About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2013
>>
[2013] ZAGPPHC 111
|
|
Nkuna v S (A62/2012) [2013] ZAGPPHC 111; 2013 (2) SACR 541 (GNP) (6 May 2013)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF SOUTH
AFRICA)
CASE NO: A62/2012
DATE:06/05/2013
In the matter between:
WILLIAM
NKUNA
…...................................................................................
APPELLANT
V
THE
STATE
...................................................................................................
RESPONDENT
JUDGMENT
RATSHIBVUMO AJ
:
1. Mr. Nkuna, the
appellant, was sentenced to 30 months imprisonment on the 17
th
November 2011 following a conviction by Mokgopong District Court on a
charge of theft. It was alleged that he stole a cell phone
from a
motor vehicle belonging to Ms. Dalene Du Plessis (the complainant).
He appeals against the conviction and the sentence with
the leave of
that court.
2. Two issues arise from
this appeal. Firstly, whether the magistrate’s prior knowledge
of of the appellant’s previous
convictions, obtained during the
bail application in which he presided, precluded him from presiding
in the subsequent trial; secondly,
whether the proper approach was
applied to the State’s circumstantial evidence.
3. During the bail
application before same magistrate who later convicted him, the
appellant disclosed two previous convictions
of theft and an
outstanding case of housebreaking. Bail was refused, after the
magistrate remarked that the appellant had ‘the
tendency to
commit crimes, being a repeat offender (with) previous convictions.’
4. The issue is the
appropriateness of the magistrate to have presided over the trial
under those circumstances. In the ordinary
course, a judicial officer
is not entitled to know of an accused’s previous convictions
until after the conviction.
Sections
89, 197, 211 and 271 of the Criminal Procedure Act
1
are all against the disclosure of previous convictions at any stage
before the conviction of an accused person. Section 211 in
particular
provides,
“
Except
where otherwise expressly provided by this Act or the
Child Justice
Act, 2008
, or
except where the fact of a
previous conviction is an element of any offence with which an
accused is charged, evidence shall not be
admissible at criminal proceedings in respect of
any
offence to prove that an accused at such proceedings had previously
been convicted of
any offence, whether in
the Republic or elsewhere, and no accused, if called as a witness,
shall be asked whether he or she has been so
convicted.
”
5. It is a long standing
practice in our courts that for the judicial officer to be informed
of the previous convictions before
the accused is convicted
constitutes an irregularity that nullifies the proceedings as a
whole. In
S
v Mavuso
2
,
the Appellate Division set aside the conviction and the sentence
because it held that the proceedings were irregular after the
accused
was convicted by a judicial officer who knew his previous
convictions.
3
In
S v
Mdletye
4
,
the High Court did not attach any weight to the fact that the accused
had pleaded guilty to the charge, thereby minimizing the
prejudice.
Once the previous conviction were known to the magistrate during
questioning in terms of section 112 (1) (b) of the
Criminal Procedure
Act, the appeal court found that it constituted irregularity and
thereby nullified everything that followed.
In
S
v Mofokeng and Others
5
,
although the evidence that the accused were guilty of a crime of
housebreaking with the intention to steal and theft was overwhelming,
the knowledge of previous convictions to the magistrate constituted
an irregularity that nullified the proceedings as a whole.
6. In
S
v Bruinders
,
6
it was observed that a judicial officer fails to uphold the
constitution that requires him to apply the law impartially if he
allows his reasoning to be affected by bias.
T
he
appearance of bias
may
be enough to vitiate the trial in whole or in part
.
7
The
very fact that the appellant knew that the magistrate who presided
over the trial knew of his previous convictions, was enough
to create
a reasonable apprehension on his part that the magistrate would not
be impartial. The approach in
Bruinders
8
marked a departure from
Hlati
9
where the court had found no irregularity in a case where the
magistrate proceeded with the trial after she was apprised of the
accused’s previous convictions. I prefer the reasoning of the
court in
Bruinders.
My
respectful view is that once the circumstances create the perception
of bias; a judicial officer becomes disqualified from presiding
any
further. Failure to recuse herself/himself under those circumstances,
renders the proceedings a nullity, irrespective of the
merits of the
case.
10
7. Apart from that,
Hlati
is distinguishable, on the facts, from the present case. First, in
that case, the accused’s previous convictions were disclosed
to
the magistrate after the trial had commenced, when the accused
applied for bail. Second, the magistrate was the sole presiding
officer in a small magisterial district. Finally, the court found
that the evidence against the accused was overwhelming.
8.
Back to the facts of the present case. The magistrate’s lack of
impartiality manifested itself once the appellant was convicted.
The
prosecutor requested a postponement in order to obtain the
appellant’s record of previous convictions (the so called
SAP
69). Without inviting the defence attorney’s response, the
magistrate impatiently demanded to know the reason for the
non-availability of the SAP 69, and directed that two police
officers, whom one was apparently the investigating officer, to be
in
court ‘within 15 minutes’ after the adjournement. On
resumption of the proceedings, the prosecutor was in possesion
of the
SAP 69 form, and read out the appellant’s previous convictions,
which the appellant disputed. Without any indication
that the State
intended proving the previous convictions, the magistrate indicated
his intent to postpone the matter for ‘expert
evidence’,
after which
the accused admitted the previous convictions.
9. From the above, it
seems that the magistrate was instrumental in availing the SAP 69
form, and in ensuring that the appellant
admitted his previous
convictions. Not a single question was asked to establish what the
appellant disputed in the SAP 69 records
or why he changed his mind
almost immediately. In my view, the magistrate’s judgment was
clearly blurred by his prior knowledge
of the appellant’s
previous convictions. His conduct described above, is testimony to
that fact. He should have recused himself,
and his failure to do so,
vitiated the proceedings. On that basis alone, the conviction should
be set aside.
10. Even without the
conclusion reached above, the conviction of the appellant falls to be
set aside on the basis of insuffiency
of the evidence. The accused
was convicted on circumstantial evidence since no one saw him steal
the phone. The complainant testified
that she saw a person running
from the direction of her car when she emerged from a shop. It was
only after observing that her
car had been broken into, and her
cellphone stolen, that she suspected that the person she saw running
was the thief. She dialled
her number, and it was answered by a
person who identified himself as ‘William’ (the
appellant’s name is William).
She reported the matter to the
police, and gave the clothing description of the man she saw running,
since she did not observe
his face. Coincidentally, the police
officer to whom the report was made, remembered seeing a man with
clothes matching those described
by the complainant, earlier that day
at the police station. That person happened to be the appellant. He
also knew where he resided.
The said phone was not recovered.
11. R v Blom
11
laid down the basic requirements for a conviction based on
circumstantial evidence. There are two cardinal rules of logic which
cannot be ignored: first, the inference sought to be drawn must be
consistent with all the proved facts. Secondly, the proved
facts
should be such that they exclude every reasonable inference from them
save the one sought to be drawn. If they do not exclude
other
reasonable inferences, then there must be a doubt whether the
inference sought to be drawn is correct. In the present case,
it
cannot be the only inference that the person seen running by the
complainant was the appellant.
Even
if he was, it cannot be the only inference to be drawn that he was a
person that stole the complainant’s phone. The complainant
herself did not see anything amiss in the man running because he
could have been running just past her car. Inference should not
be
mistaken for speculation.
12
I conclude therefore that the evidence was not sufficient to convict
the appellant.
12. To sum up, the
magistrate should have recused himself from hearing the trial in view
of his knowledge of the appellant’s
previous convictions.
Further to this, the evidence upon which the appellant was convicted
falls short of the basic requirements
of circumstantial evidence laid
down in
Blom
13
case.
13. In the result the
following order is made:
1. The appeal against
the conviction is upheld;
2. The conviction and
the resultant sentence imposed by the trial court are set aside.
_____________________
T.V.
RATSHIBVUMO
ACTING JUDGE OF
THE HIGH COURT
I agree,
_______________________
T.M. MAKGOKA
JUDGE OF THE HIGH
COURT
APPEARANCES
:
DATE HEARD : 18
APRIL 2013
JUDGMENT DELIVERED :
6 MAY 2013
FOR THE APPELLANT :
ADV. O.K. MATSHEGO
INSTRUCTED BY :
PRETORIA JUSTICE CENTRE, PRETORIA
FOR THE RESPONDENT :
ADV J.J JACOBS
INSTRUCTED BY :
DIRECTOR OF PUBLIC PROSECUTIONS, PRETORIA
1
Act 51 of 1977.
2
1087 (3) SA 499
(A).
3
In this case the public prosecutor had asked the
questions to show that the accused knows the dagga by reminding him
of his previous
conviction. This was after the accused had claimed
he did not know dagga.
4
[
2005] JOL 13933
Tk.
5
See unreported judgment, case no. A421/11 by the
Gauteng South, Johannesburg delivered on the 12
th
October 2011.
6
2012 (1) SACR 25
(WCC) at 29
7
S v Roberts
1999
(2) SACR 243
(SCA) at 249.
8
Supra
.
9
In
S v Hlati
2000 (2) SACR 325
(N)
the high court had said the following
“
[e]
vidence
of previous convictions
was
legally irrelevant because of the highly prejudicial
effect
it had on the mind of the trier of fact: the issue was not however
whether knowledge
of
an accused's previous conviction had caused bias on the part of the
presiding officer but
whether
such knowledge had created a perception that he may have been biased
against
the
accused in the trial.
”
10
See
S v Roberts
supra
.
11
1939 AD 188.
12
S v Cooper
1976 (2) SA 875
(T).
13
Supra