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[2016] ZAFSHC 170
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Mokhosi v S (A40/2016) [2016] ZAFSHC 170 (6 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Case
number: A40/2016
In
the matter between:
DITABA
JEREMIAH MOKHOSI
Appellant
and
THE
STATE
Respondent
CORAM:
RAMPAI,
J
et
MHLAMBI, AJ
HEARD
ON:
22
AUGUST 2016
JUDGMENT
BY:
RAMPAI,
J
DELIVERED
ON:
6
OCTOBER 2016
[1] This was an appeal
against the custodial term of 8 years imposed on the appellant.
He was aggrieved. He came to
us on appeal with the leave of
this court granted on petition. The appeal was opposed.
[2] An incident took
place at Sasolburg on 26 July 2014. The police investigation
led to the arrest of two men, namely:
Mr
Ditaba Jeremiah Mokhosi, who was arrested on 29 July 2014, three days
after the incident and Mr Tlole Ben Lehoko, who was arrested
on 30
July 2014, four days after the incident.
[3]
The two suspects were subsequently charged. The first charge
was one of kidnapping. It was alleged that they unlawfully
and
intentionally deprived Mr Thabiso Piet Mpondo of his freedom of
movement at 5110 Chris Hani Sasolburg on 26 July 2016 by placing
him
in the boot of a motor vehicle and that they took him from there to
the Vaal River. The second charge was that they unlawfully
and
intentionally attempted to kill the said person by throwing him into
the said river.
[4]
The accused suspects were tried in the Sasolburg Regional Court.
Ms Ngewu presided over the proceedings.
Mr
Nhlahesi appeared for the state and Mr Charlie for the defence.
The appellant was accused 1. His co-accused, Mr Leho
ko,
was mot before us in these appeal proceedings. Even though an
impression was created that he was the second appellant,
he did not
file a petition for leave to appeal. Therefore, I shall refrain
from deciding his fate.
[5]
On 31 July 2014 the appellant was convicted on his plea in terms of
section 112 Criminal Procedure Act 51/1977 in respect of
both
charges. The regional magistrate took the two charges as one
for the purpose of sentence. The appellant was then
sentenced
to 8 years imprisonment.
[6]
The appellant was aggrieved by the sentence imposed on him. On
25 August 2014 he applied for leave to appeal. The
regional
magistrate refused him leave to appeal on 29 August 2014. He
subsequently approached this court by way of a petition.
He
succeeded. Accordingly, he came to us with the leave of this
court granted by Mocumie J
et
Mia AJ on 4 June 2015.
[7]
The principal grounds of the appellant’s appeal were:
7.1
that the regional magistrate erred by sentencing the appellant on the
basis of facts that were contrary to the facts as
set out by the
appellant in his written statement in terms of section 112(2) Act No.
51/1977;
7.2
that the regional magistrate erred by imposing on the appellant a
sentence which was disproportionate to the crimes he
committed and
thus disturbingly inappropriate.
[8]
As regards the first ground, Mr Monareng argued that the regional
magistrate incorrectly sentenced the appellant on the strength
of the
complainant’s version instead of the appellant’s version,
which version the state had accepted. Mr Steyn
disagreed.
In view of this, I deem it necessary to give a summary of each
version in order to determine whether the regional
magistrate
committed the alleged misdirection.
[9]
The appellant’s version was that the complainant, Mr Thabo Piet
Mpondo, his friend, owed him money; that he no longer
wanted to
repay the loan; that he and his co-accused drove to Sasolburg
to enquire from him why the complainant was avoiding
him instead of
setting the debt; that they found the complainant; they
put him in their motor vehicle against his will;
that they took
him to the Vaal River for questioning; that there he became
aggressive and that as a result of his aggression,
they pushed him
into the river where they left him behind. He admitted that his
actions of 26 July 2014 were wrongful; unlawful
and intentional.
Consequently he pleaded guilty to kidnapping and attempted murder.
[10]
On 31 July 2014 the regional magistrate convicted the appellant on
his plea. The plea was set out in a formally written
“statement
in terms of section 112 Criminal Procedure Act 51/1977.”
The statement was handed up and marked “exi
a”. I
shall revert to the verdict.
[11]
After the verdict, Mr Charlie, counsel for the defence, addressed the
court in mitigation of sentence. When he was done,
Mr Nhlahesi,
the public prosecutor, likewise addressed the court in aggravation of
sentence. When he was done, the regional
magistrate remanded
the case to 5 August 2014 for the evidence of the complainant and the
imposition of the sentence.
[12]
On 5 August 2014 the trial resumed. Mr Mpondo, the court
witness, took a stand. He testified that he was a police
informer. He and the appellant met through a common friend but
they were not friends. He, the appellant and his erstwhile
co-accused conspired to rob whites at Denneysville. In the
furtherance of the conspiracy a vehicle and firearms were secured.
On the day in question the three conspirators set out from
Vereeniging to Denneysville to execute the armed mission.
However,
the mission flopped because they were arrested on the way.
Two firearms were found in the vehicle and seized by the police.
[13]
The three conspirators were charged for possession of unlicensed
firearms. All were released on R500.00 bail each.
Somehow
the complainant’s co-conspirators got wind of his secret
undercover police operations. The appellant sent him
an sms and
told him that they had received information that he betrayed them to
the police. Three more sms from the appellant
followed.
The appellant threatened him. He warned him that they would
teach him a lesson. He showed the sms to
his secret police
handler and a police captain.
[14]
He feared for his life. Because he got no joy from the police,
he fled from Sasolburg to Heilbron. From Heilbron
to
Deneysville and from Deneysville back to Sasolburg. The
appellant and his co-perpetrators were constantly hot on his heels
which was why he was always on the run. They did not give up.
[15]
Eventually his luck ran out. On 26 July 2014 he was in hiding
at his uncle’s place of residence commonly known
as 5110 Chris
Hani at Zamdela at Sasolburg. He was sleeping in the shack on
the premises that night. His cousin, who
was sleeping in the
main house, shouted to alert him that “Dithabaneng”
wanted to see him. He woke up and opened
the door.
Instead of Dithabaneng he came face to face with an unknown woman.
Before he could ascertain who she was,
the appellant unexpectedly
emerged behind the woman with a firearm pointed at him and punched
him. He warned him to
keep quiet. The appellant, aided
and abetted by accused 2, took him out of the house to their car, put
him into the boot
and drove off to Deneysville.
[16]
They stopped on the outskirts of Themba Kubheka, a local township.
There another perpetrator, the driver of a white Corsa
sedan
arrived. The three perpetrators assaulted him. They
decided his fate there and then. He had to be killed
not by
shooting but rather by drowning. They stripped him completely
naked, tied together his legs and then his arms behind
his back.
They fastened his limbs with cable strippings or ties. The
female perpetrator remained behind with the unidentified
latecomer
when the two kidnappers drove away with him in the boot once again.
[17] They stopped the
car, opened the boot and carried him out of the boot. They put
him down on the pedestrian sidewalk on
the bridge. The
appellant said to him:
“
Bye-bye
Sparks”.
They
then pushed him, naked as he was from the top of the bridge down into
the Vaal River. By then he had already partially
untied the
cable ties around his arms but they were obviously unaware. The
scene of the incident was on Ascort Road on the
bridge between
Deneysville and Vereeniging. He managed to swim out. He
was spotted by a passing motorist who rushed
to Sharpville Police
Station where the incident was reported.
[18]
It is obvious that the complainant’s version was completely
different from the appellant’s version in many factually
material respects. Now the question is whether the sentence
imposed upon the appellant was substantially influenced by the
facts
as alleged by the complainant as the appellant contended it was? To
that question I turn now.
[19]
In the first place I proceed to consider the comments of the trial
magistrate during the sentencing phase of the proceedings.
“
The
reason why I called the Court witnesses (sic) was to establish how
big is the amount that would warrant you, I mean killing
a person in
the way that you sought to do and from the evidence that was led the
only money that was spoke (sic) of was R2500.00
for sheep and that
amount is quite minimal.”
It
is somewhat unclear to me as to why the trial magistrate did not call
upon the appellant through his legal representative, Mr
Charlie, to
specify, in his written statement the exact amount of money that had
induced him to kill the complainant. It
must be borne in mind
that the appellant and not the complainant had made the allegation
concerning the motive to kill.
[20]
In his direct evidence neither the trial magistrate nor the
prosecutor asked the complainant any question about the amount
of
money the appellant alleged he owed him. The omission to ask
him any question concerning the alleged debt watered down
the reason
given for calling him. It seemed to me that he was called
because the court believed there was more to the incident
than the
appellant revealed in his statement, “exi a”.
Details of and question about the alleged debt were first
put to the
complainant by the appellant’s counsel. In his indirect
evidence he denied the appellant’s allegation
that he was
indebted to him in the sum of R2500.00 for sheep purchased but never
delivered. In brief he dismissed the substantial
portion of the
appellant’s account of the incident as untrue.
[21]
The trial magistrate went further to say:
“
Yes,
he has testified that you
were
planning a robbery
in Deneysville of some whites in (sic) the day of your arrest for
possession of firearms.”
There
were no such factual averments made by the appellant in his
statement.
[22]
The trial magistrate further remarked as follows:
·
“
I
mean for you now to go about committing crime is out of greed and not
out of need. I mean you
hunted
this complainant
,
you traced him until you tracked him down, he was in hiding.”
·
“
You
managed
to
trick him
,
find him and accomplish your mandate of throwing him into the Vaal
River.”
·
“
You
mean you have ensured or you tried
to
ensure that he does not escaped by tying both his hands and feet
.”
·
“
I
mean to expose somebody,
to
strip him and leave him naked
,
throw him into the river, tied, it is a serious offence.”
None
of those factual averments appeared anywhere in the appellants’
statement. All of them, without any exception were extracted
from the
complainants’ elaborate version.
[23]
During the course of delivering judgment in connection with the
appellant’s application for leave to appeal, the trial
magistrate remarked that the appellant was so determined to kill the
complainant that he hunted him in three different towns before
he
eventually tracked him down. The trial magistrate commented
that the appellant used a certain woman, a stranger who lured
the
complainant out of his secret haven under a false pretext that she
was someone he knew. All those facts obviously stemmed
from the
complainant’s testimony and not the appellant’s
statement.
[24]
Given the aforesaid analysis of the trial proceedings and the
judicial comments in particular, there can be doubt that the
court
a
quo
was
largely influenced by the testimony of the complainant. The
trial magistrate disbelieved the appellants account of the
incident
but believed the complainant’s. The trial magistrate
remarked that the appellant showed no respect for the
life of the
complainant and that, whether or not he was an informer, there was no
justification to kill him. Correct though
that view was, it
could not redeem the trial magistrate from the shackles of her
internalized belief that the version of the appellant
was untrue.
Accordingly there was substance in the argument that the court
a
quo
repudiated the factual matrix as set out in the appellant’s
written plea of guilty in terms of section 112 and punished him
on
the strength of the extrinsic factual considerations.
[25]
In those circumstances, I would not ordinarily hesitate, on that
ground alone, to come to the conclusion that the court
a
quo
materially erred.
S
v Van der Merwe & Others
2011 (2) SACR 509
(FB). But there is something more in the
instant appeal. It is significant in this instant case to
revert to what transpired
at the trial shortly before the verdict was
pronounced. Of course, that concerned the substantive rather
than the punitive
dimension of the proceedings. The appellant’s
legal representative first read the appellant’s statement, “exi
a”, into the record and handed it up. Immediately after
doing so he proceeded to read the second statement, “exi
b”,
made by accused 2. He then took his seat.
[26]
What subsequently followed and mechanically captured reads:
“
COURT:
Will the accused confirm that the statement was compiled in their
presence and their cooperation
[?], and that the signature at the end
of the statement is their own signature.
INTERPRETER:
Both confirm, Your
Worship.
COURT:
You are fully aware
of the contents of the statement?
INTERPRETER:
Correct, Your
Worship.
COURT:
This statement, is
this document the 29
th
that this document was signed?
ADV
CHARLIE:
Indeed,
Your Worship.
COURT:
The statement will
be admitted as Exhibit A and B, for accused 1 and 2 respectively.
JUDGMENT
COURT:
The accused
will (sic) be found guilty on the basis if (sic) their pleas to both
counts
PROSECUTOR:
Your Worship,
the State is not in possession of the SAP69, may the matter be
finalised.”
[27]
It was quite clear
ex
facie
the above extract that the public prosecutor did not participate
after the appellants’ plea but before the court pronounced
the
verdict. He was not invited to say whether the plea accorded
with the facts at his disposal or not. That was the
first
omission. It is not necessary now to guess as to what his
response to the obligatory invitation would have been.
What has
to be necessarily pointed out is that the facts as set out by the
appellant were poles apart from the facts as set out
by the
complainant in his evidence. The latter set of facts were
probably embodied in his witness statement. The prosecutor,
and
indeed the defense counsel, had those facts at their disposal.
[28]
After the verdict, the prosecutor stood up, informed the court that
he was not in possession of the appellant’s criminal
record and
urged the court to summarily sentence the appellant without it.
He did not then and there draw the trial magistrate’s
attention
to the procedural misstep that I have outlined in the preceeding
paragraph. That was the second omission.
[29]
The first omission was a material procedural irregularity. The
substantive merits of the state case were substantially
compromised.
It is always the prerogative of the prosecutor and not a trial
magistrate to decide whether to accept or to
reject an accused
persons plea. It is also his prerogative to decide on what
factual matrix to accept an accused person’s
plea. Such a
prosecutorial decision determines whether or not a lis is reached
between the two adversaries. If a prosecutor
rejects a plea, a
trial magistrate is obliged to note a plea of not guilty. Since
a lis has not been reached, a prosecutor
is then called upon to lead
evidence against an accused.
[30]
On the facts, it is clear and obvious that the critical stage was
never reached. The appellant believed otherwise –
hence
he was aggrieved when he was subsequently sentenced on the basis of
the factual matrix not contained in his statement.
I have
demonstrated that his belief was erroneous.
[31]
The second omission, though not as material as the first, was
nonetheless also significant. The way the prosecutor reacted
immediately after the verdict, was ambivalent. On the one he
created the unfortunate perception that the prosecutor tacitly
accepted the appellant’s plea. On the other he tacitly
downgraded the appellant’s factual matrix by explicitly
promoting the factual matrix of the complainant’s version.
Instead of probating and reprobating as he did, the prosecutor
was
obliged to immediately point out to the regional magistrate, ideally
in chambers, that the court erred in prematurely pronouncing
the
verdict without first giving him the opportunity of exercising his
prerogative by either accepting or rejecting the appellant’s
plea.
[32]
The deplorable temptation to accept a plea based on distorted facts
must be resisted by prosecutors because distortion of true
facts will
almost invariably have an adverse impact on the ultimate measure of
punishment. Ensuring that an offender’s
plea is grounded
on true factual foundation is a prosecutor’s exclusive
responsibility. That duty must be carried out
without any fear,
favour or prejudice in order to preserve the integrity of the
criminal justice systems. It is also incumbent
upon a trial
magistrate to ensure that s(he) does not overstep the mark between
prosecutorial decisions and judicial decisions.
At times that
fundamental and defining line of demarcation may be very thin.
[33]
The first omission constituted an irregularity of such a magnitude
that it vitiated not only the sentencing component of the
proceedings
(
S
v Pillay
1977 (4) SA 531
(A) at 535 F-G) but the entire trial proceedings.
Both parties were substantially prejudiced by the material
irregularity.
Since it resulted in a mistrial, neither the
conviction nor the sentence should be allowed to stand. In my
view, the appeal
was not so much about the unlawfulness of the
sentence but rather the lawfulness of the verdict.
Consequently, I am inclined
to nullify the trial proceedings as a
whole. The interest of justice dictate that the case be
remitted to the regional court
for the fresh retrial of the accused
persons before a different regional magistrate.
[34]
Accordingly I make the following order:
34.1 The conviction
and the sentence are set aside.
34.2
The case is remitted to the regional court for a fresh trial of the
accused person by a different regional magistrate.
______________
M.
H. RAMPAI, J
I
concur
_______________
J.J.
MHLAMBI, AJ
On
behalf of the appellant:
Adv. M.M Monareng
Instructed
by:
Botes
Mahlobogoane Van Heerden
Attorneys
Vereeniging
On
behalf of the respondent:
Adv. C Steyn
Instructed
by:
Director
of Public Prosecutions
Bloemfontein
/PK