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[2016] ZAGPPHC 184
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S v Ngxobongwana (A186/16) [2016] ZAGPPHC 184 (7 April 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
DATE:
15/3/2016
A186/16
7/4/16
High
Court Ref no: 65/16
Magistrate's
Serial No: Special Review 8/2015) (Lydenburg)
Review
case no: LC315//2015
In
the matter between:
THE
STATE
and
NOLUVIWE
JEANET NGXOBONGWANA
REVIEW
JUDGMENT
RABIE
J :
1.
This matter came before me on Special Review in terms of section 304
(4) of the Criminal Procedure Act, Act 51 of 1977. The matter
was
sent on review by the Acting Judicial Head for the Magisterial
District of Lydenburg who stated in an accompanying letter that
the
matter came to his attention during the ordinary course of his
duties.
2.
The accused was charged with one count of theft in that on or about 4
June 2014 at or near Lydenburg Shoprite Store she wrongfully
and
intentionally stole an amount of R1 100,00 , the property of or in
the lawful possession of Eva Letsoalo. The accused was convicted
as
charged and was sentenced as follows: "accused is ordered to pay
the complainant one thousand and one hundred Rands as
compensation,
or in default of payment to undergo thirty days imprisonment. Payment
must be effected on 16/11/2015 at the Clerk
of the Court, Lydenburg.
In terms of section 103 (2) of Act 60 of 2000 accused is not declared
unfit to possess a firearm."
3.
In the aforesaid accompanying letter the Magistrate, firstly, noted
that the accused appeared in person, pleaded not guilty and
that the
trial Magistrate dealt further with the matter in terms of section
115 of the Criminal Procedure Act. Secondly, regarding
the sentence,
the Magistrate stated that in his opinion the trial Magistrate had
erred in imposing the aforesaid sentence for the
reason that "it
is not in accordance with justice as it is not authorised in terms of
section 276 (1) of Act 51 of 1977 -
the nature of punishments."
4.
I agree with the view of the Magistrate and consequently the sentence
has to be set aside.
5.
The Magistrate, however, went further and stated that in his
submission the proceedings in terms of section 115 of the Act were
not conducted in accordance with justice for the following reasons:
1.
As the accused contacted her own defence, her
right to access to information was not explained.
2.
Her right to making a statement disclosing the
basis of her defence was not properly explained.
3.
Her right to cross examination was not properly
explained - section 166 of Act 51/1977.
4.
Her rights at the end of the State case was not
properly explained."
6.
The Magistrate stated that he was
functus officio
in regard to
the matter and consequently referred the matter on review to this
court.
7.
I agree with the aforesaid submissions of the Magistrate and I
consequently agree that the trial was inherently flawed and not
according to justice. For this reason the conviction should be set
aside.
8.
There is a further reason which was not mentioned by the Magistrate
but which in my view also leads to the setting aside of the
conviction of the accused. In this regard it is necessary to refer to
a few facts of the matter. According to the complainant she
deposited
the amount of R1 100,00 at a branch of Shoprite in Johannesburg for
collection by her sister-in-law at a branch of Shoprite
in Lydenburg.
After making the deposit she telephoned her sister-in-law informing
her of the deposit and informing her of the reference
number of the
transaction. She told her sister-in-law that she would advise her of
the PIN number once she is in the shop ready
to make the withdrawal.
9.
On her arrival at the shop in Lydenburg the sister-in-law was unable
to withdraw the money. She was informed by the relevant
personnel
that the money had already been withdrawn that same morning.
10.
On further investigation, presumably by the police, it was stated on
behalf of the shop in Lydenburg that a copy of the identity
document
of the accused was used to withdraw the money. This led to the charge
against the accused.
11.
From the evidence of the complainant, her sister-in-law, an employee
of the shop in Lydenburg, which was called by the trial
Magistrate,
and also from the evidence of the accused, it appeared that in order
to make a withdrawal of money deposited at a different
branch of the
shop, the person making the withdrawal has to present that person's
identity document as well as the reference number
and the PIN number
relating to the particular transaction. It appeared that the shop in
Lydenburg was only in possession of a copy
of the accused's identity
document and that no evidence could be presented that either the
reference number or the PIN number had
been presented when the
withdrawal was made.
12.
The accused testified that she had in the past received money from
this particular shop which had been deposited in her favour
from
another branch and that the shop consequently had a copy of her
identity document in their records. She denied, however, that
she
withdrew the amount deposited in this instance by the complainant and
also denied that she could have been able to do so since
she did not
possess the reference number nor the PIN number relating to this
deposit by the complainant. It was common cause that
the accused and
the complainant and her sister-in-law were not known to each other.
13.
The main reason for the trial Magistrate to convict the accused was
because the shop in Lydenburg was in possession of a copy
of her
identity document which proved, according to the trial Magistrate,
that the accused must have been the person who withdrew
the money
from the shop.
14.
The difficulty with this finding is that it totally ignores the
evidence by the complainant, the sister-in-law and the official
from
the shop, that it was impossible to make a withdrawal without
submitting the reference number as well as the PIN number relating
to
this specific deposit. The sister-in-law's evidence was different
from that of the complainant in that she testified that the
complainant gave her the reference number as well as the PIN number
when she telephoned her. The sister-in-law also testified that
she
informed her family members of the money that was being sent but she
denied that she gave any of her family members the reference
number
and/or the PIN number.
15.
The fact remains that on the State's own evidence, the accused would
not have been able to withdraw the money from the shop
without
presenting the shop with the reference number as well as the PIN
number before doing so. On the State's own version the
accused was
accordingly incapable of withdrawing, and thus stealing, the amount
deposited in this matter. The accused could, consequently,
not have
been convicted on a charge of theft.
16.
In the result and for all the aforesaid reasons the conviction was
not according to justice and should be set aside.
17.
In the result, the following order is made:
1.
The conviction and
sentence of the accused is hereby set aside.
2.
If the accused had
paid any amount in consequence of the order of the trial court, the
accused is entitled to repayment of such
amount.
_______________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT
I
agree
_______________________
H.J.
DE VOS
JUDGE
OF THE HIGH COURT