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[2015] ZAGPPHC 240
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Mosele v S (A351/2014) [2015] ZAGPPHC 240 (29 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO:
A351/2014
DATE: 29 APRIL
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
ELVIS LERATO
MOSELE
...............................................................................................
APPELLANT
and
THE
STATE
.....................................................................................................................
RESPONDENT
JUDGMENT
HEARD ON: 16
APRIL 2015
JUDGMENT ON: 29
APRIL 2015
TSATSI, AJ
INTRODUCTION
1.
These were appeal proceedings. The appellant was tried in the
Magistrate Court of Bethal, on a charge contravening the provisions
of section 1(1) (a) read with sections 1 (1) A, 1(2) and 2 of the
Trespass Act 6 of 1959 (“the Act”), read with
section 250
(1) (d) of the
Criminal Procedure Act No 51 of 1977
. The appellant
pleaded not guilty but was found guilty as charged. He was given a
fine of R2000.00 (Two Thousand Rand) or two years
imprisonment,
R1000.00 (One Thousand Rand) thereof was suspended for a period of
three years. The appeal against the conviction
and sentence are with
leave of the court
a quo.
The
respondent supported the conviction and sentence.
2. The grounds of
appeal on behalf of the appellant were as follows:
As regards
conviction:
2.1
The court
a quo
erred
in giving more emphasis on the evidence of the state witness who
could not prove that he was duly appointed to be the person
in charge
of the test ground.
2.2
The court
a quo
erred
in disregarding the evidence of the appellant who testified that on
the day in question he did have permission of Mr Mtshali,
the person
in control of the license department and that he was not training his
students but he was there for the purpose of testing
his students.
2.3
The court
a quo
erred
in not considering the document produced by the appellant as Exhibit
“B” which contained the names of the students.
As regards
sentence:
2.4
The court
a quo
erred
in giving the appellant a fine of R 2000.00 (Two Thousand Rand), R
1000.00 (One Thousand Rand) thereof suspended for three
years on
condition that the appellant does not commit such an offence within
the said period. The submission made on behalf of
the appellant was
that the sentence evoked a sense of shock, considering the personal
circumstances of the appellant that he is
a first offender and that
his previous conviction of assault of 1994 should have been
disregarded by the court.
3.
The
events giving rise to the charges upon which the appellant was
convicted and sentenced are summarized thus: Mr Hendrick Johannes
Olivier (“Mr Olivier”) testified as follows: On 28
November 201B he was working as a Senior Station Manager at the
Covan
Mbeki Fire Brigade. His duties involved supervising the Fire Brigade
Station and the testing grounds of Govan Mbeki Municipality.
The
appellant’s private driving school called Rise and Shine used
the premises to train his trainees for driver’s license.
According to him the
appellant contravened the Circulars from the Director - General of
the Department of Transport of Mpumalanga,
which provides for the
prohibition of the use of the testing grounds by driving schools.
There were circulars placed at the front
door of the licensing office
prohibiting the use of the testing grounds by the driving schools and
private persons for own use.
4. Mr Olivier
further told the court that Mr Mtshali did not have authority to give
permission to the appellant’s driving
school to practice on the
premises. Under cross examination Mr Olivier told the court that Mr
Mtshali was the first to be employed
at the testing ground which
means Mr Olivier was employed after Mr Mtshali. He further told the
court that Mr Mtshali was the one
who was in charge of the testing
ground. Mr Olivier was asked by the appellant’s legal
representative what time was it when
he found the appellant’s
car parked at the premises. His answer was that it was 7h30. He
further told the court that Mr Mtshali
starts work at 8hOO. The legal
representative for the appellant challenged Mr Olivier and asked him
how many trainees were on the
premises and being trained by the
appellant. Mr Olivier’s response was that he saw only one
trainee in the truck. At the
time the appellant was talking to Mr
Mtshali. The appellant’s legal representative wanted to know
why did Mr Olivier not
obtain the name of the trainee that he saw in
the appellant’s truck. His answer was that it was not the
trainee that was
being charged it was the owner of the driving
school. The appellant’s legal representative contended that the
appellant was
allowed to enter the premises for the purpose of
testing his trainees.
5.
The
appellant took the stand and told the court that it was correct that
he parked at the premises on the day in question. He told
the court
that Mr Mtshali was the person in charge of the premises and
testified that Mr Mtshali gave permission for his truck
to be on the
premises. According to the appellant one of his learner drivers was
booked for the test the same morning his truck
was parked on the
premises. He was not practising at the test ground, he was there for
the purpose of a test for his leaner driver.
The appellant’s
version was that he did not see the circulars preventing the use of
testing grounds when the truck was booked
for a test. He told the
court that he told Mr Olivier that he was not practising at the test
ground. He further told Mr Olivier
that he was there for the purpose
of a test for his learner drivers.
6. Under cross
examination the appellant told the court that the license office
opens at 7hOO. The prosecutor disagreed with the
appellant and told
the court that the licence office opens at 8hOO. The appellant
further told the court that he could not read
English. He said that
he was good in Zulu but not in English. This was the reason why he
did not see the notices that prohibited
practicing on the premises.
The prosecutor challenged the appellant and asked him how he ran his
driving school business if he
could not read English. The appellant
answered by saying that he had people who assisted him in running the
business. The prosecutor
confronted the appellant and told him that
Mr Olivier did explain the contents of the notices to him in previous
occasions and
explained why the appellant was not permitted to
practice on the premises. The appellant insisted that he was not good
in English
but in Zulu.
7. At the end of the
states’ case the appellant applied in terms of
Section 174
of
the
Criminal Procedure Act 51 of 1977
for the discharge which the
court refused.
8.
The issue in this matter was whether or not the appellant committed
an offense of trespassing in terms of section
1
(1)
of the Act read with
section
250
(1)
(d)
of the
Criminal Procedure Act
51
of
1977
.
The other issue was whether
or not the sentence handed down against the appellant was
appropriate.
9. The legal
representative for the appellant submitted that the person in charge
of the testing section for the driver’s
licence was Mr Mtshali
not Mr Olivier. This was based on the fact that Mr Mtshali was
employed as the Chief Testing Officer. In
addition the appellant has
been in possession of the driving school business permit and he was
allowed to let his students be tested
for either a learner’s or
driver’s licences. His further submission was that the
appellant was dealing with Mr Mtshali
on a daily basis. Even though
Mr Mtshali was an important witness the state failed to call him as a
witness to testify against
the appellant. According to the
appellant’s legal representative this was an indication that
the appellant was entitled to
an acquittal.
10. Counsel for the
respondent echoed the words of the appellant’s legal
representative that although Mr Mtshali was a vital
witness he was
not called by either the state or the defence. He submitted that
there was overwhelming evidence against the appellant.
He further
submitted that the appellant failed to discharge the reverse onus of
proving that he does have permission to be on the
premises
11. Section 1(1) of
the Trespass Act 6 of 1959 (“the Act”) provides that:
“
(1) Any
person who without the permission-
(a) of the
lawful occupier of any iand or any building or part of a building; or
(b) of the
owner or person in charge of any land or any building or part of a
building that is not lawfully occupied by any person,
enters or is
upon such land or enters or is in such building or part of a
building, shall be guilty of an offence unless he has
lawful reason
to enter or be upon such land or enter or be in such building or part
of a building"
12.
Section 250
(1)
(d) of the
Criminal Procedure Act provides
that:
“
(f)
if a person would commit an offence if he-.
.........
(d)
was present at or entered any placer without being the holder of a
licence, permit, permission or other authority or qualification
(in
this section referred to as the
“
necessary authority
”
),
an accused shall, at criminal proceedings upon a charge that he
committed such an offence, be deemed not to have been the holder
of
the necessary authority, unless the contrary is proved.”
13. The phrase
“unless the contrary is proved” means that the
presumption may be rebutted by proof on a balance of probabilities
1
.
Absent such proof the court may be obliged to convict the accused
person despite the existence of reasonable doubt. The presumption
falls within the provision of “reverse onus”, which had
been held to be unconstitutional by the Constitutional Court.
14.The
constitutionality of the onus placed on an accused person was
discussed in the case of:
S
v Singo
[2002] ZACC 10
;
2002 (2) SACR 160
(CC).
The
court found that the reverse onus was inconsistent with the
right
to
be presumed innocent.
It
is penal in nature and offends against the constitutional right of an
accused to a fair trial (sections 35(B) of the Constitution
of the
Republic of South Africa Act, 108 of 1996 [the Constitution]). The
section 36 limitation of rights clause of the Constitution
does not
save it.
15.
The
Constitutional Court held in
S
v Zuma
1995(2)
SA 642 (CC); 1995(4) BCLR 401 (CC)
at
para 33, that the presumption of innocence is not new to our legal
system. In that case the court was concerned with the
constitutionality
of
section 217(1)
(b) (ii) of the
Criminal
Procedure Act, 51 of 1977
which also contained a reverse onus
provision. In interpreting section 25(3)(c) of the Constitution,
Kentridge AJ, found the Canadian
cases to be of particular assistance
since the Canadian Charter of Rights and Freedoms is similarly
structured to chapter 3 of
our Constitution. Section 11 (d) of the
Canadian Charter of Rights and freedoms provides that the accused
person
:
“to
be presumed innocent until proven guilty according to law in a fair
and public hearing by an independent and impartial
tribunal”
16.The
Canadian Supreme Court has on numerous occasions held that section
11(d) will be breached where a presumption has the effect
that an
accused person may be convicted while a reasonable doubt exists as to
his or her guilt.
2
17.
In
Nbopane
1962 (4)
SA 279
(O) 280 C,
the
court held that the state bears the onus of proof beyond a reasonable
doubt in such cases of trespass and section 35 (3) (h)
of the
Constitution protects the appellant because his right to remain
silent will be violated (We were referred to this case by
the
appellant’s legal representative).
18.
The principle adopted in the case of
Badenhorst
1960 (3) SA 563
(A) 566 and Brown
1978 (1) SA 305
(NC) 308
C
,
was that for the accused to be
charged with the crime of trespassing he must have entered the
premises unlawfully and remained therein
without the consent or the
permission of the lawful occupier or the owner (we were referred to
this case by the appellant’s
legal representative).
19.
In interpreting and applying the provisions of s. 1 of the Act the
court in
R v Venter
1961
CO SA 363
(T),
held that a charge of trespass under the Act cannot succeed unless
there is
mensrea
The
form of culpability required for the crime is intention,
in
casuthe,
appellant told the
court that he was given permission by Mr Mtshali to park his truck on
the premises. He also told the court that
he could not read English
therefore he could not understand the contents of the circulars
prohibiting practising on the premises.
However, at the material time
the circular prohibiting practicing did not affect him as he was not
practising on the premises.
20. A reverse onus
clause is a provision within a statute that shifts the burden of
proof on the individual specified to disprove
an element of a
definition of a crime. As stated above the reverse onus is
unconstitutional and should not have been relied on
by the court a
quo. My view is that there was merit in the appeal against the
conviction. There was as a result a need for this
court to interfere
with the conviction.
21.
Having considered the totality of the evidence, I am of the view that
the appellant’s version is reasonably possibly true.
The
appellant has shown that he had no intention to contravene the
provisions of the Act. Therefore the court
a quo
should
have concluded that the necessary
mens rea
was
absent on the part of the appellant. The appellant was there to have
one of his trainees to undergo a test As a result the appellant
should have been acquitted of all the charges.
22. Since the
conviction could not stand, the appeal against the sentence should
succeed.
23. In the result
the appeal against the conviction and sentence should succeed.
ORDER
24.
I would therefore propose the following order:
24.1
The conviction and sentence in respect of the charge of trespassing
imposed by the Court
a quo
are
set aside.
E.K. Tsatsi
ACTING JUDGE OF
THE HIGH COURT
I agree and it is
so ordered,
E.M. Kubushi
JUDGE OF THE HIGH
COURT
Appmramm
On behalf of the
appellant: MR T.P MOLOTO
Instructed by:
T.P HOLOTO
COMPANY INC. ATTORNEYS
Pretoria
On behalf of the
respondent: Adv E.V SIHLANGU
Instructed by:
DIRECTOR OF
PUBLIC PROSECUTIONS
Presidential
Building
Pretoria
1
See
R v Olivier
1959 (4) SA 145
(D) at 145H.
2
See
R v Oakes 26 DLR (4
th
)
200 (1986) at 222; S v Bhulwana; S v Gwadiso (CCT 12/95;CCTll/95
[1995] ZACC).