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[2014] ZAGPPHC 213
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S v Tswai (A229/14, DCA76/2013, 1018) [2014] ZAGPPHC 213 (1 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
HIGH
COURT REF: 1018
CASE
NO: DCA 76/2013
DATE:
1 APRIL 2014
CASE
NO: A229/14
In
the matter between:
THE
STATE
Applicant
and
THABO
STEPHEN TSWAI
Respondent
JUDGMENT
MOTHLE
J
1. This matter came by
way of review and was allocated to Acting Justice Mogotsi in his
chambers for consideration. Judge Mogotsi
referred the case back the
trial Magistrate to comment on queries raised in his letter on 8
November 2013. The Magistrate MN Muhtari
responded to Judge Mogotsi’s
queries in a letter date stamped 18 December 2013. The matter was
then referred to Madam Justice
Kubushi for further consideration in
the absence of Mr Justice Mogotsi. Madam Justice Kubushi then
referred the queries raised
by Mr Justice Mogotsi as well as the
response thereto by the Magistrate, to the Director of Public
Prosecutions, Gauteng Division
Pretoria for their comment.
2. The Deputy Director of
Public Prosecutions, M J Van Vuuren responded on the referral in a
memorandum dated 5 March 2014. In the
absence of both acting Justice
Mogotsi and Madam Justice Kubushi, the matter has been referred to me
for further attention.
3. The four accused being
Thabo Stephen Tswai, Lehutla William Mosotho, Letau Junior Sehlola as
well as Lizo Andile, were all charged
with a crime of theft for which
they stood trial in the Magistrates Court District Nebo. Accused No.4
was not present in Court
and a separation of trials was ordered. All
3 accused conducted their own defence.
4. The State alleged that
on or about 27 February 2013 at or near Vleisboom in the District of
Nebo, the accused did unlawfully
and intentionally steal the
following items, to wit 200 by heavy tile valued at R12.590.00; One x
1,000 L Jo-Jo tank valued at
R1,499.95; one 2500 L tank valued at
R1,989,95. The total value of items being R16,079.90, the property or
in the lawful possession
of Sunny Mogadine or Cashbuild. The accused
pleaded not guilty but at the end of the trial on 18 September 2013
they were found
guilty. Accused No. 1 and 2 were sentenced to a
R6,000.00 fine each or twelve months imprisonment while Accused No 3
was sentenced
to R1.500.00 fine or 3 months imprisonment. All accused
were declared unfit to possess a firearm. The Magistrate ordered that
the
payment of the fines be deferred.
5. According to the
evidence Accused No. 1 and 2 were employed by Cashbuild as security
guards. Accused No. 3 was not known to the
complainant. During the
evening of 3 February 2013, a number of items went missing from the
store. From the charge sheet, a substantial
amount of tiles were
stolen. The value thereof is estimated at R29,362.35. It appears that
the premises were entered through the
roof. The stolen items were
allegedly recovered from the accused. According to the presiding
officer the accused elected to conduct
their own defence. However, by
perusal of the record it emerged that Ms Ndlovu of Legal Aid had at
some stage represented Accused
No. 1. This was never canvassed with
the accused and there is no indication on the record that she
withdrew
6. On reading the record
Mr Acting Justice Mogotsi raised the following queries with the
Magistrate:
6.1.1. “Whether
the Accused were allowed to participate in the amendment of the
charge sheet or not, and if they objected
or not?
6.1.2. Whether the
Accused before the charge was put to them allowed to express their
views about legal representation? From
the record it is evident that
Accused No. 1 wanted legal aid.
6.1.3. Was it not
proper, to explain briefly the provisions of Section 115 of Act 51 of
1977, to the Accused?
6.1.4. Did the
closing of the State case, not amount to a stopping of prosecution?
6.1.5. Were the
accused convicted, on a basis of evidence of witness who was arrested
before or not? Were charges withdrawn,
or was the accused warned in
terms of Section 204 of Act 51 of 1977?
6.1.6. Was it not
proper to hold a trial within a trial I respect of Mr Ramakogoales’
evidence?
6.1.7. Were the
accused made aware of the results of not challenging incriminating
evidence?
6.1.8. Were
contradictions regarding descriptions of the tiles taking into
consideration during the evaluation of evidence?
6.1.9
Is there sufficient evidence to support a conviction?”
7. The Magistrate
responded in a 2-page memorandum to each and every query raised by Mr
Acting Justice Mogotsi as follows:
“
(a)
There was no need for the State to apply (sic) 86 CPA 51/1997. He
changed the annexure to the charge sheet and put the new charge
on
record. The Court felt that it was not necessary for the
accused to participate on (sic) 86 CPA 51/1977 due to the fact
that
the State incorrectly applied it
(b)
It was an oversight on my side. Indeed Accused 1 applied for legal
aid. Ms Ndlovu from Legal
Aid appeared once and there is nowhere in
the record that Accused terminated assistance by Legal Aid
representative.
(c)
Section 115 CPA 51/77 not explained in details, this was an oversight
on my side.
(d)
It is not stopping of prosecution, the State on its own closed its
case after the application
to trace Tau was not granted. The Court
considered the delay in finalising of the matter and the length of
time given to the State
to trace Tau.
(e)
Mr Ramakogoale was not arrested. The matter was not withdrawn against
him; he was not declared
a witness in terms of Section 204 of the
Criminal Code. Accused 4 is the one who is at large and trial was
separated against him.
According to the record, page 16, paragraph
20, was taken by police together with accused persons. According to
the record, page
16, paragraph 20, Ramakogoale was taken by
police together with
accused persons. He narrated the whole story about the tiles.
No, it was not necessary
due to the fact that he admitted having submitted the statement to
the police. He confirmed his signature.
The State applied to declare
him a hostile witness. Application was granted. In the case of
Schwikkard and Van der Merwe, Principles
of Evidence Hi (2009) at
paragraph 12 and 2 and S v Mgcina
2007 (1) SACR 82
(T), the Courts
have made it clear that there are some situations in which the
admissibility of such evidence may properly be decided
without
holding a trial within a trial. One such case was S v Henna &
Another 2006 (2) SACR (3) (SE) at 39. Firstly the parties
had agreed
that the issue was to be dealt with in argument when ail evidence had
been heard, so there was no question of prejudice
to the accused.
Secondly, the facts upon which the issue was to be decided were
common cause as the accused did not testify and
evidence of
constitutional conduct was given by the State witness. The basis was
laid. The Court was satisfied and matter proceeded
without holding
trial within trial. The fundamental rule for cross-examination on the
contents of a document is to have any relevance
and any evidential
weight whatsoever in such a document and the document must be
authenticated.
No, this was an oversight
on my side.
The Court did not notice
any discrepancies with regard to the files.
Is there sufficient
evidence to support a conviction?
There is sufficient
evidence to support a conviction. That is the reason the Court
convicted all three accused persons on a charge
of theft. The
evidence the Court relied on, is the evidence of a single witness, Mr
Ramakogoale. In the case of S v Banana
2000 (2) SACR 1
(Z5C) it was
said that there will need to be an evidential basis for suggesting
that the evidence of the witness may be unreliable.
An evidential
basis does not include mere suggestion by cross-examining counsel, in
essence a common sense approach should be applied.
Where the evidence of a
single witness is corroborated in any way which tends to indicate
that the whole story was not
concocted, the caution
enjoyed may be overcome and acceptance facilitated.
But corroboration is not
essential. Any other feature which increases the confidence of the
Court in the reliability of the single
witness may also overcome the
caution.
However, the Court
concedes that procedural irregularities raised by your office cannot
be justified."
8. The prosecution in its
response points out the following:
8.1
The application for the amendment of the charge sheet prior to the
accused’s pleading
was not necessary.
8.2
The explanation of plea in terms of
Section 115
of the
Criminal
Procedure Act, 51 of 1977
was not explained to the accused in that
they could have chosen to remain silent. Instead, Accused No. 3
elected to offer some
evidence about the incident which could be
construed as an admission. The Magistrate admits that this was an
oversight.
8.3
The Magistrate did not assist the accused during cross- examination
of the State’s
witnesses. He has a duty to do so as was stated
in S v Roothman. S v Johnson, S v Tsaso. Tsaso v Van Wvk
1989 (3) SA
368
(E).
8.4
A trial within a trial should have been conducted to determine the
voluntariness and freeness
of the statement by Joseph Lediga
Ramakogoale. This was not done. Hearsay evidence was also elicited
from this witness. There is
no indication that the Magistrate
disregarded this evidence;
8.5
A declaration of the witness as a hostile witness was not explained
to the accused;
8.6
There was no evidence as to how the accuseds were arrested and the
goods recovered from
them;
8.7
The presiding Magistrate did not inform the accused of their right to
seek a discharge in
terms of
Section 174
of Act 51 of 1977. The
Magistrate did not even consider to grant this discharge mero moto
after the close of the State’s
case. See S v Lubaxa
2001 (2)
SACR 703
(SCA).
9. For reasons stated in
the preceding paragraphs and the authorities cited, with which I
agree, I am of the view that the irregularities
committed by the
Magistrate are so overwhelming that both conviction and sentence
should be set aside.
10. It is indeed correct
that the Magistrate, by his own admission, misdirected himself, in
that the procedural requirements to
advise the unrepresented accused
of their rights were not observed. This material omission vitiates
the entire proceedings such
that it cannot be said that the trial was
conducted in accordance with justice.
11. I am therefore of the
view that both conviction and sentence should be set aside. It is
also a matter of record that the accused
had paid or were paying
fines in lieu of serving prison sentence. They have to be refunded
accordingly.
In the circumstances I
make the following order:
1.
The conviction and sentence imposed by the Magistrate on the accused
is hereby
set aside and substituted by the following:
“
The
accused are found not guilty”.
2.
The accused are to be refunded all the fines they have paid in
respect of this
conviction and sentence;
3.
The order of this Court is antedated to the 18 September 2013.
S
P MOTHLE
Judge
of the High Court of South Africa Gauteng Division, Pretoria.
I Agree
E
JORDAAN
Judge
of the High Court of South Africa Gauteng Division, Pretoria
Date:
26 March 2014.