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[2016] ZAECBHC 11
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S v Qhayiso (24/16) [2016] ZAECBHC 11; 2017 (1) SACR 470 (ECB) (30 November 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
CASE NO: 24/16
In the matter between:
THE
STATE
and
MIHLALI
QHAYISO
Accused
REVIEW
JUDGMENT
MBENENGE
J
:
Introduction
[1]
The accused appeared before the Magistrate for the District of
Mdantsane facing two counts of
assault with intent to do grievous
bodily harm. The allegation had been that on or about 27
November 2014 and at or near
Mdantsane Shopping Mall (the Mall) he
unlawfully and intentionally assaulted Sandy Sonwabo (first
complainant) and Siyabonga Daki
(the second complainant) by stabbing
them with a knife. He pleaded not guilty on both counts,
raising self-defence as his
defence on count 1, and a bare denial to
the allegation that he had stabbed the second complainant.
[2]
The incident had been preceded by an event during which the accused
was allegedly robbed of his
cell phone by the complainants on the
previous day. Whilst on his way to report the robbery to the
police on the following
morning the accused came across the
complainants.
[3]
The complainants were the only witnesses called by the State to
testify in pursuit of the charges,
with each one of them having
testified for his part and to the misfortune that befell the other on
the fateful day.
The State case
[4]
The first complainant testified that he and the second complainant
met up with the accused who
did not appear to be in a good mood
demanding his cell phone from them. The demand attracted an
altercation. The accused
started off by poking him on his
face. The second complainant tried intervening, to no avail.
The first complainant
said he became angered and hit the accused with
a clenched fist on his face. As he was turning to leave and
whilst unsuspecting
the accused stabbed him once with a knife on his
back. His legs became numb. He subsequently received
treatment at
Cecilia Makiwane Hospital (the Hospital) where the stab
wound was sutured.
[5]
According to the first complainant “
medical practitioners
”
informed him that he would be permanently confined to a wheelchair
and be unable to walk again. The J88 medical report
under cover
of an affidavit (deposed to in terms of section 212(4) of the
Criminal Procedure Act 51 of 1977 (the Act)) was tendered
as an
exhibit, with the accused’s attorney raising no objection
thereto. Recorded therein is a stab wound on the back
along T8
–T10, 3 inches x ¼ x ¼ and “
weakness
[to] both lower limbs due to injury
.”
[6]
When it was put to the first complainant that the accused got stabbed
during a scuffle that ensued
for the possession of a knife the first
complainant had been carrying, the first complainant said he assumed
that the accused “
stabbed himself by the time he was
stabbing me at the back as he stabbed me severally, so maybe he
managed to stab me by the time
I was falling
.”
[7]
In his testimony the second complainant confirmed having been in the
company of the first complainant.
He said he got stabbed
by the accused who had been in the company of a certain “
Frans
”.
He went on to say:
“
So
Frans was asking this vetkoek from me, as I was busy sharing this
vetkoek with Frans there was an argument, a quick argument
behind us
between the accused of the complainant. But Frans said that no
I must ignore them. As I was just shared this
vetkoek with
Frans I just noticed the complainant already stabbed by the accused
person. (
Interpreter:
And
the witness is pointing at the back). As I was trying to know
what is happening the accused person advanced at me with
a knife.
So as he advanced at me with a knife I tried to retreated as he was
not from me and it appeared that as he stabbed
the complainant at the
back the complainant was turning away from him. And at that
stage Sandi, or the complainant was already
down at that time, so as
I was moving backwards I tried to look for anything so that I cab be
able to defend myself.
So I managed to pick a stone but
the accused has already stabbed me. (
Interpreter
:
And the witness is pointing on the right shoulder). As I picked that
stone so the accused did not continue. So the accused
turned
away and I went to the complainant and the complainant was
complainant as his legs cannot move. So I tried to get
a car to
convey us to the hospital. And we went to the hospital.
At the hospital as I was stitched and the complainant
was stitched,
it is whereby the accused person emerged. And it appeared that
he stabbed himself on the thigh…, and
he was making a noise
saying that you stabbed me, so that the doctors can hers.”
Sic
The accused’s
version
[8]
The accused testified in his defence. On the day in question he
had been on his way to the
police station to lay a charge against the
two complainants who he said had robbed him of his cell phone on the
previous day.
He met the complainants by the Mall. They
were in the company of three other unknown persons. He enquired
about the
whereabouts of his cell phone. The complainants
denied knowledge of the phone, saying the accused should not take
them for
granted. They (the complainants) drew knives.
The first complainant advanced at him, and as he was about to stab
him,
he grabbed the knife. A struggle for the possession of the
knife ensued. The accused dispossessed the first complainant
of
the knife and stabbed him on his back. One of the complainants’
companions stabbed him on his thigh. He managed
to escape and
was thereafter conveyed to the Hospital where he received treatment.
In short, the accused said he had been
confronting the complainants
about his phone, they attacked him and he defended himself.
The magistrate’s
findings
[9]
The Magistrate found that the second complainant’s evidence
came short of being reliable.
This resulted in the accused
being found not guilty and discharged on count 2.
[10]
The version of the accused that he was acting in self-defence was
upheld by the Magistrate as having been
reasonably and possibly true.
The Magistrate was however of the view that the accused had
become the “
attacker himself
” by causing more harm
to the first complainant whom he stabbed on the spinal cord.
Purely on this ground, coupled with
the Magistrate’s finding
that “
[t]the evidence of the accused was not corroborated by
any other evidence
”, the version of the accused in respect
of count 1 was rejected, resulting in the accused being convicted on
count 1.
Referral to the
Regional Court
[11]
The accused thereupon testified in mitigation of sentence, followed
by an application made by the accused’s
attorney that the
matter be “
postponed for correctional supervision
.”
After the Prosecutor had addressed the court on sentence, the
Magistrate was of the view that the offence of which
the accused had
been convicted merited punishment in excess of the jurisdiction of
the District Magistrate’s Court.
Referral to the High
Court
[12]
The Regional Magistrate, Mdantsane to whom the matter was referred
for sentence, expressed doubt as to whether
the proceedings had been
in accordance with justice and referred the matter to this court for
review in terms of section 116(3)(a)
of the Act.
[1]
[13] Of
paramount importance are the following remarks made by the Regional
Magistrate underpinning his view on
the impugned proceedings:
“
It
turns out that the second complainant apparently lied about being
stabbed in the shoulder by the accused and it also resulted
in the
accused being found not guilty on count 2.
This should lead to some
caution in the treatment of the evidence of the two complainants
where it was shown that the second complainant’s
evidence could
not be relied on. It should also cast a shadow on the evidence
of the first complainant where he supports
the version of the second
complainant that he (second complainant) was stabbed by the accused.
The accused gave
plausible explanation of how he inflicted the wound on the back of
the complainant whilst the state witnesses speculate
that the accused
stabbed himself in the thigh.”
[14] A
plethora of queries was raised by the Regional Magistrate. Two
of those questions, which go to the
root of the problem in this
matter, are:
“
Page
69 of the record line 13: Did the court convict the accused on his
own version or on the version presented by the state witnesses?
Line 17: “
The
evidence of the accused was not corroborated by any other evidence
”
The court, rightly so,
acquitted the accused on count 2 due to the apparent lie about the
second state witness being stabbed in
the shoulder by the accused.
It is common cause that the accused suffered a stab wound to the
thigh. The state witnesses
tendered an extremely unlikely
submission that accused may have stabbed himself in the thigh.
It is correct therefore to
state that the evidence of the accused is
not supported by any other evidence?” Sic.
Those pertinent questions
did not immediately attract an answer from the Magistrate.
[15]
The views of the Director of Public Prosecutions, Bhisho (DPP)
regarding the propriety of the test invoked
by the Magistrate were
sought. This precautionary step was taken because the
possibility of the setting aside of the conviction
was looming, and
it became prudent to give the State a hearing on the matter. On
the authority of
R
v Difford
[2]
the DPP opined that because
the Magistrate believed the version of the accused as having been
possibly true she ought to have given
the accused the benefit of the
doubt especially given that she had acquitted the accused on court 2
on the basis that the complainants
had lied in material respects even
in relation to count 1.
[16]
For the sake of completeness, I invited the Magistrate to comment on
the propriety or otherwise of the test
she invoked. She
eventually conceded, albeit for different reasons,
[3]
that the accused ought to have been acquitted.
[4]
[17] It
is clear from a reading of the record and the Magistrate’s
response to the review query that she
accepted the version of the
accused (that he had been defending himself) as having been
reasonably and possibly true. She
was not entitled to reject it
on the basis that the accused exceeded the bounds of self-defence.
That was never the case
of the prosecution in the first place. In
any event, the finding flies in the face of the accused’s
version that he,
too, was threatened by the complainants and their
companions and received a stab wound to his thigh from one of his
captors.
[18]
The test applicable in criminal trials was stated in
S
v Sithole & Others
[5]
as follows:
“
There
is only one test in a criminal case, and that is whether the evidence
establishes the guilt of the accused beyond the reasonable
doubt.
The corollary is that an accused is entitled to be acquitted is there
is a reasonable possibility that an innocent
explanation which he has
proffered might be true. These are not two independent test,
but rather the statement of one test,
viewed from two perspectives.
In order to convict, there must be no reasonable doubt that the
evidence implicating the accused
is true, which can only be so if
there is at the same time no reasonable possibility that the evidence
exculpating him is not true.
The two conclusions go hand, each
one being the corollary of the order. Thus in order for there
to be a reasonable possibility
that an innocent explanation which has
been proffered by the accused might be true, there must at the same
time be a reasonable
possibility that the evidence which implicates
him might be false or mistaken.”
[19]
The Magistrate was therefore wrong in convicting the accused after
she had accepted his version as having
been reasonably and possibly
true. Purely on this basis, the conviction cannot stand.
Unfair trial
[20]
There are some areas of concern so adeptly raised by the Regional
Magistrate that call for attention.
Without those concerns
being dealt with, this judgment would be incomplete. The
concerns that are pivotal to this judgment
may briefly be summarized
as follows:
·
The interference by the Magistrate in the
cross-examination of the accused
·
Questioning by the Magistrate after
re-examination without the State and defence being thereafter invited
to further pose questions
on matters arising for the Magistrate’s
questioning
·
Irregular procedure followed in re-opening
the State case
·
Failure by the Magistrate to allow the
accused to show his scar to the Court as proof of having been stabbed
These are dealt with, not
necessarily in the order in which they have been enumerated, herein
below.
[21]
The record is revealing concerning how the Magistrate interposed
during the cross-examination of the first
complainant. The
relevant portion of the transcript is lengthy (comprising some 5
pages), but the following questions and
answers capture what is of
essence:
“
Mr
Makeleni
I just wish it was taken note
of that you are misleading the Court with all now this, because now
you are saying that Mabhuti was
the one who enquired from the
accused. …Yes it was Mabhuti who was asking about the phone.
Whereas the impression
that you gave is that the accused came to you and asked about this
phone.
Court
:
Mr Makeleni you must know that we are
not about the phone here, the charge is assault with intent to do
grievous bodily harm; it
is not robbery theft of a phone.
Mr
Makeleni:
But Your Worship he accused
gave evidence – the witness gave evidence about this phone.
Court
:
But I am telling you that you must
know that the charge here is assault with intent to do grievous
bodily harm, it is not about
the robbing of a phone or theft of a
cell phone.
Mr
Makeleni:
Your Worship
…..(
intervention
).
Court
:
I hear you dwelling much on the issue
of a cell phone.
Mr
Makeleni:
I know …(
intervention)
.
Court:
Of which this issue of a cell phone is not taking
us anywhere.
Mr
Makeleni:
I am still going
…(
intervention)
.
Court
:
And the cause of the fracas is the
cell phone, that the accused was demanding cell phone from the
[complainant] person and that
is all about the cell phone. Then
do not dwell much on the issue of a cell phone because we are not
about the cell phone
here, the charge is assault with intent to do
grievous bodily harm …(Xhosa).
Mr
Makeleni:
Your Worship I am still going
there because the reason there was this …
(intervention)
.
Court
:
(Xhosa) …the charge here is
assault with intent to do grievous bodily harm.
Mr
Makeleni:
And the reason why there was
this assault Your Worship is because of the cell phone.
Court:
That is not in dispute that the accused was
demanding his cell phone from the witness and this one did not know
anything about the
cell phone of the accused, he said so. What
I am saying, do not dwell much on the issue of a cell phone here, we
are not
about the cell phone, the charge is assault with intent to do
grievous bodily harm. If your cross-examination is disputing
that the accused stabbed the complainant you must ask questions on
that.” Sic.
[22]
The questioning by the Magistrate exceeded normal bounds. There
are limitations set within which judicial
questioning should be
confined. In
S
v Rall
[6]
the then Appellate Division provided the following useful guidelines
which the Magistrate overlooked.
“
(a)
A judicial officer should so conduct the trial that his or her
open-mindedness, impartiality and
fairness are manifest to all those
who are concerned in the trial and its outcome, especially the
accused (see, for example,
S V Wood
1964 (3) SA 103
(O) at 105G;
Rondalia
Versekeringskorporasie van SA Bpk v Lira
1971 (2) SA (A) at 589G;
Solomon and
another NNO v De Waal
[1972] 2 All SA
(1972(1) SA 575 (A) at 580H)
(b)
The Judge should consequently refrain from questioning any witnesses
or the accused in a
way that, because of its frequency, length,
timing, form, tone, contents or otherwise, conveys or is likely to
convey the opposite
impression (see
Greenfield Manufactures
(Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd
1976
(2) SA 565
(A) at 570 E—F;
Jones v National Coal Board
[1957] EWCA Civ 3
;
[1957] 2 All ER 155
(CA) at 159F)
(c)
A Judge should also refrain from indulging in questioning witnesses
or the accused in such
a way or to such an extent that it may
preclude him or her from objectively adjudicating upon or
appreciating the issues being
fought out before him or her by the
litigants. As Lord Greene Mr observed in
Yuill v Yuill
[1945] 1 All ER 183
(CA) at 189B, if he or she does indulge in such
questioning:
“…
he,
so to speak, descends into the arena and is liable to have his vision
clouded by the dust of the conflict. Unconsciously
he deprives
himself of the advantage of calm and dispassionate observation.
(See, too, the Jones case
supra
at
159C-E) Or, as expressed by WESSELS JA in
Hamman
v Moolman
1968 (4) SA 340
(A) at 344E, the Judge may thereby deny himself –
‘
the
full advantage usually enjoyed by the trial Judge who, as the person
holding the scale between the contending parties, is able
to
determine objectively and dispassionately, from his position of
relative detachment, the way the balance tilts…”
(d)
A judge should also refrain from questioning a witness or the accused
in a way that may
intimidate or disconcert him or her, unduly
influences the quality or nature of his or her replies and thus
affect his or her demeanour
or impair his or her credibility.”
[23]
The interference by the Magistrate in the cross-examination conducted
by the defence was not justified. A
trial can be fair or not fair
resultant from how cross-examination is permitted to unfold.
[7]
The stabbing incident was triggered by the alleged robbery of
the accused’s cell phone. The Magistrate’s
interjection on the basis that the case was not about a cell phone
but about an assault was unwarranted. In conducting herself
the
way she did, she descended into the arena and associated herself with
prosecution, thus contaminating the proceedings by not
acting in an
open-minded and impartial fashion.
[24]
After the accused had been cross-examined by the Prosecutor and
re-examined by his attorney, the Magistrate
subjected him to
questioning on various aspects of his version. The relevant
portion of the transcript, demonstrative of
a yet another unpalatable
exchange with the accused, reads:
“
Court
:
I have got some few questions. You said you were stabbed, who stabbed
you? I did not see the real person who stabbed me
…(
intervention
).
Who stab you?... But they were five, it was Mabhuti, Sandi and the
Others.
That means all of the
them they stabbed you on your thigh? Not all of them.
Who stabbed you?...Let me
say it was Mabhuti.
Or you are not
sure?...The reason why I said so it is because he was the one who was
behind me. You said others were still
coming, at what time they
came closer to you?... They came closer by the time they
noticed that I am struggling with this
young man I am dispossessing
the knife. They were carrying knives?... Yes. Do you not
think at the time you were struggling,
dispossessing the knife from
the complainant five people would have killed you?...Yes I am
thinking of that but I was in front
of the one whom I was struggling
with, so I was not facing at them.
Why did you go to the
witnesses and asked them about your phone they took yesterday instead
of going to the police to report your
phone?... I thought that they
will give me back as I did not know the previous day whether they
were drunk or not. Did they
give you?...No. What did you
do?... I did nothing, I did not to go and lay charges against them.
You are here because you
stabbed both witnesses and you say they stabbed you but you are not
sure who stabbed you, did you lay a
charge?...No I did not go and lay
a charge. Why, because they laid a charge against you because
you stabbed them?...The reason
why I did not go and lay a charge, I
was told not to lay a charge.
You were defending
yourself against who?...Against Sandi and Mabhuti as I asked them,
they insulted me and they advanced at me.
Is there any injury
you sustained as a result of assault by complainant Sandi?...That is
correct, it was wound on the thigh.
You were stabbed by
Sandi?...Not by Sandi. Can you answer the question please?
Is there any injury you sustained as
a result of assault by
Sandi?...Yes.
Where?...It is this only
wound. Do you understand the question?...Can you repeat?”
Both
arms were moving from left to right, from right to left. So as
I managed to dispossess him he was falling, (I
nterpreter
:
And he showed by bending towards the left side). Did you hear
the complainant saying you asked him about your phone
and you were
poking, continued poking at him and he was fed up of that and he hit
you with a fist and you were shocked because
you were assaulted by
him and he went away and you followed him and you stabbed him at his
back?...I heard him when he said that
I think he was just
fabricating.
Then why it was not
disputed by your attorney in cross-examination?...I did not tell my
attorney that.
If you did not tell your
attorney about this, because everything that is asked by your
attorney is on instruction, is it not an
afterthought what you are
saying?...No it is not an afterthought. You say your parents
said you must not lay a charge against
the witnesses, leave them like
that they wanted you to make a revenge because you were robbed? I am
saying that everyone who is
offended by someone is going to the
police and lay a charge.
Mr
Makeleni
: Your worship I hear the
accused is saying that he need to attend to nature Your Worship, he
is going to pee on his …(
intervention
).
Court
: (Xhosa) …answer this
question.” Sic.
[25]
These questions were hardly questions to get clarity on certain
unclear issues,
[8]
but
constituted cross-examination, with the result that the Magistrate
descended into the arena, transgressing the guidelines stipulated
in
S
v Rall
.
[9]
In any event, neither the accused’s attorney nor the
Prosecutor was afforded the opportunity to question the accused
in
relation to any matters that arose from the accused’s answers
to the Magistrate’s questions.
[10]
[26]
The Magistrate’s lopsided approach once again reared its ugly
head when, in the course of the trial,
the accused sought to show the
Court the stab wound to the thigh he had sustained. That
endeavour was thwarted by the Magistrate’s
interjection:
“
no,
no, no, no, no, we do not want to see the inner part of his
trousers. If he was stabbed the doors are opened for him to
open a case so that he can show the injury and J88 to that case in
that court, not in this case.”
Given
that the accused claimed to have been defending himself, it was
important for the Magistrate to allow him to show his scar
as proof
of having been stabbed to the thigh. The Magistrate’s
appears to have “
favoured
the State in a way that could only lead to the administration of
justice falling into disrepute and a perception of bias
on her
part.
”
[11]
[27]
The last issue concerns the procedure that was followed when the
second complainant was being recalled to
testify. Despite the
accused’s acquittal on count 2, this issue is dealt with in
order to demonstrate how the entire
trial served to mock and
constitute a travesty of justice. Shortly after the second
complainant had been cross-examined and
the State had indicated that
it had no questions in re-examination, the Magistrate became
concerned that no medical report supportive
of the stabbing of the
second complainant had been handed in. The relevant portion of
the transcript reads:
“
Court
:
Any re-exam?
Prosecutor
:None your Worship.
Court
:Thank you, you may sit down.
Witness excused
Prosecutor
:
That will be the State’s case
your worship.
Court
:The witness said he went to hospital and stitched
there as he was stabbed by
the complainant –
by the accused.
Prosecutor:
Yes your Worship. There is a
(indistinct) however your Worship the J88 Your Worship is
……..(indistinct) is not available
your Worship.
Court
:
Hmm?
Prosecutor:
The J88 your Worship is not available in the
docket.
Court : Where is the
proof that the accused was – the witness was stabbed?
Prosecutor
:
But your Worship the J88 your
Worship would be that relevant proof your Worship, however it is not
within the docket your Worship.
IO do not know whether
…(indistinct) of postponing the matter in order your Worship
to establish – to …(indistinct)
Court
: Where is the proof that the
witness was stabbed?
Prosecutor
:
Your Worship if I may just consult with the witness.
Court
: Consult on what?...it is not in the
docket your Worship .
Court
:
Then if there is no J88 why the
injuries were not shown to Court?
Prosecutor:
Well your Worship he did point your
Worship at where he …(intervention).
Court
:
Point where
Prosecutor
: At the shoulder your Worship.
Court
: If I point here can I see now there
is an injury here?
Prosecutor
:No Worship
Court:
Did you see the injury?
Prosecutor
: No your Worship, I did not see it.
Court
:
If you say he pointed on the shoulder, then did you see injury?
Prosecutor:
No
your Worship.
Court
:Where
is the proof that the accused – the witness was stabbed?
Prosecutor
:
Your Worship if I may then your Worship humbly so your Worship apply
that we recall the State witness your Worship so as to establish
…(indistinct).
Court:
The State case is not yet closed?
Prosecutor
:
(Indistinct)… If I may then call your Worship recall the
witness your Worship to the stand.
Court
:
Mm
Siyabonga
Diki
: Recalled
Further
questions by the Prosecutor
:
Prosecutor:
Apologies your Worship. I had to recall you
because now you said that after the attack you together and the
complainant went
over to the hospital you were observed by medical
practitioners. …That is correct.
Yes, and you mentioned
that you were treated with the injury that you sustained from the
attack?... That is correct.
What sort of treatment
did you receive? …As it was a wound, but it was not big, I was
stitched.
Dou you still have
visible stitches or scars from …(intervention)? …That
is correct.
Could you kindly show
this Court…(Indistinct).
Court
:
I cannot see.
Prosecutor
: Can you move closer.
Court
:I cannot see. Dou you see something
here?
Prosecutor
:
No. Also proceed to the defence attorney as well.
Court
:
Can you show the attorney, maybe he is going to see something.
What happened to your back?...(No interpreted).
Huh?...I was stabbed?
Where?...In zone 6
When?...Tuesday.
Thank you, you may sit
down. It that the State case?
Prosecutor
:
Yes your Worship”
[28] In
her reply to the relevant query by the Regional Magistrate, the
Magistrate said:
“
Application
to re-open the State case was not done properly by the State and the
defence did not get the opportunity to respond.
It was an
oversight on the part of the Court due to inexperience of aspirant
prosecutor.” Sic.
[29]
The Magistrate’s response on this aspect leaves much to be
desired. She seeks to shift blame
for an oversight on her part
to the Prosecutor. The excuse is unavailing. It is trite
law that the Court has a general
discretion that must be exercised
judicially upon the facts of each case to allow a party who has
closed its case to re-open it
and to lead evidence at any time before
judgment.
[12]
It is not
hard to envisage a situation where judicial officers presiding over
lower courts sometimes get confronted with
inexperienced prosecutors.
It remains the duty of Magistrates to ensure that proper
procedures are followed at all stages
in a trial. There was a
duty cast on the Magistrate to guide the inexperienced Prosecutor
where there were indications of
him floundering as she is not merely
a figure-head. She had a duty not only to direct and control
the proceedings according
to recognised rules of procedure but to see
that justice is done.
[13]
[30] It
is clear from the above quoted excerpt that the State had elected to
close its case after the second complainant
had been cross-examined
by the accused’s attorney. No formal application was made
to re-open the State case.
The defence was also not afforded
the opportunity to cross examine the second complainant. One
cannot help but observe that,
whilst the Magistrate was more than
eager to allow the second complainant to show his alleged injury to
the court, the same benevolence
was not extended to the accused.
Conclusion
[31]
The Magistrate wrongly convicted the accused after invoking a wrong
test and the proceedings were thus vitiated.
[32]
Therefore, I propose the following order:
The
accused’s conviction on count 1 and the resulting sentence are
set aside
.
S M MBENENGE
JUDGE OF THE HIGH
COURT
30 November 2016
I agree
D VAN ZYL
DEPUTY JUDGE PRESIDENT
OF THE HIGH COURT
[1]
The
section provides:
“
(3)(a)
The regional court shall, after considering the record of the
proceedings in the magistrate’s court,
sentence the accused,
and the judgment of the magistrate’s court shall stand for
this purpose and be sufficient for the
regional court to pass any
competent sentence: Provided that if the regional magistrate
is of the opinion that the proceedings
are not in accordance with
justice or that doubt exists whether the proceedings are in
accordance with justice he or she may
request the presiding officer
in the magistrate’s court to provide him or her with the
reasons for the conviction and if,
after considering such reason,
the regional magistrate is satisfied that the proceedings are in
accordance with justice he or
she may sentence the accused, but if
he or she remains of the opinion that the proceedings are not in
accordance with justice
or that double exists whether the
proceedings are in accordance with justice he or she shall, without
sentencing the accused,
record the reasons for his or her opinion
and transmit such reasons and the reasons of the presiding officer
of the magistrate’s
court, together with the record of the
proceedings in the magistrate’s court, to the registrar of the
provincial division
having jurisdiction, and such registrar shall,
as soon as possible, lay the same in chambers before a judge who
shall have the
same powers in respect of such proceedings as if the
record thereof had been laid before him or her under section 303.”
[2]
1937
AD 270
at 272.
[3]
This
is how she responded to my query:
“
5.
The magistrate had an oversight, she meant to say, “
if
the court takes the evidence of the accused as reasonably true that
he was defending himself, he exceeded the bounds of self-defence
by
causing more harm to the complainant by stabbing him on the spinal
cord
.”
6.
The doctor was not called by the state to testify on the findings
appearing
on J88. On those grounds the state failed to prove
its case beyond reasonable doubt and that warrants the accused
acquittal.”
[4]
The
test she invoked is dealt with more fully in paragraph [10] above.
[5]
1999(1)
SACR 585 (W) AT 590 g-i
[6]
[1982]
1 All SA 258
; 1982 (1) SA828 (A) at 831-H832H.
[7]
Jolingana
vs The State
2016 (2) SACR 404
(ECB) at para [16].
[8]
Mokoena
v S
[2014]
ZAGPJHC 141 (15 May 2014).
[9]
Supra
[10]
R
v Khumalo
1947 (4) SA 156
(N); see also
S
v Mseleku & Another
2006 (2) SACR 237
(N) where Nicholson J said the following
concerning
section 167
of the
Criminal Procedure Act:
“
[10
]
If the Court examines any person in terms of
section 167
the
prosecutor and the accused may put questions arising from such
further questioning by the Court…”.
[11]
Per
CJ Claassen J in
S
v Du Plessis
2012 (2) SACR 247
(GSJ) at para [25].
[12]
S
v Felthun
1999 (1) SACR 481.
[13]
R
v Hepworth
1928 AD 265
at 277, quoted with approval in
S
v Rall (supra)
;
see also
S
v Musiker
2013(1) SACR 517 (SCA) at para [17].