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[2012] ZANCHC 22
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S v Sebusi and Another (KAP 217/2007) [2012] ZANCHC 22 (13 April 2012)
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IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE HIGH
COURT, KIMBERLEY
CASE NO: KAP 217/2007
HEARD: 12/09/2011
DELIVERED: 13 /04/2012
In the matter
between:
JOSEPH THAMI LESEGO
SEBUSI
…..................................
1
ST
APPELLANT
KELEBOGILE VIOLA
SEBUSI
…......................................
2
ND
APPELLANT
and
THE STATE
…...................................................................
RESPONDENT
CORAM: PAKATI, AJ
et
HUGHES-MADONDO, AJ
JUDGMENT
HUGHES-MADONDO, AJ
The appellants, Joseph
ThamiLesegoSebusi and Kelebogile Viola Sebusi, were charged with one
count of fraud. On 01 August 2007and
in the Regional court of
Kimberley they were convicted. On 05 November 2007 they wereeach
sentenced to a fine of six thousand
rand or twelve months
imprisonment and a further twelve months imprisonment wholly
suspended for a period of five years. Leave
to appeal against their
conviction was granted by the court below.
The fraud charge
preferred was that on 04 October 2004 the appellants submitted false
claims to EvetteTheron of ABSA Brokers that
a break-in occurred at
42 Heerengracht, a Guest House, being the property of the
appellants. The State intended to prove thatthere
had been no
break-in at 42 Heerengracht.In fact the break-in had occurred at
Unit CMulke Close, 66 GerritSchoutenlaan, Royldene,
the residence of
the appellants, on 02 October 2004. Therefore theappellantswere not
entitled to claim and receive the sum of
R82 989.30 from the
insurance.
The State in their
heads of argument aptly summarise the appellants grounds of appeal
along these lines:
The appellants had
insured the premises Mulke Close C, GerritSchoutenlaan under
Outsurance Insurance Company, at the time the
housebreaking was
committed on the 2
nd
October 2004. They
therefore had no reason to misrepresent the insurance company S A
Eagle by saying that the housebreaking was
actually committed at
number 42 Heerengracht Street.
That the first
appellant handed suspects of the said housebreaking to the police
and in so doing, he was running the risk of the
said suspects
revealing the address where the housebreaking was actually
committed. This clearly showed that the appellants had
no intention
to defraud the insurance company.
That a negative
inference should have been drawn from the State’s failure to
call Constable Berries, one of the police officers,
who went to the
scene.
That the evidence
of the fingerprint expert, Inspector Scheepers was unsatisfactory
and contradicted that of Constable Segami.
That Mr Young, the
insurance assessor, had a personal grudge against the second
appellant. Furthermore that Mr Young went overboard
in his
investigations which involved taking statements from the police
officers.
That the appellants
were prejudiced in their defence by the State’s failure to
furnish them with contents of the case docket(Cas
1300/2004) and
were further prejudiced when the first appellant was cross-examined
with regard to the statements that came from
the said docket.
I intend to deal
withwhat I consider to be the most crucial ground, that is
(f)
above. This groundhighlights one of the fundamental rights in
the Constitution of South Africa, that is, the right to a fair
trial.
If it is found that indeed, the appellants did not have a
fair trial and this had a causal impact on the verdict pronounced,
then the entire proceedings would have been tainted. The appellants
would be entitled to theiracquittal.
During
cross-examination of the first appellant, the Stateproducedthe
docket the contents of whichhad not been presented to the
appellants
nor their representatives before the trial commenced. The docket,Cas
1300/2004, related to a break-in that had occurred
at the
appellants’ neighbour’s premises, Unit D, Mulke Close,
66 GerritSchoutenlaan.
Inspector Scheepers,a
witness for the State, testified that his initial encounter with the
appellants was when he came to uplift
fingerprints, at the
appellants’ home in Mulke Close, after the break-in had taken
place on 03 October 2004. However, the
appellants’ evidence
differed from Scheepers’s.The first appellant said he had met
Scheepers in December 2004, when
he attended Mulke Close, 66
GerritSchoutenlaan. This was in relation to the break-in that had
occurred at the appellants’
neighbour’s premises. The
presentation of the docket then came to the fore.
The encounter is
recorded at page 167 lines 11 to 19 of the record:
“
Aanklaer
:
So U seInspecteurScheepers, as hy se dat hy die 3de dag van Oktober
2004 by GerritSchoutenlaan 66 was, vir u en u vrou daar gekry
het, se
u hy praat‘n leuendaaroor?
Sebusi
:
Ja, hy vertel n leuen.
Aanklaer
:
Wat sal rede weeswaarom hy ‘n leuendaaroorvertel?
Sebusi:
Ek
weet nie. Ek weet nie.
Aanklaer:
U ken hom van geen kant af nie?
Sebusi:
Ek weet nie, maar hy is ‘n polisie wat ook paar van die
mense wat by die Wetgewer werk, wat probeer het om my daar uit te
haal en hulle vriende is ook polisie. En hulle is baiegroot in die
polisie.”
The State’s
attitude towardthe aforesaid evidence was thatthe first appellant
was “
just making up stories
”. The first appellant
was adamant that Scheepers was lying to the court.He goes on to say
that when he first encountered
Scheepers he was requestedto sign a
blank card, which he did. He did so because Scheeperssaid this
wouldalleviate him from the
task of looking for the first appellant
later on in the investigations.
In the face of the
preceding scenario and the strenuous objection by the appellants’
representative to the presentation
of the docket,the court below
ruled that the State could question the first appellant on the
content thereof.
What was elicited
through cross-examinationfrom the contents of the docket is that the
fingerprint cards of this docketwere not
signed by the first
appellant, but rather by S Cronje Junior. In addition, the officer
who was responsible for the correlation
of the fingerprints was not
Scheepers but rather an Inspector Mbatha.Mbatha was never called to
verify the documents in this
docket, neither was S Cronje Junior.
In essence the entire
exercise was to discredit the first appellant as regards him having
signed a fingerprint card with Scheepers
in relation to his
neighbour’s break-in. To this end reference is made to page
211of the record, lines 12 to 15:“
Aanklaer
:...Ek
se vir u- ek stel dit aan u, by 58D, GerritSchoutenlaan, Mulke Close
C, waar daar ingebreeek was op die 26ste Desember
2004 by u
buurmense, u het nie geteken vir die vingerafdrukke nie.”
Sebusi:
Edelbare,
ek dra kennis dat ek slegdokumentegeteken het wat niks gehad het nie
en ek het dit ook aan die Hof meegedeel gister....”
(Sebusi’sfound
at page 212 of record, lines 19 to 21).
In the analysis of the
evidence, it is noted that the magistraterelied on the credibility
of the witnesses as a major factor in
reaching his decision and in
weighing up the State’s case against the appellants’. I
refer to page 285 of the record,
lines 18 of the judgment:
“
Die
Hof kyk ook naGetuies se houding en optrede in getuiebank.”
And lines 23 and 24,
further on page 286 lines 1 and 2:
“
En
ekhaal aan, ‘the effect of ...in assessing credibility is a
matter of judgment and common sense. But it must be remembered
that
truthfulness of a witness can rarely be determined by demeanour alone
without regard of other factors
.’”
The magistrate goes on
to mention that he was impressed by the State witnesses and the
evidence they adduced. In contrast, he
was not impressed by the
appellants’ evidence, especially that of the first appellant.
He states that the first appellant’s
evidence was “not
good” and he illustrates his displeasure as follows:
“
Sommigeverduidelikings
van Beskuldigde 1 om die minste te se was absurd. Hy
tekenvolgenshomselfvorms sonder dat hy weet wat aangaanomdat
die
Polisie hom versoek het om vinnig te teken.”
Ironically, the
evidence that the magistrate voices his displeasure in respect of is
the same evidence which he had allowed the
first appellant to be
cross-examined on. Even in light of the fact that the appellants did
not have sight of the docket nor had
they had the opportunity to
adequately prepare with their counsel concerning the contents
thereof.
At the hearing of this
case, counsel for the appellants argued that, by the magistrate
allowing the presentation of this evidence
in the manner in which it
was done,constituted a gross irregularity which amounts to
appellants not having had a fair trial.
The State on the other
hand, submitted that the magistrate was correct when he ruled that
the first appellant could be cross-examined
on the contents of
docket as this was not prejudicial to the appellants.
The State further,
submitted that the documents in question were only used to discredit
the first appellant’s version that
Inspector Scheepers
attended the house break-in case of the appellants’ neighbour
in December 2004. The State argued that
the documents were made
available, during the lunch recess, to the defence whilst appellant
was already under cross-examination.
Lastly, that the documents “do
not touch the core aspect of the fraud” being the charge
preferred.
It is trite that
section 35 (3) of the Constitution of South Africa dictates that the
appellants are entitled to a fair trial.
This section reads as
follows:
“
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice
.”
It stands to reason thata criminal trial should be conducted in
accordance with the notions of basic fairness and justice.
See
S
v ZUMA AND OTHERS
[1995] ZACC 1
;
1995 (1) SACR 568
(CC)
at
579
h
,
paragraph 16.
The presentation of
evidence to the first appellant for the first time during
cross-examination, to my mind, amounts to a trial
by ambush and as
such violates the appellants’ right to a fair trial. This
amounts to agross irregularity
per se.
Even so, the crucial
issue is whether that irregularity was fundamental and had an
adverse impact on the trial and influenced
the verdict reached.
In
S v SHIKUNGA
1997 (2) SACR 470
(NmSC) at 484B-D, Mahomad CJ
said that:
“
It
would appear to me that the test that is proposed by ourcommon law is
adequate in relation to both constitutional and non-constitutional
errors. Where the irregularity is so fundamental that it can be said
that in effect there was no trial at all, the conviction should
be
set aside. Where one is dealing with an irregularity of a less severe
nature then, depending on the impact of the irregularity
on the
verdict, the conviction should either stand or be substituted with an
acquittal on the merits. Essentially the question
that one is asking
in respect of constitutional and non-constitutional irregularities
is
whether
the verdict has been tainted by such irregularity
.”
My emphasis.
I am of the view that,
as the magistrate took into account the credibility of the witnesses
in his analysis of the evidence and
the fact that this
considerationeventually led to the conclusion reached, as to whose
version to accept and who’s to reject.
It is evident that the
irregularity was such that it had a causal impact on the verdict to
the prejudice of the appellants.
The argument by the
State that the evidence did not form part of the core aspect to
prove the offence of fraud is not the enquiry
that has to be
conducted. The enquiryis not whether the irregularity has an effect
on proving the charge preferred but, rather,
whether that irregular
evidence has influenced or had a causal impact on the verdict
reached.
Having said that it is
imperative to cite HeherAJA in
S v CHABALALA
2003 (1) SACR 134
(SCA)
at 139 para 15,“
The correct approach is to weigh
up all the elements which point towards the guilt of the accused
against all those which are
indicative of his innocence, taking
proper account of inherent strengths and weaknesses, probabilities
and improbabilities on
both sides and, having done so, to decide
whether the balance weighs so heavily in favour of the State as to
exclude any reasonable
doubt about the accused’s guilt. The
result may prove that one scrap of evidence or one defect in the
case for either party
(such as the failure to call a material
witness concerning an identity parade) was decisive but that can
only be an ex post facto
determination and a trial court (and
counsel) should avoid the temptation to latch on to one (apparently)
obvious aspect without
assessing it in the context of the full
picture presented in evidence. Once that approach is applied to the
evidence in the present
matter the solution becomes clear.”
Now if one excludes or
omits the said irregular evidence would the magistrate still have
reached the verdict that he did. This
is the next enquiry to be
made. See
S v MAPUTLE AND ANOTHER
2003 (2) SACR 15(SCA)
paragraph
[15].
[25]The evidence used
to discredit the appellants has been irregular and as such should not
have been allowed to weigh against the
appellants. The
magistratementions that many contradictions exist in the State’s
case. He also points out that the appellants’
problem centredon
the evidence obtained irregularly. On comparison of the two he
concludes that the evidence of the State with
the contradictions and
all was more plausible than the first appellant’s evidence.
Even though there is no evidence to verify
the documents in the
docket that were used to discredit the appellants’ version. It
is as clear that the explanation advanced
by the appellants was not
assessed properly by the court below and was categorised as “not
good” and “absurd”.
I am not convinced
that the explanation advanced by the first appellant can be
discarded as being not reasonability possibly true.
At page 93, line
23 to 25 of the record C A Young, the insurance assessor, stated
that the first appellant informed him that
he had had insurance with
Outsurance. This was when they discussed what insurances the
appellant had taken out over the property
at 42 Heerengracht: “
En
in dieselfde tyd toe hy my kom sien, toe noem hy aan my dat hy
versekering het by Outsurance
.” When Young was asked if he
followed up on this aspect of Outsurance, he responded that it was
not his job to do so. The
magistrate when faced with the evidence as
it stood could not reach a decision beyond a reasonable doubt. This
doubt would be
whether the appellants had claimed that a break-in
occurred at the guest house, as they alleged as opposed to the
State’s
version that it was reported that it took place at
their residential address in Mulke Close.
The appellants are
therefore entitled to the benefit of the doubt.
In the circumstances
the following order is made:
The appeal against
the convictionis successful.
The conviction and
sentence are set aside.
___________________________________
W
HUGHES-MADONDO
ACTING JUDGE
NORTHERN CAPE HIGH
COURT, KIMBERLEY
osts of such procee
I concur
_________________________________
PAKATI
ACTING JUDGE
NORTHERN CAPE HIGH
COURT, KIMBERLEY
On behalf of the Appellant
:
Adv. P.J. HEYMANS
Instructed by TOWEL and
GROENEWALDD
On behalf of the Respondent
:
Adv.R.R. MAKHAGA(Office of the DPP)