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[2013] ZAFSHC 109
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S v Mokokolo (10/2013) [2013] ZAFSHC 109 (30 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 10/2013
In the review between:-
THE STATE
and
BOITUMELO GRANT
MOKOKOLO
_____________________________________________________
CORAM:
LEKALE, J
et
PHALATSI, AJ
_____________________________________________________
JUDGMENT BY:
PHALATSI, AJ
_____________________________________________________
DELIVERED ON:
30 MAY 2013
_____________________________________________________
[1] This is an automatic
review in terms of section 302 of the Criminal Procedure Act, 51 of
1977 (“the CPA”). The accused
was charged with
“
contravention
of section 59(4) read with section 89 of Act 93 of 1996, in that upon
or about 5 March 2012 and at or near N1, a public
road in the
district of Brandfort, the accused unlawfully exceeded the speed
limit of 120 km/h by driving the vehicle with registration
number
CNH918FS at 171 km/h”.
[2] During the hearing of
the matter on 12 July 2012, the accused, who was unrepresented,
pleaded guilty to the charge.
[3] The court proceeded
to ask questions to determine whether the accused admitted all the
elements of the crime.
[4] The court entered a
plea of not guilty after questioning the accused, in that the accused
did not admit that he had intention
to commit the crime.
[5] Immediately
thereafter, the State closed its case without calling any witnesses.
[6] The court then
advised the accused as follows, after informing him that the State
had closed its case:
“
At this
stage you have the following rights that this Court has to inform you
of. You can testify under oath, you can call witnesses.
Now from the
facts, which this Court has already advised you shall stand as proof
of the facts thereof. This would mean that the
state is relieved from
proving such allegations against you, and that in terms of the
Criminal Procedure Act those
aspects that are not in dispute shall be
accepted as proved. You also have the right to remain silent and
elect not to say anything.”
[7] The accused elected
to testify and was thereafter convicted as charged.
[8] The case is subject
to automatic review and the Reviewing Judge before whom the matter
first served, requested the magistrate
to give reasons for the
conviction, with specific reference to the following:
“
- Did the
accused have a case to meet after the State closed its case?
Was there a duty on the magistrate to
acquit him after the State closed its case?
Was there a duty on the magistrate to
explain to him that he may apply for his discharge in terms of
section 174
of Act 51 of 1977?”
[9] 9.1. The learned
magistrate responded thereto by, firstly, quoting from the record
what transpired during examination in terms
of section 112(1)(b). The
only relevant part for the purpose of this judgment, is the
following:
“
Court: Was
it your intention to drive at 171km/h?
Accused: No.”
9.2. The plea of not
guilty was then recorded in terms of section 113, pursuant to this
response.
9.3.
The court quoted the case of
S
v Mphateng en ‘n Ander
1981
(3) SA 511
(T), where it was stated that although it does not often
happen in practice, it is possible that the accused can be convicted
solely
on what he/she has said during plea explanation.
9.4.
She further quoted, with approval, it would seem, the case of
S
v Goitsemang
1997
(1) SACR 99
(O), where the court per Wright J, said the following at
page 103A:
“
Dit is
duidelik uit die omstandighede van die onderhawige geval dat die
Staatsaanklaer nie in 'n posisie was om enige sinvolle
getuienis
aan te bied wat lig sou werp op die beskuldigde se gemoedstoestand of
besef van die onregmatigheid van sy optrede ten
tyde van die neem van
die skaap nie.”
9.5. Based on the
abovementioned cases, the learned magistrate comes to the following
conclusions and I quote:
“
The aspect
that was in dispute pertained to the accused’s own state of
mind and understanding. The accused was the only one
who could shed
insight on this aspect since it would have been impossible for the
state to lead such evidence in rebuttal.
By placing his intention in dispute,
the accused had a
duty
to lead evidence as to what happened
and what he believed. If the accused does not give a credible
explanation of his psychological
disposition, knowledge of
wrongfullness and intention may be inferred.”
My
emphasis.
9.6. It is trite that the
State must prove the guilt of the accused beyond reasonable doubt.
This means that the State must prove
each and every element of the
crime that the accused is charged with, beyond reasonable doubt,
failing which, the conviction cannot
stand.
[10] The finding by the
magistrate that where the accused places his intention in dispute,
he/she has a
duty
to lead evidence as to what happened and
what he/she believed, is not only against, but is also a danger to
our whole criminal
justice system and
juris prudence
.
[11] In
S v Lubaxa
2001 (2) SACR 703
(SCA) the court, dealing with applications in terms
of
section 174
of the
Criminal Procedure Act, held
that if there is
no possibility of a conviction other than if the accused enters the
witness box and incriminates himself, a failure
to discharge an
accused in these circumstances would be a breach of his/her rights
guaranteed by the Constitution.
[12] In
S v Nyanga
2004 (1) SACR 198
(C) at 201, the court held that if the court is
satisfied that the admissions adequately cover
all
the
elements of the offence, the court is entitled to convict the accused
on the charge to which he pleaded guilty.
[13] On the question as
to whether the accused had a case to meet after the State had closed
its case, it is clear from the record
that the State had failed to
prove the element that had been put in dispute by the accused, being
intention.
[14] This simply means
that the State had failed to prove
all
the elements of the
offence against the accused beyond reasonable doubt. I have already
found that there was no duty on the accused
to lead evidence to prove
or negate intention and the accused, therefore, had no case to meet
after the State closed its case.
[15] The two other
aspects of the query directed to the trial court are, in my opinion,
two sides of the same coin, and can therefore
be dealt with together.
[16] The response of the
learned magistrate is as follows, and I align myself with the
sentiments expressed:
“
The accused
should, in appropriate cases, be advised of his/her right to apply
for his/her discharge at the conclusion of the State
case;
S
v Kester
1996 (1) SACR 461
(B). The option of applying for a discharge at the
close of the prosecution case must be explained to an accused when
he/she is
unrepresented and has no case to answer. To refrain from
doing so and to advise the accused that he/she may testify or remain
silent
is to imply that he/she has a case to answer, thus misleading
him/her. In such circumstances the judicial officer should discharge
the accused
meromotu
.
(
S
v Nzimande
1993 (2) SACR 218
(N).)
[18] I, therefore, find
that the learned magistrate erred in convicting the accused as
charged. Her reliance on the evidence of
the accused to prove
intention was an irregularity of such a gross nature that it vitiates
the proceedings insofar as the accused’s
constitutional right
against self-incrimination was violated thereby.
[19] In the light of the
above, the order of the magistrate is set aside and replaced with the
following;
“
The
accused is found
not
guilty
and discharged.”
The money paid in respect
of the fine shall be refunded to the accused within a reasonable
time.
_________________
N.W. PHALATSI, AJ
I concur.
_____________
L.J. LEKALE, J
/spieterse