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[2016] ZAGPPHC 318
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S v Chauke (A277/16) [2016] ZAGPPHC 318 (5 May 2016)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number
:
A277/16
Date
: 5/5/16
Reportable
Of interest to other
judges
Revised
THE STATE V GEORGE
CHAUKE
HIGH COURT REF.
NO.
:128/2016
MAGISTRATE'S SERIAL
NO. :
MAGISTRATE'S CASE
NO. :14/227/16
REVIEW JUDGMENT
PRETORIUS J ,
(1) This matter came
before me in chambers as a special urgent review.
(2) The accused, who was
legally represented, was charged in the Pretoria Magistrate's Court
on 18 February 2016 on one count of
theft. It is alleged that he
stole thirteen padlocks and one packet of mince on 15 November 2015
from Shoprite, Sunnyside.
(3)
He pleaded
not guilty and declined to provide a plea explanation in terms of
section 115 of the
Criminal
Procedure Act.
[1]
He
was convicted on 18 February 2016 by the Magistrate. Upon conviction
the presiding officer transferred the case of the accused
to the
Regional Court for sentence in terms of section 116(1)(a)
of the
Criminal
Procedure
Act.
This
section provides that, if the presiding Magistrate, after conviction
on a plea of not guilty, but before sentence, is of the
opinion that
the crime the accused had been convicted of, is such that it merits
punishment in excess of the jurisdiction of the
Magistrate's Court,
the court must stop proceedings and commit the accused to the
Regional Court having jurisdiction.
(4) It is thus clear that
the Magistrate used the incorrect section of the
Criminal
Procedure Act
when referring the case to the Regional Court for
sentence. It should have been referred to the Regional Court in terms
of section
116(1)(b), after the previous convictions of the accused
was taken into account.
(5) The Regional Court
Magistrate who dealt with the matter submitted it to the High Court
for review due to the fact that she was
of the opinion that the
proceedings in the Magistrate's Court was not in accordance with
justice.
(6) The Regional Court
Magistrate made certain comments regarding whether the proceedings
were in a accordance with justice in the
court a
quo.
She
mentioned that, in the ordinary course of events, she would enquire
from the Magistrate to provide reasons for her convicting
the
accused. The Regional Court Magistrate however decided in this
instance that the record of proceedings speaks for itself and
that it
would only delay proceedings to request reasons from the Magistrate,
before sending it to a Judge in chambers.
(7) I requested the
Director of Public Prosecutions ("DPP") to consider the
record and to provide me with an opinion on
an urgent basis. The
court is indebted to the OPP for submitting an opinion overnight.
(8) The DPP confirmed
that, in his opinion, the proceedings were not in accordance with
justice. The State relied on the evidence
of a single witness, a
security guard at Shoprite in Sunnyside. He testified that he had
seen the accused taking three master locks
from the shelf and put it
into his pocket.
(9) Contrary to his
evidence he had stated in his affidavit that he had seen the accused
taking thirteen master locks and mince
from the shelf and that he had
seen him put it in his pocket.
(10) In his evidence he
did not state that he had seen the accused taking the mince from the
shelf, but only that the mince had
fallen from somewhere when the
accused was apprehended. In the written statement he did not mention
that the mince had fallen from
the accused's clothing or body. The
witness failed to give conclusive evidence as to the ownership of the
mince. It is evident
that there were discrepancies in his evidence.
The accused applied for his discharge in terms of section 174 of the
Criminal Procedure Act
and when this application was refused
the accused closed his case without giving evidence.
(11)
In
S
v Sauls and Others
[2]
,
Diemont
JA dealt with the evidence of a single witness:
"There is no rule of
thumb test or formula to apply when it comes to a consideration of
the credibility of the single witness
(see the remarks of RUMPFF JA
in S v Webber 1971 (3) SA 754 (A) at 758). The trial Judge will weigh
his evidence, will consider
its merits and demerits and, having done
so, will decide whether it is trustworthy and whether, despite the
fact that there are
shortcomings or defects or contradictions in the
testimony, he is satisfied that the truth has been told."
(12)
The
evidence of a single witness must be approached with caution. In this
case there are material discrepancies and contradictions
by the
single witness, the security guard. It is eminently clear that the
witness' evidence and his prior affidavit differ in material
respects. It is also important to note that, according to the
witness, two other security guards saw him apprehending the accused,
but the State failed to call these witnesses. It cannot be said that
the witness' evidence is clear and satisfactory in all material
respects. The
dictum
of
S
v Webber
[3]
set out that the evidence of a single witness must be approached with
caution. In this instance it is clear from the record that
the single
witness' evidence cannot be relied on.
(13)
Section
35(3) of the
Constitution
[4]
provides
that
"every
accused person has
a
right to
a
fair
trial"
which
includes the right
"to
be presumed innocent, to remain silent, and not to testify during the
proceedings"
in
terms of section 35(3)(h). There can be no adverse conclusion reached
due to the accused's choice to not give evidence and to
remain silent
at the close of the State's case.
(14) The prosecution has
to prove the guilt of an accused beyond a reasonable doubt. The OPP
agreed with the Regional Magistrate
that the State has not proved the
case against the accused beyond reasonable doubt and that the
proceedings should be set aside.
(15) The question is
whether this court has the inherent power to set aside the
conviction.
(16)
In
Magistrate
Stutterheim v Mashiya
[5]
Cameron
JA emphasised that higher Courts should only intervene in unconcluded
proceedings in lower courts in exceptional circumstances
"where
grave injustice threatens, and where intervention is necessary to
attain justice".
In
Wild and
Another v Hoffert NO and Others
[6]
Kriegler
J held that
"presiding
officers are duty bound to counteract all manifestations of
unnecessary delay in bringing criminal cases to finality".
(17) This is exactly what
the Regional Court Magistrate had in mind when referring the review
to this court on an urgent basis.
I find that this case is of such a
nature that a grave injustice will result if this court does not deal
with the matter in this
fashion, as the accused is in custody.
(18) This is an
exceptional case where it will be in the interest of justice to
accede to the Regional Court Magistrate's request
to set aside the
proceedings by the inherent power which the court has and applying
the principles as set out in the authorities.
An order was sent
for the immediate release of the accused, before judgment was
delivered.
(19) In the result, the
following order is made:
1. The proceedings to
date in the court a
quo
1n case number 14/227/2016 are
reviewed and set aside.
__________________________
Judge C Pretorius
I agree.
__________________________
Judge D S Molefe
[1]
Act 51 of 1977
[2]
1981 (3)
[3]
1971 (3) SA 754 (A)
[4]
Act 108 of 1996
[5]
2003 (2) SACR 106
(SCA) at paragraph 14
[6]
[1998] ZACC 5
;
1998 (3) SA 695
at paragraph 29