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
>>
2012
>>
[2012] ZAFSHC 64
|
|
S v Masekwa and Another (377/2011) [2012] ZAFSHC 64 (29 March 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 377/2011
In
the review between:
THE
STATE
versus
SIMON
SUPING MASEKWA
.......................................
FIRST
ACCUSED
ZACHARIA
TSIETSI PITSO
…................................
SECOND ACCUSED
_____________________________________________________
CORAM:
KRUGER, J
et
NAIDOO, AJ
_____________________________________________________
JUDGMENT BY:
NAIDOO, AJ
_____________________________________________________
DELIVERED ON:
29 MARCH 2012
REVIEW JUDGMENT
_____________________________________________________
[1] This is a review
which came before this court in terms of section 302(1) of the
Criminal Procedure Act 51 of 1977 (“the
CPA”). In this
matter the accused were charged with Robbery, read with the
provisions of
section 51(2)
of the
Criminal Law Amendment Act 105 of
1997
. They were convicted as charged on 12 September 2011. Accused 1
was sentenced to two years’ imprisonment, while accused 2
was
sentenced to eighteen (18) months’ imprisonment. Both accused
were unrepresented in this matter.
[2] The magistrate was
requested to correct and complete the record, and furnish reasons for
his decision. He furnished a lengthy
response, which I will deal with
where necessary.
[3] The facts briefly are
that the complainant, Dawid Pheelo Snymes had left a tavern called
Mopathe Tavern (Mopathe) and was on
his way to another tavern called
Lee’s Tavern. As he reached the door of Lee’s Tavern, he
was accosted by four men,
two of whom were the two accused before
court. The latter were armed with knives. Accused 1 stabbed him on
his head and accused
2 and the other two men searched his pockets and
removed his wallet which contained R130,00. The light of the tavern,
according
to the complainant, provided illumination outside the
tavern. He sustained some injuries which were stitched. The
complainant’s
further evidence was that when he left Mopathe
the accused were seated in the tavern, drinking, and, when he left,
they followed
him.
[4] Accused 1 denied any
knowledge of the incident. He alleges that he and accused two were
drinking at Mophate’s when they
were joined by two other
people. These latter two people advised the two accused that they had
a problem with someone and had stabbed
him outside Lee’s
Tavern. It also emerged from the evidence of accused 1 that earlier
that same day the complainant was in
the company of the two accused
and the two other men who joined them at a tavern called Las Vegas
where they were all drinking.
The following day he and accused 2 were
at the Las Vegas tavern again and he saw the complainant again, but
did not know it was
he who was stabbed the previous night. He and
accused 2 were arrested and after his arrest he learned that it was
the complainant
who had in fact been stabbed.
[5] The version of
accused 2 was similar to that of accused 1. He also testified that
when he and accused 1 were seated at Las Vegas
tavern the following
day, the complainant’s friends arrived and asked why their (the
accused’s) friend Nzala had stabbed
the complainant. He did not
answer but told them to ask accused 1. Prior to this he was gambling
at another place and saw the complainant
who asked him for a
cigarette. They shared the cigarette after it was lit. Thereafter he
went to Las Vegas tavern.
[6] Accused 2 called two
witnesses, Henry Tshikila (Tshikila) and Moses Tsubane Tau (Tau).
Tshikila’s evidence was that on
the Friday evening he met a
person called Sipe at Lee’s Tavern and this person asked where
are his brothers. He said he was
looking for them. Sipe then started
slapping him. He became angry and retaliated by picking up a beer
bottle (which he described
as a “dumpy bottle”) and
hitting this person with it. He thereafter ran away, but Sipe, who
gave chase, kept falling
down as he was drunk.
[7] Tau testified that he
arrived at Mopathe and soon after that he received a call from his
girlfriend to say she was at Lee’s
tavern and requested him to
go and fetch her as she was afraid to walk alone. He left Mopathe and
was followed by Tshikila, who
accompanied him to Lee’s tavern.
When they arrived at Lee’s tavern, they met a person there. He
left Tshikila outside
with this person and went into the tavern. When
he came out again, he saw Tshikila stabbing the person that he left
him with. They
then returned to the tavern with Tau’s
girlfriend.
[8] The magistrate was
requested to attend to reconstructing the record, as there is hardly
a page in the record which does not
reflect many instances where the
evidence was “indistinct”. In his response, the
magistrate indicates that he did attend
to such reconstruction where
the recording is audible. While some effort appears to have been made
in this regard, the record is,
however, to a large extent the same as
it previously was. This is a very unsatisfactory situation and the
presiding officer should
always take care to ensure that a proper
record is placed before the Reviewing Judge.
[9] I deal now with the
evidence before the court. The complainant was a single witness,
while four witnesses testified on behalf
of the defence. It is common
cause that
the complainant and the
two accused are known to each other
the two witnesses for
the defence know the accused
the two accused, the two
defence witnesses and the complainant were in each other’s
company at Las Vegas tavern during the
course of the day on Friday
12 August 2011, where they were all drinking.
Later that same evening
they had all visited Mopathe Tavern.
The two accused
continued to drink at Mopathe Tavern.
[10] The two accused deny
any involvement in the attack on and robbery of the complainant,
their version being that they were at
Mopathe when their two friends
arrived and advised that Tshikila had stabbed someone. It was only
the next day that they had learned
that it was the complainant who
was stabbed. No evidence was specifically led regarding the state of
sobriety of either the two
accused or the complainant. However,
Tshikila mentioned that the person he stabbed was so drunk that when
he gave chase after Tshikila
stabbed him, he kept falling down.
[11] The magistrate was
asked why he preferred the version of the complainant over that of
the accused and defence witnesses, given
that the complainant was a
single witness whose evidence was that he had been drinking. The
magistrate’s response was that
“The court did not believe
their story and that of the witnesses because that was a made- up
story. Their story was so contradictory
that the court could not
accept as the truth. The complainant was firm with is evidence and
did not contradict himself he spoke
the truth of what happened on
that day therefore his evidence was accepted and that of the accused
rejected even though he was
a single witness”. No reasons were
given as to why the magistrate was of the view that the version of
the accused and witnesses
was “a made-up story”.
[12] On the complainant’s
own version he had been drinking during the course of the day. I find
his evidence that he went
to Mopathe’s tavern and did not drink
there somewhat improbable. He advanced no other reason for his visit
to Mopathe. I
am inclined to believe that at the time that he was
stabbed and robbed, he was in fact intoxicated. He says four people
accosted
him, while the version of the defence witnesses is that the
altercation happened between Tshikila and the complainant. It is
common
cause that the four people named by the complainant were in
fact together, in the company of the complainant, for the better part
of the day. It is rather improbable that Tshikila would admit to
stabbing the complainant, and run the risk of himself being arrested.
It is true that there were some discrepancies in the versions as told
by Tshikila and Tau, particularly Tau’s evidence that
his
girlfriend called him shortly after he had arrived at Mopathe,
requesting that he fetch her at Lee’s Tavern. Neither
Tshikila
nor the two accused mentioned this or that Tshikila and Tau returned
to the tavern with Tau’s girlfriend. There
also appeared to be
differences in the versions of the two accused and that of the two
defence witnesses with regard to who left
Mopathe’s first.
While that is so, it is significant that all four did not leave
together.
[13] The complainant
alleges that he slapped his assailants when he was attacked and that
this repelled the attack on him and he
ran away. Tshikila’s
evidence is that the complainant slapped him, which led to his
stabbing the complainant, and thereafter
the complainant chased him
as he ran away. There is nothing in the evidence led by the state to
gainsay Tshikila’s evidence,
yet the magistrate appears to have
made up his mind that he, as well as Tau are lying. To my mind, it
seems very probable that
the complainant’s state of inebriation
prevented him from properly identifying his attackers or even from
having a proper
recollection of what in fact happened to him. That
coupled with the fact that the light from Lee’s tavern provided
the illumination
outside the tavern may well have contributed to the
complainant being mistaken about the identity of his attackers,
albeit that
the accused were both known to him prior to the incident.
[14] An identifying
witness must be not only be honest but he must also be trustworthy
(see
S v Mehlape
1963 (2) SA 29
(A)
). In the case of
R v
Shekelele and Another 1953(1) SA 636 (T) at 638 F-G
, the court
remarked that honest but mistaken identification frequently causes
gross injustices. To avoid such injustices, the court
expressed the
view that in all cases that turn on identification of an alleged
offender by a witness, the greatest care should
be taken to test the
evidence. A bald statement that the accused was the person who
committed the offence was not enough. If answers
to relevant
questions about the alleged culprit’s physique, complexion,
peculiar features and apparel, are not properly interrogated,
it can
leave the door wide open for the reasonable possibility of a big
mistake. See also
S v Charzen and Another
2006 (2) SACR 143
(SCA)
at 149 G-I.
[15] In the present
matter the complainant’s bald statement that the two accused
were part of a group of four that attacked
him was accepted without
further interrogation. The possibility that there may be some truth
to the versions of the two accused
was not explored at all. In my
view the magistrate’s failure to do so amounts to a
misdirection. I am aware of the contradictions
in the evidence of the
two defence witnesses, but hold the view that when weighed against
the circumstances of the case, they do
not justify complete rejection
of the defence versions. I am, consequently, of the view that, in
spite of the differences and contradictions
between some aspects of
the versions of the two accused, and the evidence of the two defence
witnesses, their versions are reasonably
possibly true.
[16] Where an accused is
unrepresented, it is the duty of the court to assist such an accused,
especially during cross-examination.
In the present matter, this was
not done, and consequently, the versions of both accused were not
pertinently put to the complainant.
The magistrate then attempted to
“cross-examine” the complainant, and in his response to
the queries raised said
“
the court put questions to
the complainant , as to whether he was not at Las Vegas, and he
admitted having been there, though he
said he did not see the
accused. In my view, I think the court tried to put the version of
the accused to the complainant”.
I do not
agree. This is clearly not what is envisaged in the concept of the
court’s assistance of the accused. The magistrate
appears to be
aware of this, as he referred to the case of
S
v Sebatana 1983(1) 809 (O) at page 812 G-H.
The
dictum of the learned judge Malherbe AJ (as he then was) is
translated in the Headnote as follows:
“
Experience
has repeatedly taught that, particularly in the case of illiterate
and untutored Black accused, they may put a few irrelevant
questions
to a State witness, or no questions at all, and then subsequently
give evidence which conflicts with that of the State
witness in
material respects. This may be the result of ignorance about the true
nature and purpose of cross-examination, notwithstanding
an
explanation by the magistrate of the accused’s “rights”
in that connection. The presiding officer in such
a case has a duty
to assist the accused in presenting his defence by way of
cross-examination by, for example, expressly asking
him whether he
agrees with each material allegation made against him by a State
witness. In this way it should in most instances
rapidly become clear
which evidence is disputed, and the presiding officer can himself put
the necessary question or contention
to the State witness. This would
at least give the accused the impression that he is being fairly
treated during the trial.
Reliance
upon an accused’s failure to cross-examine may, in such
circumstances, be unfair and unjust.”
[17] The magistrate
clearly did not comply with the procedure envisaged in the Sebatana
case, and merely attempted to get onto the
record the complainant’s
denial of certain aspects of the versions of the two accused, which
were elicited in their rather
superficial cross-examination of the
complainant. This coupled with what, in my view, amounted to an
undesirable descension into
the arena by the magistrate raises
questions as to the fairness of the trial.
[18] Reference to the
record (pages 22-25) indicates that the manner in which the
magistrate questioned accused 1 is more akin to
cross-examination
than an attempt to obtain clarity on certain issues. Similarly
reference to pages 29 to 33, the magistrate’s
questioning of
accused 2 reveals a similar trend. In addition, it appears from the
record that there was a degree of pressure being
brought to bear on
the respective accused persons, which may well have had the effect of
intimidating them. Questioning of the
defence witnesses by the
magistrate was conducted in similar vein, and the tone of the
questions by the magistrate suggested that
he did not believe the
witnesses. In this regard refer to pages 37 -39 of the record in
respect of the questioning of Tshikila
and pages 50 -55 in respect of
Tau. In my view the magistrate fell far short of maintaining
impartiality in this matter. In this
regard, I refer to the
guidelines set out in
S v Le Grange 2009(1) SACR 125 (SCA).
See also
S V Mseleku
and Others 2006(2) SACR 237 (N).
[19] In the
circumstances, I am of the view that the convictions and sentences in
this matter cannot be sustained. And make the
following order:
a. The convictions and
sentences in respect of the two accused are hereby set aside;
b. The order of the trial
court is accordingly set aside and replaced with the following:
Both accused are found
not guilty and discharged.
_____________
S. NAIDOO, AJ
I agree.
____________
A
KRUGER, J