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2014
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[2014] ZANCHC 27
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Mofana and Another v S (CA&R101/13) [2014] ZANCHC 27 (28 March 2014)
IN THE HIGH
COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case No: CA&R 101/13
Heard
on: 19-03-2014
Delivered
on: 28-03-2014
In
the matter:
TEBOGO
MOFANA
FIRST APPELLANT
TEBOGO
MOSATA
SECOND APPELLANT
And
THE
STATE
RESPONDENT
Coram:
Lacock J et Phatshoane J
JUDGMENT ON APPEAL
PHATSHOANE
J:
1.
Mr
Tebogo Mofana and Mr Tebogo Mosata, the first and second appellants,
were arraigned before Ms Prinsloo at the Magistrates’
Court for
the district of Kimberley on a charge of theft of a bag with the
contents out of a motor vehicle. They were each sentenced
to three
years imprisonment. With leave of this Court they are before us on
appeal against both convictions and sentences.
2.
At
the trial the state called two witnesses, Constable Nonofo
Modisamongwe and Mr Bernadus William Roche Matjan, the complainant.
Const Modisamongwe says that in the early hours of the morning of 22
September 2012 he and W/O Lucas Johannes Jacobs noticed the
appellants standing next to a turquoise Toyota Yaris motor vehicle
with registration numbers: Layla NC. When the appellants noticed
them
they ran away. He and W/O Jacobs chased after them in their police
vehicle. In the course of the chase the first appellant
tossed away a
bag. They were caught up with and arrested behind Changes Night Club
in Dunell Street, Kimberley. The two police
officers returned to the
vehicle where they had earlier spotted the appellants standing. They
found that the front left passenger
window of this vehicle was
broken. In an effort to trace the owner of the vehicle, the police
officers shouted out the name on
the vehicle registration plate
“Layla” at the nearby flats where the vehicle was parked.
Two gentlemen approached them.
Mr Matjan identified himself as the
owner of the vehicle. He explained that when he parked his vehicle
its windows were intact
and closed and its doors were locked.
3.
Const
Modisamongwe intimates that there was a pair of tekkies, a wallet
with a drivers’ license and a cellphone charger in
the bag. The
complainant testified that there was also a perfume bottle in the bag
while inside the wallet there were cards and
R350.00 cash.
Nevertheless, the police could not find any cash in the wallet.
4.
The
appellants’ version is that they had been socializing at
Changes Night Club with two ladies, Mpho and Refilwe. They left
the
club accompanied by Refilwe while Mpho remained behind chatting to
someone. Outside the night club they requested Refilwe to
return to
the club to look for Mpho. While they were waiting, two policemen in
a police van accosted them and falsely accused them
of having broken
the window of a motor vehicle. They were searched and arrested.
5.
During
the cross-examination of the first appellant the prosecutor enquired
from him whether he intended to call Refilwe. He responded
positively. At the end of his testimony he closed his case without
calling Refilwe. The second appellant took the stand. After
his
cross-examination the Magistrate enquired from him if Mpho and
Refilwe were present in Court. His response was in the negative.
This
is what appears further on record:
“
Do you intend to call
them?----If the Court want them here, yes
It’s not the Court who wants
anyone, and you?---I can bring them here to testify.
Accused No 1 yesterday said he can
call anyone of them easily by calling them with a phone call. You say
you can call them, that
is why the Court ask whether anyone of you
bring them along today? --- Your worship I was not informed whether
they would be needed
today.
You will not be informed because it is
up to you whether you want to call witnesses for yourself. But let’s
go back to the
event…”
6.
At
the end of the second appellant’s testimony on 04 December 2012
their legal representative requested a postponement so
that he could
call W/O Jacobs, the state witness who was made available to the
defence at the end of the state’s case. W/O
Jacobs was not
readily available due to ill-health. The trial Magistrate granted the
defence a postponement to 10 December 2012
on which day W/O Jacobs
took the stand and, on the contrary, corroborated the state’s
case. At the end of W/O Jacobs’
testimony the defence requested
a further postponement to call Refilwe and Mpho. Counsel for the
defence intimated that his instruction
was that the first appellant
visited Mpho’s home to secure her as a witness but was told
that she went to Upington for the
school holidays and would return on
09 January 2013. At Refilwe’s home he was told that she was in
Barkly West.
7.
The
Magistrate was of the view that on 04 December 2012 when the
appellants testified they had indicated that they were to call
Refilwe and Mpho and on their own account it was easy for them to get
hold of these witnesses. She stated that when the appellants
requested a postponement on 04 December 2012 their intention was to
call W/O Jacobs to testify and not the two ladies. She accused
them
of only enquiring after the availability of these witnesses on the
Thursday before the resumption of the trial and ascribed
it to
delaying tactics. For these reasons the Magistrate refused the
appellants’ application for a further postponement.
Faced with
no option the defence closed the case for the second appellant.
8.
In
her Judgment the Magistrate reasoned that, in respect of the first
appellant, she did not refuse him leave to call his witnesses
because
he closed his case after he had testified. She states that her
decision not to allow a further postponement was because
the
testimony of the two defence witnesses would have come to naught
because the appellants contradicted each other and had called
W/O
Jacobs as a witness who completely corroborated the state’s
case.
9.
The
conviction of the appellants is attacked on various grounds. One such
ground is that the Magistrate denied them the right to
a fair trial
by not affording them an opportunity to call material witnesses to
support their alibi defence. It was contended that
the Magistrate
knew that the trial was conducted during the festive season when one
of these witnesses was on vacation.
10.
It
is a principle of elementary justice that an accused person be
afforded a full opportunity of giving evidence in his own defence
and
of calling such other witnesses as he or she may desire. See
District
Commandant, South African Police, and Another v Murray
1924 AD 13
at 17. In terms of s 35(3)(j) of the Constitution, the
accused has a right to a fair trial which includes the right to
adduce and
challenge evidence. In
S
v Younas
1996 (2) SACR 272
(C) at 274 the Court made the following
pronouncement on the Magistrate’s failure to allow an accused
the right to
call a witness:
“
I do not think that
respondent's request can fairly be described as a delaying tactic. To
me it represented a genuine and understandable
concern on the part of
respondent to adduce the evidence of others to support his own
denials of much of what applicant had said.
The fact that applicant made a good
impression on the court could hardly justify a refusal to give
respondent the opportunity to
adduce countervailing evidence. On the
contrary it would seem to me that in the interests of justice there
should have been all
the more reason to allow the
fullest ventilation of respondent's case.
The fact that the Act envisages a less
rigid and formal procedure than is normally the case cannot be used
as justification for
a denial to a respondent (ie an accused) of his
fundamental right to a fair hearing.
In my view the magistrate's refusal to
allow respondent to call a witness or witnesses resulted in just such
a denial; it constitutes
a gross irregularity in the conduct of the
proceedings. Nor can it be said (cf
s 309(3)
of the
Criminal
Procedure Act 51 of 1977
) that, despite the irregularity, there was
not a failure of justice. In my view, there was. One does not know
what the witness
or witnesses would have said; the further evidence
could have given the lie to applicant and altogether destroyed her
credibility.
It is idle to speculate; respondent
should have been given the chance to call witnesses; the denial to
respondent of the opportunity
to call witnesses was gravely
prejudicial to his case. Justice has clearly miscarried and the
correct course
open to this Court is to set aside the conviction and
sentence and refer the matter back to the magistrate's court.
Ordinarily in these circumstances the
matter would be remitted to the magistrate who has previously heard
it; however he is aware
that respondent has a previous conviction for
a crime of violence, viz robbery, and one cannot exclude the
reasonable possibility
that he may be influenced by this knowledge.
An order will therefore be made for retrial de novo before a
different magistrate.”
See
S v Selemana
1975 (4) SA 908
(T) at 909A-D and authorities cited therein;
S v
Nkambule
1995 (2) SACR 444
(T); and
District Commandant, South
African Police, and Another v Murray
(supra).
11.
The
Magistrate stance that the appellants should have made a firm
decision earlier on during their trial that they intended to call
the
two witnesses cannot be reasonable. It was within the province of the
defence to determine which evidence they wished to put
before the
Court and at what stage. For as long as they do not cause undue
delays or disrupts the proper functioning of the Court
and the
criminal justice system the door to properly prosecute their defence
must not be closed on them. It matters not that the
first appellant
had already closed his case. What matters is that the second
appellant had still not closed his case.
12.
It
remains the obligation of the trial Court to establish the truth and
to evaluate the evidence placed before it or determine its
weight or
cogency. The evidence of the two witnesses which the appellants
intended to call was, in my view, relevant. Evidence
which is
relevant is admissible. In
S
v Trainor
2003 (1) SACR 35
(SCA) at 41b-c para 9 Navsa JA said the
following:
“
A conspectus of all evidence is
required. Evidence that is reliable should be weighed alongside such
as may be found to be false.
Independently verifiable evidence, if
any, should be weighed to see if it supports any of the evidence
tendered. In considering
whether evidence is reliable, the quality of
the evidence must of necessity be evaluated, as must corroborative
evidence, if any.
Evidence, of course, must be evaluated against the
onus on any particular issue or in respect of the case in its
entirety.”
13.
I
am of the view that the denial by the Magistrate to afford the
appellants the right to call their witnesses is a misdirection
which
led to a failure of justice and vitiates the proceedings.
14.
This
is not a case where the trail Magistrate would be dispassionate
enough to deal with the issues as she has assessed the merits,
convicted the appellants, and is also now privy to their previous
convictions. To my mind, the sensible course to follow is the
commencement of the retrial
de
novo
before a different Magistrate.
In the result:
Order:
1.
The
conviction and sentence are set aside.
2.
The case is
remitted to the Magistrates’ Court, Kimberley, for retrial
de
novo
before a different Magistrate.
M.V.
PHATSHOANE
JUDGE
NORTHERN
CAPE HIGH COURT
I
concur:
H.J.
LACOCK
JUDGE
NORTHERN
CAPE HIGH COURT
On behalf of the Appellants
Ms N.M. Mazibukwana
Instructed by
Kimberley Justice Centre
On behalf of the State
Adv T. Kelaotswe
Instructed by
Director of Public Prosecutions