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[2016] ZANCHC 75
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S.V v S (39/16) [2016] ZANCHC 75 (16 November 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
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
HIGH
COURT REF NO:
39/16
CASE
NO:
RC21/2015
DATE
DELIVERED:
16/11/2016
In
the matter between:
V.,
S.
Accused
and
THE
STATE
Coram:
Olivier
J
et
Erasmus
AJ
JUDGMENT
Olivier
J:
[1.]
The
accused appeared in the Regional Court, Daniëlskuil, on charges
of murder (count 1) and assault with intent to cause grievous
bodily
harm (count 2). He pleaded not guilty, but was convicted on the
count of murder, and on count 2 he was convicted of
common assault.
He had been 16 years old at the time of the incident, and he was 17
years old when he pleaded to these charges.
The convictions
were taken together for purposes of sentence and the accused was
sentenced to compulsory residence for a period
of 4 years in a Child
and Youth Care Centre
[1]
.
The matter is now on automatic review. As will appear in due
course the proceedings were not in accordance with justice,
to put it
mildly.
[2.]
The
accused was represented by the attorney Ms Ilanga, apparently on
behalf of Legal Aid South Africa. In respect of count
1 Ms
Ilanga simply stated that the accused had acted in self-defence.
No detail was at that stage furnished regarding this
defence or the
circumstances that had necessitated the killing of the deceased.
[3.]
Ms
Ilanga, astonishingly, put it on record that she did not “
really
”
have instructions from the accused on count 2. She
nevertheless, equally astonishingly and without requesting an
opportunity to obtain such instructions, informed the Regional
Magistrate that the accused “
will
elect
”
not to furnish any plea-explanation in respect of count 2. I
will in due course revert to the issue of the accused’s
legal
representation.
[4.]
The
prosecutor presented the evidence of two witnesses, Mr Michael
Barends and Mr John Ross, and the accused testified in his own
defence.
[5.]
Although
the Regional Magistrate asked introductory questions like whether
they had any objection to taking the oath, the actual
swearing in of
all three these witnesses was for some reason conducted by the
interpreter. This in itself constituted a fatal
irregularity
[2]
.
[6.]
It
was common cause that the incident occurred on a farm at the houses
of two farm labourers. Everybody concerned and present
were
farm labourers and/or lived on that farm or the adjacent farm.
It appears that most of them were to some extent under
the influence
of alcohol.
[7.]
It
was also common cause that the accused had stabbed both the deceased
and the complainant in count 2, the said Mr Barends, with
a knife.
[8.]
The
version of Mr Barends was, very briefly, that there had been a fight
between the deceased and a certain Mr Nico Kgetile over
beer.
During the fight the deceased threw a stone at Mr Kgetile, but
apparently hit a certain Casper. While Mr Barends
was trying to
take the deceased aside and to calm him down, the accused approached
the two of them and, without saying anything,
attacked the deceased
and stabbed him. When Mr Barends tried to intervene, the
accused stabbed him too.
[9.]
The
version of Mr Ross, on the other hand, was that the initial fight had
been between the deceased and Casper. He denied
having any
knowledge of a fight between the deceased and Mr Kgetile. He
also made no mention of Mr Barends having tried to
intervene before
he was stabbed. According to Mr Ross the accused, when
attacking the deceased and Mr Barends, told them
that he was stabbing
them because they would not listen, whatever that meant.
[10.]
In
cross-examination of Mr Barends, Ms Ilanga simply put it to Mr
Barends that he and the deceased had assaulted the accused, and
asked
him to explain the fact that photograph 17
[3]
depicted the accused with a bandaged foot. Mr Barends denied
that they had assaulted the accused, but could not explain the
bandaged foot and the injury to the accused. Ms Ilanga did not
in cross-examination confront Mr Barends with any detail of
the
alleged attack on the accused, like how and with what the attack had
been executed, or where.
[11.]
She
did not in cross-examination of Mr Ross confront him at all with the
accused’s defence.
[12.]
When
the accused was called he furnished a detailed version of the attack
of the deceased and Mr Barends on him. He explained
how the
deceased had hit him with a brick, how he had fled into a house,
followed by the deceased and Mr Barends, how the two of
them had then
assaulted him inside the house,
inter
alia
with a brick and a piece of wood, how he had then armed himself with
a knife that he had found inside the house, how he had warned
the two
of them that he would use it if they did not leave him alone and
about how he had eventually stabbed them after they had
nevertheless
followed him out of the house, and while they were attacking him.
He explained that his toe was injured when
it was hit by a stone
thrown by the deceased in the course of their attack on him.
[13.]
This
detailed version makes it clear that Ms Ilanga’s
cross-examination of Mr Barends was extremely superficial and indeed
inadequate, let alone that of Mr Ross.
[14.]
Ms
Ilanga, with respect, apparently did not even properly understand the
evidence of Mr Barends. When the prosecutor confronted
the
accused in cross-examination with the evidence
[4]
that Casper had been hit by an object thrown by the deceased at Mr
Kgetile, Ms Ilanga intervened and wanted to know who had testified
to
that effect.
[15.]
The
Regional Magistrate, Mr Sulliman, for some reason then asked the
prosecutor to rephrase the particular question. That
had indeed
been the evidence of Mr Barends, as already pointed out, and the
question arises whether the Regional Magistrate himself
had, with
respect, properly followed and understood the evidence before him.
[16.]
In
his judgment the Regional Magistrate found that Mr Ross had
corroborated Mr Barends “
in
all material respects
”.
This is simply incorrect and a serious misdirection. It is very
clear, even from the brief summaries of their
evidence above, that
there were serious discrepancies between the versions of Mr Barends
and Mr Ross.
[17.]
In
rejecting the accused’s defence, the Regional Magistrate
claimed to have entertained “
the
probabilities and improbabilities on both sides
”,
without however dealing with a single such probability or
improbability.
[18.]
The
Regional Magistrate found the defence of the accused to have been “
an
afterthought and fabrication
”,
but failed to explain why.
[19.]
The
Regional Magistrate did not even so much as mention the injured
foot/toe of the accused, depicted on photographs taken on the
very
day that the incident had taken place.
[20.]
Even
if there had been merit in the rejection of the accused’s
version, which there in the circumstances had probably not
been, it
is incomprehensible why the Regional Magistrate had, on the evidence
of the prosecution then, not been prepared to find
that the accused
had intended to inflict grievous bodily harm when he stabbed Mr
Barends twice, causing him to be taken to hospital,
where 8 stiches
were required to the one wound.
[21.]
In
what can unfortunately only be described as a sequence to the comedy
of errors that had led to the convictions, the Regional
Magistrate
considered sentence on the two counts as if he had on count 2
convicted the accused as charged, in other words of assault
with
intent to cause grievous bodily harm, apparently losing sight of the
fact that he had in fact on that charge convicted the
accused of only
common assault.
[22.]
The
charge sheet (J15) reflects the conviction on count 2 as “
Aanranding
GBH
”.
The abbreviation “
GBH
”
would presumably be a reference to “
grievous
bodily harm
”,
but if this English abbreviation had indeed been recorded at the same
time as the Afrikaans word “
Aanranding
”,
this would be irreconcilable with the findings of the Regional
Magistrate in his judgment
[5]
that “
there
was no evidence by the State that the complainant was assaulted with
intention to do grievous bodily harm
”
and that the accused was therefore on that count “
guilty
of assault
”.
It would appear that the Regional Magistrate may have been misled by
the prosecutor’s remark, in his address
on sentence, that the
accused had on that count been convicted of assault with intent to
cause grievous bodily harm. Ms Ilanga
was, according to the
record, then also not given the opportunity of reply.
[23.]
The
Regional Magistrate laboured under the impression that the social
worker had recommended a sentence of compulsory residence
in terms of
the Child Justice Act. The social worker had actually
recommended a sentence “
in
terms of
section 276(1)(i)
of the
Criminal Procedure Act 51 of 1977
with an option of Correctional Supervision
”.
The social worker in fact expressed the opinion that, because the
accused would within 2 to 3 years from then reach
the age of 21
years, a sentence of compulsory residence as intended in the Child
Justice Act “
would
not serve its intended purpose
”.
[24.]
In
view of the conclusion regarding the convictions it is not, however,
necessary to deal with the issue of sentence in any further
detail.
In the premises the following order is made:
THE
CONVICTIONS AND SENTENCES ON BOTH COUNTS 1 AND 2 ARE SET ASIDE.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
_____________________
S
L ERASMUS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
[1]
In terms of section 76 of the
Child
Justice Act
, 75 of 2008
[2]
Compare
S v Machaba
and Another
2016 (1) SACR 1 (SCA)
[3]
Of exhibit “D”
[4]
Of Mr Barends
[5]
See page 51 of the transcribed record