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2011
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[2011] ZAFSHC 18
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Tsoeu v S (A206/2008) [2011] ZAFSHC 18 (3 February 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal No. : A206/2008
In
the appeal between:
KAOTA DINGAAN TSOEU
….......................................................
Appellant
and
THE STATE
…...........................................................................
Respondent
CORAM:
MOCUMIE
et
MOLOI, JJ
HEARD
ON:
31 JANUARY 2011
_______________________________________________________
DELIVERED ON:
3
FEBRUARY 2011
APPEAL JUDGMENT
_______________________________________________________
MOCUMIE, J
[1]
The appellant was convicted in the Magistrate Court, Ficksburg, on a
charge of robbery and sentenced to thirty six (36) months
imprisonment on 14 November 2007. During the trial the appellant was
legally represented. He now appeals against his conviction
with leave
of the court
a quo
which leave was granted on 29 November
2007.
[2]
The matter remained in the system without any attention until some
time in 2010 when it was brought before this Court for the
first
time. On that date the appellant had not filed his Heads of Argument.
This Court then postponed it for that reason. It is
not clear on
record why so much delay, a period of three years and a few months,
was caused in processing the appellant’s
matter. Fortunately
the appellant was out on bail pending appeal. However this situation
should not be allowed to happen and persist
in future because not
only is it prejudicial to the accused who are entitled to have their
matters enrolled but such cases also
clog the system unnecessarily.
[3]
Advocate Tshabalala, on behalf of the appellant, attacked the
judgment of the trial court on the following grounds:
3.1
That the trial court erred by finding that robbery was committed
against the complainant by a group of people acting in concert
in
order to achieve a common purpose and that the appellant was part of
that group and
3.2
That the trial court adopted a wrong approach by not accepting the
appellant’s defence as reasonably possibly true.
[4]
In short the State alleged that the two complainants were robbed by
the appellant and a group of people on the night in question.
During
their evidence the state witnesses contradicted each other and were
inconsistent. Their version that they were severely
assaulted and
robbed of a cellphone was highly improbable and inconsistent with
what they described to the court and not supported
by the evidence.
[5]
Advocate Hoffman ,on behalf of the respondent, was constrained to
concede during his oral argument that the State’s case
was
flawed and riddled with improbabilities to the extent that the trial
court should not have rejected the appellant’s defence
which
was in the circumstances of this case more probable than the State’s
case.
[6]
On this basis alone the trial court committed an irregularity of such
material nature which warrants this court to interfere
with the
conviction.
[7]
In the circumstances I make the following order:
ORDER:
The
appeal against conviction and sentence succeeds.
This
order should be brought to the attention of the appellant
immediately.
The
Director of Public Prosecutions, Bloemfontein, is ordered to forward
this appeal to the Centre of Criminal Records for the
preceding
order of the magistrate court to be removed from the appellant’s
records.
_______________
B.C.
MOCUMIE, J
I concur.
______________
K. J. MOLOI, J
On behalf of the
appellant: Adv. L. Tshabalala
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of the
respondent: Adv. R. Hoffman
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN