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[2014] ZAGPPHC 22
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Magongoa v S (A1038/2011 â SP44/2011) [2014] ZAGPPHC 22 (19 February 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
(North Gauteng
High Court, Pretoria)
Case
No: A1038/2011 – SP44/2011
DATE:
19 FEBRUARY 2014
In the matter
between:
JOHANNES MALOSE
MAGONGOA
….....................
Appellant
And
THE
STATE
..................................................................
Respondent
Date: 19/2/2014
JUDGMENT
DE KLERK AJ
[1] The present
appeal was noted by the Appellant against his conviction and sentence
in the Regional Court Pretoria on the charge
of murder.
[2] The Appellant
pleaded not guilty on the charge.
[3] The Appellant
relied on a defence of “non-pathological criminal incapacity”.
Consequently the Appellant was referred
for psychiatric evaluation in
terms of Sections 77 and 78 of the Criminal Procedure Act.
[4] The Appellant
admitted that the cause of death, as recorded in the post mortem
report, was a stab to the neck.
[5] The Appellant
admitted during his testimony that he inflicted the wound to the neck
of the deceased who was his wife. In this
regard the Appellant
testified as follows: “While we were busy scuffling, I was in
possession of a knife, then we were rolling
scuffling on the ground,
then the time her head reached the side of my hand where the knife
was I pulled that knife and that knife
was already in her neck and
cut her neck… on the neck it was accident. I did not mean to
stab her.”
[6] The Magistrate
in his judgment accepted the Appellant’s version that he found
the deceased in their room in the company
of another man. The
Magistrate however rejected the Appellant’s version that the
stab wound to the neck was an accident.
In this regard the Magistrate
remarked as follows in his judgment: “It is simply not
reasonably possibly true if you look
at all the wounds together that
it could have been by accident. The accused’s explanation of
the head moving towards the
knife and then ended up in the neck, is
simply according to me not it is just inherent improbably it cannot
be reasonably possibly
true as a result of such a movement that such
a gaping wound will appear in the neck of the deceased. This is a
deep big stab
wound it is not just... I cannot imagine for one
moment how that would have been inflicted by the action described by
the accused.”
[7] According to the
psychiatric report which was handed into Court as an exhibit, the
Appellant at the time of the alleged offence,
did not suffer from a
mental disorder or a mental defect that affected his ability to
distinguish between the rightful or wrongful
nature of his conduct.
[8] Consequently the
Appellant was convicted on the charge and sentenced to 10 years
imprisonment.
[9] Leave to appeal
was granted in respect of the conviction as well as the sentence.
[10] On 14 May 2012,
when the appeal first came before this Court, Ledwaba J and Louw AJ
ordered that the record of the proceedings
be properly reconstructed
on or before 16 August 2012 and postponed the matter sine die.
[11] The missing
parts of the record are the evidence of Dr Gauche, Kate Madiba and
Linkie Madiba.
[12] On 18 June 2013
the Magistrate, Prosecutor and the Appellant’s legal
representative endeavoured to reconstruct the missing
parts of the
record. The evidence could not be reconstructed.
[13] The Magistrate
with regard to the testimony of Kate and Linkie Madiba stated that he
had summarised their evidence in his judgment
and that the
credibility of their evidence was not challenged during
cross-examination.
[14] The Magistrate
submitted that their evidence was not of a material nature and did
not take the case further with regard to
the aspects which are in
dispute.
[15] Same was
summarised as follows: “On that particular evening the accused
arrived at their premises, apparently he sat
there briefly with them
which is outside their place. He then went to his room and after a
few minutes (2 to 3 minutes) they heard
the deceased crying and was
shouting for some help at that stage. The witness Linkie Madiba went
out to investigate. She found
the accused blocking the door. She
could not see whether the deceased was inside or not. She then
subsequently returned to her
house and just after that everything was
quiet. Apparently the accused also left and they phoned the police.
They also went and
investigated but they could not open the door as
it was locked and they waited for the police but they never arrived…”
[16] The Magistrate
with regard to the testimony of Dr Gauche stated that he merely
confirmed the testimony of Dr Plomp and De Wet
and that his evidence
was accordingly also not of a material nature.
[17] The State
Prosecutor and the accused’s legal representative were given
the opportunity to comment but they had no objection.
[18] The proceedings
were transcribed and forms part of the record.
[19] The Appeal is
now again before the Court.
[20] As formulated
in the heads of argument which were delivered on the Appellant’s
behalf, he now contends that his conviction
should be set aside
because the record of the trial proceedings is incomplete and
attempts to reconstruct it proved futile.
[21] The Appellant
contends that “further due to the nature of the defence raised
by the Appellant without the evidence of
Kate and Linkie Madiba, the
Appeal Court does not have the adequate record of proceedings before
itself to enable it to consider
and decide the appeal matter”.
[22] In support of
the Appellant’s argument reference is made to the decision of S
v Sebothe and Others
2006 (2) SACR 1
T. I am of the view that same is
distinguishable from this case. In casu only a portion of the record
had gone missing.
[23] The other case
referred to by the Appellant to wit S v Zondi 2003 (2) SA RC 227 W
does not support the Appellant’s contention
that the conviction
should be set aside because of the incomplete record.
[24] It was held in
the Zondi case in this regard that “an appeal does not
necessarily require consideration of a complete
record of the entire
proceedings in the Court a quo, but merely such a part thereof as may
be required to enable the Appellant
Tribunal to properly consider the
particular grounds of appeal in the context of the trial
proceedings”.
[25] The State, in
its heads of argument, submits that the trial record is sufficient
for the matter to be adjudicated upon.
[26] In S v S
1995
(2) SACR 420
T the Court remarked that the test in these cases was
whether the record was materially correct and complete and that this
question
had to be answered in the context of the case in question
and not in vacuo. The question of whether a defect was material in
an
appeal depended on the issues in dispute on appeal as determined
by the notice of appeal.
The Court held
further that an accused convicted in a Magistrate’s Court had a
right of appeal which could not be frustrated
by the State’s
defective recording of the evidence where it was clear that the
missing portions contained material evidence
which could not be
reconstructed, and the parties could not solve the problem by means
of appropriate admissions, the proceedings
had to be set aside…
the Court remarked that it was not inclined to set aside the
proceedings, on the basis of mere speculation
that the parts of the
record in the instant case marked “inaudible” possibly
contained answers which strengthened the
Appellant’s case and
that an indication to the effect should be contained in the record
itself or in an affidavit made by
the accused or his legal
representative. ”
[27] The Grounds of
Appeal were set out as follows by the Appellant:
“
A. AD
CONVICTION:
1. The learned
Magistrate erred in finding that the Applicant had the intention to
kill the deceased.
2. The learned
Magistrate erred in finding that the Applicant intentionally
inflicted the wound that caused the death of the deceased.
3. The learned
Magistrate erred in finding that the only reasonable deduction from
the circumstantial evidence was that the Applicant
intentionally
caused the death of the deceased.
4. The learned
Magistrate erred in rejecting the version of the Applicant in the
absence of contradictory evidence.”
[29] The Appellant,
as is evident from the Grounds of Appeal, did not persist with his
defence of “non pathological criminal
incapacity”.
[30] The evidence of
Linkie and Kate Madiba were not material to the grounds of appeal
namely that the Appellant did not intentionally
inflicted the wound
that caused the deceased death and that the Magistrate erred in
rejecting the version of the Appellant. The
Court has already
accepted his version of the presence in the room of a third party.
[31] I am satisfied
that the missing evidence is not as such to affect the accused’s
defence in any material way to his prejudice.
[32] There is an
acceptable record of the proceedings and the appeal can be considered
on its merits.
[33] On
consideration of the case as recorded and in the light of what was
stated herein before it seems to me clear that the appellant
is
guilty.
[34] There is
furthermore no reason why the Court should interfere with the
sentence imposed by the Magistrate.
[35] In the result,
the conviction and sentence are confirmed.
ISMAIL, J.,
concurred.
Signed at on this
day of 2014.
Judge De Klerk AJ
The Honourable
Judge of the High Court of Pretoria