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
>>
2014
>>
[2014] ZAFSHC 156
|
|
Kotze v S (A19/2014) [2014] ZAFSHC 156 (11 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
No.: A19/2014
In
the matter between:
ARIEL
PERCEVEL KOTZE
…...............................................................................................
Appellant
and
THE
STATE
…........................................................................................................................
Respondent
CORAM:
LEKALE, J
et
JAJI,
AJ
HEARD
ON:
23 JUNE 2014
JUDGMENT
BY:
JAJI, AJ
DELIVERED
ON:
11 SEPTEMBER 2014
[1]
The Appellant, unrepresented at the time, was convicted of assault on
16 April 2013 by the District Court at Welkom. He was,
eventually,
sentenced to thirty six (36) months correctional supervision in terms
of Section 276(i)(h) of the Criminal Procedure
Act 51 of 1977
(as amended). His application for leave to appeal against
conviction and sentence was refused by the
Court
a
quo
on 4 June 2013. The Appellant
was granted petition against conviction and sentence by members of
this court on 31 October
2013. He now comes before us on appeal
against both conviction and sentence.
[2]
The Appellant’s grounds of appeal, amongst others, are the
following:
(i)
The learned
Magistrate committed misdirection by not evaluating the evidence in
totality on merits. She did not make credibility
findings on
the evidence tendered by both the State and defence;
(ii)
The court did
not reject the version of the accused as false and so improbable that
it cannot be accepted;
(iii)
It failed to deal with material contradictions between the
complainant and his witnesses in relation to the circumstances
surrounding the assault and the assault itself; (record page 11,
lines 9 – 11; record page 12, lines 1 – 6) (record
page
58, lines 9 – 14; record page 95, lines 22 – 25; record
page 96, lines 1 – 4);
Regarding
assault itself (record page 12, lines 5 – 6; record page 84,
record page 128, line 12 – 16);
(iv)
It is
therefore submitted in light of the above that the State failed to
prove the guilt of Appellant beyond reasonable doubt and
consequently
conviction herein stands to be set aside.
[3]
Appellant’s grounds of appeal regarding sentence are as
follows:
(i)
the courts of appeal may not interfere with the imposed sentence,
unless it can be shown that the court
a
quo
misdirected itself or that the
sentence imposed is shockingly inappropriate;
(ii)
The personal circumstances of the appellant were recorded in
mitigation of sentence;
(iii)
The court
a quo
failed to properly consider that the sentence imposed curtails the
freedom of movement of the appellant, especially if regard is
had on
the conditions of the sentence;
(iv)
Sentence should be set aside as it is disproportionate to the
offence, the interests of the community and those of the appellant.
[4]
The Respondent supports the conviction and sentence. The following
grounds on merits were submitted:
(i)
The onus in a criminal case is for the State to prove the accused’s
guilt beyond reasonable doubt not every flimsy doubt;
(ii)
The court
a quo
did not make any findings regarding credibility of State and defence
witnesses (record page 188 – page 191);
(iii)
The court
a quo
based it’s judgment on video material seen by the magistrate
(record page 189, line 7 – page 191, line 1);
(iv)
According to the court
a quo
,
video evidence corroborates the version of the complainant even
though the video is inaudible (page 189, line 7 – 14);
(v)
According to the court
a quo
,
evidence of the complainant that Mr Molefi warned the appellant to
leave the complainant alone is to a certain extent corroborated
by
video evidence;
(vi)
It is not clear whether the court
a quo
agreed with the evidence of the complainant regarding what happened
outside Nando’s (record page 191, line 2-5)
“
Outside
Nando’s I do not have much since I did not see anything in the
footage, even if it is there it means my computer is
not eligible to
see anything outside Nando’s since I didn’t see anything
that far.”
(vii)
Even though the state conceded that there were differences in the
evidence of the state witnesses, it was not material to
the extent
that the evidence would be rendered not credible.
(viii)
Looking at the evidence in totality, according to the court
a
quo
it was clear that the appellant was
the person that started the fight;
[5]
The Respondent submitted that even though the court
a
quo
did not mention in the judgment the
seriousness of the offence, interests of the community and personal
circumstances of the appellant,
according to the correctional report
and the fact that the appellant is not a first offender, it was clear
from his past record
that he has anger management problem. In
the circumstances, the respondent supports the sentence.
[6]
At the commencement of the appeal hearing Mr Nkhahle, appearing for
the appellant, successfully requested leave to depart from
the notice
of appeal and his heads of argument to deal with the manner in which
the video footage was dealt with by the trial court.
The State
supported him in that regard with Ms Giorgi also expressing her
reservations on the admissibility of the court’s
observations
on the footage reflected for the first time in the judgment without
the parties having had the opportunity to comment
thereon.
[7]
The record shows that there were issues in relation to the manner the
video was introduced in court. Clearly there were
issues in
dispute regarding what was in the video. (page 28 paragraph 8 –
19) of the record, (page 29 paragraph 10 –
11), (page 31
paragraph 19 – 20). There were issues of procedure of
bringing evidence raised, some by bringing evidence
raised, some by
the court, some related to authenticity of documents, (page 41
paragraphs 4 – 10).
[8]
The appellant clearly raised concerns regarding the video footage.
He was never provided with the video footage beforehand
(page 49,
paragraph 16 – 20) (page 50 paragraph 1 – 5, paragraph 20
– 25). He even stated that if he had
a lawyer, it would
have requested the video and verified it, (page 50 paragraphs 5 –
10).
Indeed,
the court asked the appellant if he wanted to view the video footage
as well. One would have thought that the appellant
as an
accused was entitled to view the evidence to be used against him.
In any event the court advised that it will allow
him opportunity to
view the footage. (page 50, paragraph 15 – 20 of the record).
In
page 51, paragraphs 21 – 25, the appellant apparently had a
chance to view the video footage. It’s not clear
from the
recording where it took place but not in an open court as one would
expect. Clearly from the record, page 54 paragraphs
10 –
19, the video was before court but the laptop did not take the
programme, and obviously could not be viewed. Pages
119 –
123 of the record depict evidence of the video footage viewed by
appellant and witness not the court. At page
119 paragraphs 17
– 22, clearly there is a dispute as to what is in the footage
as against evidence of witness before court.
It
is also clear from the record that at this relevant time, the
magistrate had not viewed the video footage, page 120, paragraphs
23
– 25).
[9]
The admissibility of the video at the relevant time was not
established (page 121, paragraph 15 – 21). At page 133,
paragraph 1 – 10, the witness conceded that he copied the
video, if he could be allowed to play it, he could be able to confirm
if indeed it was the copy he made or not.
Instead
of allowing him to view it, with the leave of the court, it’s
given to the witness to merely look and see it.
Unfortunately,
the laptop was not taking the programme. The video footage was
accepted as evidence and handed in.
Interestingly,
at page 134, page 10 – 25, of the record; particularly in
cross-examination, the appellant questions the manner
the video was
taken. He wanted to know what specific instructions were given
to the witness when the video footage was made.
The answer is
not satisfying. The court at page 136, paragraph 8 – 10,
advised that it will view the footage and will
give it back once it’s
done with it.
[10]
In the first line of the judgment (page 188, paragraph 1), the
magistrate concluded that “this was one of the clear cases”
at page 189, paragraph 7 – 25, to page 190, paragraph 7 –
25. She based her judgment on the video footage that
she
watched and analysed on her own. At page 191, paragraph 2 –
5, she conceded that she did not see some aspects of
the footage
especially outside Nando’s because her computer was not legible
to see those aspects. She went on in spite
of the above to
conclude that the state proved that the version of the appellant was
improbable hence the return of the guilty
verdict.
[11]
Hiemstra’s Criminal Procedure
,
ss221 – 222: on video evidence “
Video
material is real evidence”
. The
court must record its observations. In video recordings the
images are shown to the court and the legal representatives
to give
them the opportunity to question the witness’ observation.
Unfortunately, the record
in casu
does not show the court recording any observations as evidence.
Instead, the appellant raised issues about the video footage.
In the case of
S v Mohase
(1) SACR 185 (O) at 191 (A), it was confirmed that the court must
record its observations.
[12]
In
Newell v Cronje & Another
1985 (4) SA 692
(EC) at 698 A-B, it was held that where a presiding
officer makes personal observation, they must be conveyed to the
parties who
then have the opportunity of agreeing with or challenging
such observations. The magistrate in the case at hand did not
convey
her observations. As correctly pointed out by counsel on both
sides, her observations are only set out in and form the basis
of the judgment (See page 189, paragraph 11 – 25 and page 190,
paragraph 1 – 5).
“
In
the case of Newell (supra) it was held that it was clearly her duty
to convey her views to the parties either by way of placing
such
views formally on record or by questioning the witness. She did
not do so in this case at hand.”
[13]
In the case of
Kruger v Ludick
1947 (3) SA 23
(A), the court in setting the procedure to be adopted
when dealing with real evidence (exhibits, video footage, finger
prints and
inspections in loco) asked, the following:
“
What
precisely is the purpose of and value of a presiding officer’s
observations of ‘real evidence’ whether it
be in respect
of exhibits tendered in court, or of objects or places visited by the
presiding officer in loco? It was held
that such observations
may be for the purpose solely of enabling the presiding officer
‘better to comprehend the testimony’
without adding
anything to the evidence already adduced viva voce by the witness.
It may provide ‘an even more direct
and satisfactory source of
proof.’”
(Wigmore
on evidence).
The
court went on to say
“
Therefore,
presiding officer should, and usually does, record his/her
observations of exhibits tendered in court, or arising from
an
inspection in loco and invites both parties to comment on his
findings. If not, objected to, such findings became evidence
by
consent of the parties, and may properly be relied upon without being
testified to on oath.”
The
record shows no such procedure taken by the court. This all
happens against the backdrop of an unrepresented accused.
The
court ought to have assisted the accused during this process.
[14]
In paragraph F (
supra
)
“
A
presiding officer is usually in no better position than a witness
accurately to form an opinion or impression, … his judicial
training should both enable and cause him to evaluate his own
impressions with care, and to recognize that he may be equally as
fallible as a witness maybe …”
According
to the magistrates impression, “this was one of the clear
cases” (see the record, page 188, paragraph 1 –
5).
The
court continued to note that
“
It
is proper for the presiding officer in evaluating such evidence
(exhibits/inspection/real evidence) to bear in mind that his/her
own
observations have not been and cannot be tested by
cross-examination.”
In
Kruger
,
supra
, the
court concluded that
“
Clearly
from the above authorities, the presiding officer’ s personal
observations must be conveyed to the parties who then
have the
opportunity of agreeing with or challenging such observation.”
The
appellant was never afforded the opportunity, instead he was told of
the evidence seen by the magistrate (see page 189, paragraph
8 –
25 and page 190 – 191 paragraph 5.
[15]
I am of the view that the procedure adopted by the magistrate herein
was irregular. It is clear from the introduction
of video
evidence, footage viewed outside court and the magistrate viewing it
alone to such an extent that she made her own observations.
She
carried on using those observations in her judgment without first
having noted the same and advised the other role players
especially
the appellant. The appellant was never given the opportunity to
respond or challenge the observations. Clearly,
the magistrate
was being subjective when noting her observations.
[16]
In conclusion, I am of the view that the actions by the magistrate
were prejudicial to the appellant to such an extent that
the
prejudice led to a guilty finding. This irregularity can only
be corrected by setting the conviction and sentence aside.
This
was not a clear case as the magistrate believed. The state on
the evidence properly before court could not prove its
case beyond
reasonable doubt. The appellant has contested some aspects of
the video footage as well as the stage at which
it was availed to him
which
prima facie
could
not reasonably possibly afford him a chance to prepare his case
properly and timeously. The state failed to prove its case
against
the appellant.
ORDER
[17]
The appeal succeeds.
[18]
The conviction and sentence are set aside.
___________
N.P.
JAJI, AJ
I
concur.
______________
L.
J. LEKALE, J
On behalf of
Appellant: Adv R.J. Nkhahle
Instructed
by:
MB
Mogotsi Attorney
WELKOM
On
behalf of Respondent: Adv S Giorgi
Instructed
by:
Director:
Public Prosecutions
BLOEMFONTEIN