. Tusani and Others 2002(2) SACR 468(TK)
the trial Court
refused a discharge in circumstances where there was no evidence at
all, incriminating two accused persons. The
only evidence was a
confession made by an accused in which he implicated two of his
co-accused. Although a confession of one accused
is not admissible
against the other accused persons, the Court found that there was a
reasonable possibility that the defence case
may supplement the State
case. It was concluded that there was a reasonable possibility that
the maker of a confession might supplement
the State case should he
elect to testify in his defence case.
[18]
In
S v. Nkosi and Another 2011(2) SACR 482 (SCA)
there was no
evidence upon which the Court might reasonably have convicted the
Appellant at the close of the State case. Neither
was there any
reasonable basis for an expectation that his co-accused might
incriminate him. The trial Court refused to acquit
the accused. In
criticizing the trial Court for such refusal the Supreme Court of
Appeal, per Maya JA said the following:
“
The
co-accused had given no plea explanation and no indication whatsoever
during his cross-examination of the State witnesses that
he might do
so. It had not emerged that the co-accused had been at the scene of
the crime until the late stage of the State case.
Even then, there
had been no hint that he might augment the State case given the very
terse and vague cross-examination of the
witnesses who placed him on
the scene”
[19]
The
Nkosi
case, supra, is in direct contrast to and is
distinguishable from the present case in that –
(a) In
the present case accused number two made a plea explanation in which
he incriminated his co-accused.
(b)
Accused number two’s cross-examination of State witnesses
placed his co-accused on the scene,
(c)
Accused number two gave more than a mere hint, in fact explained
fully, how accused number one and three took part in the commission
of the offences.
[20]
In granting a discharge in respect of accused number one and three
the Court
a quo
made a remark that there was no guarantee that
accused number two might even testify so as to incriminate his
co-accused. I agree
with Counsel for the State’s submission
that the Court
a quo
misdirected itself in this regard.
Whether accused number two decides to testify or not is completely
irrelevant for purposes of
considering an application for a
discharge. His evidence becomes relevant only at the end of the case
when his credibility as a
witness is taken into account and whether
his evidence factually and indeed supplemented the State case or not.
[21] In
casu
the
Court
a quo
should have found that there was indeed a
reasonable possibility that the State case might be supplemented
during the course of
the defence case. A decision to discharge the
first and third accused has compromised the proper administration of
justice because
there was clearly a reasonable possibility that the
defence evidence of accused number two would supplement the State
case.
Even
though there was no
prima facie
evidence implicating accused number one and three at the close of the
State case, it was very apparent that the State’s case
was
going to be supplemented during the course of the defence case by the
evidence of accused number two. In the circumstances
the application
for discharge should have been refused.
[22]
In the result the appeal is upheld and the following order is
accordingly granted:
1. The
discharge / acquittal of accused number one and accused number three
in terms of section 174 of Act 51 of 1977 is set aside.
2. The trial in respect
of all the accused, i.e. accused number one, two and three shall
start
de novo
before a different Judge.
_________________________
E.
M MAKGOBA JP
JUDGE OF THE HIGH
COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
I
agree
_________________________
G.C
MULLER J
JUDGE OF THE HIGH
COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
I
agree
_________________________
M.G
PHATUDI J
JUDGE OF THE HIGH
COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION, POLOKWANE
APPEARANCES
For
the Appellant
: M.
Sebelebele
(State)
:
Director of Public Prosecutions
For
1
st
& 3rd Respondent
: K.E
Kgatle
Legal
Aid South Africa
For
2
nd
Respondent
:
M .M.
Mahapa
Mahapa
Attorneys
Heard
on
: 29 July
2016
Judgment
delivered on
: 4
August
2016