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[2012] ZAGPPHC 43
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Mosehla v S (A75/12) [2012] ZAGPPHC 43 (22 February 2012)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA
Date:
2012-02-22
Case
Number: A75/12
In
the matter between:
MATTHEW
TSHEPO
MOSEHLA
..................................................................................
Appellant
and
THE
STATE
.................................................................................................................
Respondent
JUDGMENT
SOUTHWOOD
J
[1]
On 21 May 2010 the appellant was found guilty of housebreaking with
intent to steal and theft (of 31 chairs belonging to the
International Pentacostal Church) in the Nebo magistrates' court and
on the same day was sentenced to 3 years imprisonment. In
addition, a
suspended sentence of 2 years imprisonment was put into operation
which means that the appellant is presently serving
a sentence of 5
years imprisonment. With the leave of the court, granted on petition,
the appellant appeals against both his conviction
and sentence.
[2]
The appellant was not represented in the court a quo and acts in
person in this appeal."' Despite arrangements having been
made
to bring the appellant to court he did not appear. Nevertheless the
court decided to dispose of the matter in the exercise
of its review
powers in terms of section 304(4) of Act 51 of 1977.
[3]
There was no evidence that the appellant broke into the church of the
International Pentacostal Church and stole the chairs.
The state
obviously relied on the appellant's recent possession of the chairs
(although this was not referred to in the judgment).
It is clear that
a court must exercise caution in applying the so-called doctrine of
recent possession where the stolen property
could easily change hands
- see R v Mandele
1929 CPD 96
at 98; S v Rama
1966 (2) SA 395
(A) at
400; S v Parrow
1973 (1) SA 603
(A) at 604B-E and S v Skweyiya 1984
(4) SA712 (A) at 175C-G.
[4]
The presiding magistrate was obliged to ensure that the appellant
received a fair trial. Where an accused is unrepresented this
places
an additional burden on the presiding judicial officer. In S v
Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO
1989 (3) SA 368
(E)
the full court dealt comprehensively with the role of a judicial
officer at the trial of an undefended accused and the manner
in which
he must act to ensure that justice is done. For present purposes the
following rules are relevant:
(1)
'Before the accused is called upon to plead the presiding judicial
officer is obliged to examine the charge-sheet, ascertain
whether the
essential elements of the alleged offence(s) have been averred with
reasonable clarity and certainty and then give
the accused an
adequate and readily intelligible exposition of the charge(s) against
him. (377E-F);
(2)
'Again, where it is competent for a court to convict an accused of an
offence other than the one alleged in the charge-sheet
a judicial
officer may be obliged to inform an undefended accused of the
competent verdict - e.g. where an undefended accused is
charged with
theft or with housebreaking with intent to steal and theft the
presiding judicial officer should explain to the accused
the
competent verdicts, viz that he may convicted of contravening s 36 or
s 37 of Act 62 of 1955 or of contravening s 1 of Act
50 of 1956
unless the contravention is an alternative charge or the prosecutor
indicates that the state's case is restricted to
the offence/s
alleged in the charge sheet: (377H-J);
(3)
'At all stages of a criminal trial the presiding judicial officer
acts as the guide of the undefended accused. The judicial
officer is
obliged to inform the accused of his basic procedural rights - the
right to cross-examination, the right to testify,
the right to call
witnesses, the right to address the court both on the merits and in
respect of sentence - and in comprehensible
language to explain to
him the purpose and significance of his rights.' (378A-B):
(4)
'During the state case a presiding judicial officer is at times
obliged to assist a floundering undefended accused in his defence.
Where an undefended accused experiences difficulty in
cross-examination the presiding judicial officer is required to
assist him
in (a) formulating his question, (b) clarifying the issues
and (c) properly putting his defence to the state witnesses/
(378C-D);
(5) The judicial officer should assist an undefended
accused whenever he needs assistance in the presentation of his case
and should
protect him from being cross-examined unfairly;
(378J-379A).
[5]
As pointed out in S v Raphatle
1995 (2) SACR 452
(T) at 456-457 it is
of the utmost importance that the presiding magistrate explain to the
accused his right to cross-examine and
how this should be done. The
failure to do so will be a gross departure from the established rules
of procedure and result in a
failure of justice (457c-d). In S v
Tyebela
1989 (2) SA 22
(A) at 32A the court explained how this should
be done:
'Furthermore,
when the first state witness had finished his evidence-in-chief,
there should have been an explanation to the appellant
and his
co-accused as to their right to cross-examine and some indication as
to how they should conduct a cross-examination and
that it was their
duty to put to the state witnesses any points on which they did not
agree with the state witnesses, and to put
their version to the state
witnesses. This was not done until a later stage and then only in a
rough and summary manner as appears
from what follows.'
This
must appear from the record - see S v Daniels en 'n Ander
1983 (3) SA
275
(A) at299G-H.
[6]
It is clear from the record that the presiding magistrate did not
explain to the appellant the purpose of cross-examination
or how he
should conduct a cross-examination. The appellant is obviously not
conversant with the rules of procedure and did not
question the
witnesses in any manner resembling cross-examination. Apart from this
failure, the presiding magistrate failed to
assist the appellant in
regard to other procedural rights. He did not properly explain the
competent verdicts. He did not ensure
that any inadmissible evidence
was excluded. A great deal of hearsay evidence and evidence of
statements made by the accused (which
included evidence of admissions
and even a confession by the appellant) was allowed and clearly must
have influenced the court's
view of the case. All of this evidence
was extremely prejudicial to the appellant. The presiding magistrate
also did not ascertain
the basis of the appellant's defence and was
therefore not able to assist the appellant in presenting his defence.
[7]
In granting the appellant's petition for leave to appeal this court
observed that there was no direct evidence linking the appellant
to
the housebreaking and theft, that although the appellant's possession
of the stolen property was recent this was not referred
to and that
another court may find that the appellant was wrongly convicted and
should have been convicted on another competent
count. As already
pointed out the court a quo did not properly explain the competent
verdicts.
This
meant that the appellant stood trial without knowing what charges he
was facing. Apart from that the court a quo did not consider
what
inference should be drawn from the appellant's possession of the
chairs and it cannot be found that the chairs are not items
which
would easily and quickly change hands.
[8]
Whether or not the appellant was found in possession of stolen
property the appellant did not receive a fair trial and his
conviction and sentence must be set aside.
[9]
As already mentioned the presiding magistrate also brought into
operation a suspended sentence of two years imprisonment (apparently
imposed on 7 August 2007 in case number 150/2006). The presiding
magistrate appears to have done this mero motu as the record (apart
from the J15) is silent in this regard. The state's advocate
correctly observes that the manner in which the court a quo put the
suspended sentence into operation was highly irregular and flawed.
Hiemstra's Criminal Procedure by A Kruger states (at 28-28)
that the
procedure of putting into effect a suspended sentence is a
fully-fledged judicial process and an unrepresented accused
has to be
fully informed about its nature, his rights during the proceedings,
and the orders which are competent. It is a mandatory
prerequisite
that the accused be given an opportunity to make representations
against the putting into operation of the suspended
sentence - see S
v Van Straaten
1971 (4) SA 487
(N) at 488B and S v Payachee
1973 (4)
SA 534
(MC) at 536A. There is no doubt that the procedure is not a
mere formality and requires as much consideration and judicial
discretion
as the imposition of sentence. Clearly this did not happen
in the present case.
[10]
The difficulty which arises in the present case is that the appellant
has been in prison since 21 May 2010 and has served one
year and nine
months and should receive the benefit of that time served. If the
putting into effect of the sentence is reviewed
and set aside, as it
should be, the appellant will not receive this benefit. The state
advocate has pointed out that when exercising
its review powers in
terms of section 304(4) this court is empowered by section
304(2)(c)(vi) to make any order as to the court
seems likely to
promote the ends of justice and that the court should direct that the
period of one year and nine months imprisonment
served by the
appellant between 21 May 2010 and 22 February 2012 (when this
judgment is handed down) is one year and nine months
of the sentence
imposed on 7 August 2007 in case number 150/2006 but which was
suspended. When sentencing the appellant the court
a quo could have
ordered in accordance with section 280(2) of Act 51 of 1977 that the
suspended sentence which it (wrongly) put
into operation be served
first. This suggestion accords with the reasoning behind section 282
of Act 51 of 1977 and I am in agreement
that the order would promote
the ends of justice.
[11]The
following order is made:
In
the exercise of the court's review powers in terms of section 304(4)
read with section 304(2)(c)(vi) of Act 51 of 1977:
(i)
the conviction and sentence for housebreaking with intent
to steal
and theft on 21 May 2010 are reviewed and set
aside;
(ii)
the putting into operation of the suspended sentence of two years
imprisonment imposed on 7 August 2007 in case number 150/2006
by the
Nebo magistrates' court on 21 May 2010 is reviewed and set aside;
(iii)
it is directed in terms of section 304(2)(c)(vi) of Act 51 of 1977
that the period of one year and nine months imprisonment
served by
the appellant, Matthew Tshepo Mosehla, from 21 May 2010 to 22
February 2012, was partial service of the sentence of two
years
imprisonment
wrongly brought into operation by the Nebo
magistrates' court on 21 May 2010;
The
registrar is requested and directed to send a copy of this judgment
with the order to Major General T.J.V. Khunou, Head of the
SAPS
Criminal Record and Crime Scene Management,
Private BagX308,
Pretoria, 0001, so that the criminal record of Matthew Tshepo Mosehla
is amended in accordance with the judgment
and order to reflect that
he has served one year and nine months of the suspended sentence.
B.R.
SOUTHWOOD
JUDGE
OF THE HIGH COURT
I
agree
S.A.M.
BAQWA
ACTING
JUDGE OF THE HIGH COURT
CASE
NO: A75/12
HEARD
ON: 20 February 2012
FOR
THE APPELLANT: NO APPEARANCE
FOR
THE RESPONDENT: ADV. J.J. KOTZE
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 22 February 2012