About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2015
>>
[2015] ZAFSHC 128
|
|
S v Nketle (100/2015) [2015] ZAFSHC 128 (25 June 2015)
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
FREE
STATE DIVISION, BLOEMFONTEIN
Review
Number: 100/2015
In
the review of:
THE
STATE
and
MOKOENA LOURENS NKETLE
CORAM:
NAIDOO, J et WILLIAMS, AJ
JUDGMENT
BY:
WILLIAMS, AJ
DELIVERED
ON:
25 JUNE 2015
[1]
This is a special review under section 304(4) of Act 51 of 1977, as
requested by the regional magistrate of Bethlehem, PJ Visser.
The
reasons for his request have been set out in a letter of the said
magistrate addressed to the registrar of this high court
dated 1 June
2015.
[2]
The accused has been charged with rape and the matter is currently
part-heard in the regional court sitting at Senekal. On the
20
th
of May 2015 the accused pleaded not guilty to one count of rape, in
contravention of section 3 of Act 32 of 2007. He pleaded that
he in
fact had consensual sex with the complainant. On the first day of
trial the state called the doctor who confirmed that he
did examine
the complainant after a complaint had been made. After the doctor’s
evidence, the matter was postponed for further
trial on 27 May 2015.
[3]
On 27 May 2015 the state led the evidence of the complainant’s
mother, Mrs AM M.. It was the evidence of this witness,
and
particularly the conduct of the defence attorney, Mr Heidtmann, that
forms the basis for the special review and for the request
that
proceedings be set aside.
[4]
Mrs M. testified that she was the mother of the complainant and that
after the alleged rape took place, a meeting was called
between her
family and the family of the accused. To the surprise and
consternation of the learned magistrate, the witness testified
that
Mr Heidtmann had been involved and in fact played a central role in a
subsequent meeting at his own offices. Both the accused
and the
complainant and their respective families had been present. The
matter was discussed by all parties under the guidance
of Mr
Heidtmann as is apparent from the evidence of Mrs M.. I quote the
following verbatim from page 20 and 21 of the record:
Prosecutor:
“
Now on the previous occasion,
the complainant was not here. Do you confirm that you went to the
attorney of the accused to tell
him that the child cannot … or
the daughter cannot come the previous date? You informed the attorney
about her unavailability?
…
Yes,
I did inform
my
attorney.
Who
is you attorney? …
I
see the witness is pointing directly to the attorney sitting next to
Mr. Moseti.
Court:
To defence attorney.”
Thereafter
on page 24 and further after cross-examination and re-examination,
the magistrate questioned the witness as follows:
Court:
“
Ma-am, why did you during your
evidence referred to Mr. Heikman as your attorney?...
Your
Worship from previous time, this attorney who is present at Court had
been helping us whenever we had legal problems.
Were
you a client of his? …
That
is correct.
So
did you ever go to Mr. Heidtmann’s office? …
Yes
I did.
Was
this specific incident with your daughter discussed with Mr.
Heidtmann? …
Yes,
indeed.
When
was that? …
I
forgot the date, but it was on Friday.
And
who was present when you visited their offices? Who was present? Just
yourself or who else? … After the family meeting
I requested
the family to go along with me to that attorney’s office.
So
it was yourself and the family of the accused? … It was
myself, accused’s sister, the accused and the complainant,
yes.”
[5]
During re-examination by Mr Heidtmann he put it to the witness that
he had last acted for her during 2014. She could not recall
as it had
been a long time. He then attempted to persuade the witness that he
had not played any role in the present matter. On
page 27 of the
record the following appears:
“
Now
let us come back to this matter. When you were in my office, can you
recall what I told you? … I do not recall. I am
getting
confused.
Let
me refresh… Is it not so that I told you that I cannot help
you. You must go and see the prosecutor or the police or
the
investigating officer? … No, you help… No you helped
me.
How
did I helped you? … I say you helped me, my things went well
in the previous time, and even now also you helped me by
understanding the peace that is between the families at this present
moment.”
Thereafter,
Mr Heidtmann withdrew as the defence attorney.
[6]
For Mr Heidtmann as an attorney, to have a meeting with complainant
and the accused together with respective families and thereafter
represent the accused in criminal proceedings in the regional court,
amounts to gross misconduct and unethical behaviour. The learned
magistrate was extremely concerned when Mr Heidtmann’s conduct
was exposed and he immediately stopped the proceedings in
order to
have the high court review the matter.
[7]
As such I would propose that the following orders be made:
1.
The entire proceedings
before regional court magistrate PJ Visser under case number
SH49/2014 are set aside.
2.
The trial must begin de
novo before another regional magistrate.
____________________________
A.
WILLIAMS, AJ
I
agree, it is so ordered:
______________________________
S.
NAIDOO, J