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[2011] ZAKZPHC 43
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S v Nkutha and Another (R 2267/10) [2011] ZAKZPHC 43 (6 October 2011)
REPORTABLE
IN THE HIGHCOURT OF SOUTH AFRICA
KWAZULU-NATAL, PIETERMARITZBURG
REVIEW NO: R 531/11
CASE NO: R 2267/10
In the matter between:
THE STATE
vs
MSEBENZI WISEMAN NKUTHA and
SIBUSISO ERIC MASHAYA
REVIEW JUDGMENT
Delivered
on:
_________________________________________________________________________
NTSHANGASE J
NDLOVU J
[1] Both accused were, on 8 March 2011, convicted of
assault with intent to do grievous bodily harm at the Magistrate’s
Court,
Madadeni. The assault, according to the complainant’s
evidence, took place on the night of 8 October 2010. The accused No
1 was sentenced to pay a fine of R4 000 or to undergo 12 months’
imprisonment; the accused No 2 was sentenced to pay a fine
of R2 000
or to undergo eight months’ imprisonment.
[2] The case is before me on automatic review in terms
of s 302(1) of the Criminal Procedure Act 51 of 1977 (‘the
Act’).
At the outset it is necessary to point to the omission
from the record of proceedings, of the record of previous
convictions,
SAP 69 in respect of accused No 1 and the review form,
J4 in respect of accused No 2. Both the original and the typed copy
of
the face of the charge sheet, J15 reflect, apparently erroneously,
the ‘date of appointment to the rank of Magistrate’
of
the presiding judicial officer as ‘1/8/2011’. It is
suggested that these shortcomings be rectified before the record
of
proceedings is filed away.
[3] As the proceedings were, in my opinion, clearly not
in accordance with justice and the accused may be prejudiced if the
record
of the proceedings is not forthwith placed before court, such
record is, in terms of the proviso to s 304(2)(a) of the Act, laid
before this court without obtaining the statement of the judicial
officer who presided at the trial. According to the single review
form, J4 submitted in respect of accused No 1, he is in custody. The
accused No 2 may also be in custody.
[4] The record of proceedings reflects several
irregularities. Although the presiding judicial officer explained to
the accused
No 1 his rights after the close of the State case as
including the right to give evidence on oath ‘to tell the court
his
side of the story,’ the court itself rendered the accord of
such right nugatory. By judicial questioning of accused No 1
from
beginning to the end of his testimony, whereafter he was handed over
to the prosecutor to be cross-examined, he was denied
even an attempt
to tender evidence, exculpatory if so desired, in his own words and
in the manner of his choice. It had the effect
of muzzling the
accused who had clearly expressed a desire to tell the court his side
of the story. Even the court’s last
question ‘is that
all?’ would not necessarily be regarded as an invitation to
tell his side of the story in his own
words as the unrepresented
accused would ordinarily understand that question to be one which
enquires whether that is all he wished
to proffer as an answer to the
question earlier posed by the court, to which his last answer
responded.
[5] The accused No 1 sought and was accorded the right
to call a witness. The desired evidence of his witness, Bongani
Peter Nkosi
was lost to the accused when the court again took over
the examination of the witness from beginning to the end of his
testimony,
whereafter the accused’s witness was handed over to
the prosecutor for cross-examination. The accused became no more
and
no less than a passive spectator to the exclusive extensive
examination of his own witness by the court. Needless to say that
the accused also did not re-examine his witness after judicial
questioning as the opportunity to do so was not accorded to him;
nor
was Mr Nkonde, who appeared for the accused No 2, accorded an
opportunity to cross-examine the accused No 1’s witness.
[6] It is instructive to heed the following from the
case of
S v Sigwahla
1967 (4) SA 566
(A) at 568G-H:
‘There are occasions, particularly where a party is
unrepresented when a judicial officer will properly take some part in
the examination of witnesses; but in the main, and as far as is
reasonably possible, he will usually tend to leave the dispute
to the
contestants, interrupting only when it is necessary to clarify some
point in the interests of justice.’
In this case the accused had evinced no stated need for
the court’s interposed ‘assistance’.
[7] While recognising that it is undesirable and
difficult to attempt to set limits within which judicial questioning
should be
confined, the court, in
S v Rall
1982 (1) SA 828
(A)
at 831-832 enjoined for judicial questioning which does not by its
frequency, length, timing, form, tone or contents, defy
the
imperative of the presiding judicial officer being perceived by all
concerned to be impartial and fair, and which does not
preclude him
from ‘detachedly or objectively appreciating and adjudicating
upon issues fought out before him by the litigants’,
and which
also does not intimidate or disconcert an accused or witness so as to
affect his demeanour or credibility. To this,
I venture to add that
the power of the court to examine as conferred by s 167 of the Act
ought not to be exercised to the total
preclusion of the accused from
tendering his desired evidence in his own words or examination of a
witness called by the accused,
as happened in this case. In regard
to the limits within which judicial questioning should occur, the
case of
Yuill v Yuill
1945 P.D. 15
at 20 was cited with
approval in
R v Roopsingh
1956 (4) SA 509
(A) at 514 as
setting out correctly what should be borne in mind by the judge in
the conduct of proceedings over which he is presiding,
in the
following passage which is quoted in part:
‘A judge who observes the demeanour of the witnesses while they
are being examined by counsel has from his detached position
a much
more favourable opportunity of forming a just appreciation than a
judge who himself conducts the examination. If he takes
the latter
course he, so to speak descends into the arena and is liable to have
his vision clouded by the dust of the conflict.
Unconsciously he
deprives himself of the advantage of calm and dispassionate
observation.’
[8] Now where, as happened in this case, the
examination of the accused and his own witness was conducted
exclusively by the presiding
judicial officer, I think that it would
not be proper to hold that the answers of the accused and those of
his witness to the judicial
examination would necessarily embody the
evidence the accused had sought to tender in his defence or to derive
from his witness.
In
R v Nea Hellas (Pty.) Ltd.,
and Theo
1935
TPD 262
, where a magistrate had called a witness after the close of
the defence case without affording the accused an opportunity of
leading
rebutting evidence, Greenberg J said, at 265:
‘I do not think it can possibly be intended that we should
speculate as to what would have happened if the accused had given
his
evidence in reply; namely as to whether he would have been believed
or not.’
I find this to be apposite in the present case.
The court virtually took the conduct of the case of the
accused No 1 out of his hands. Therein lies the prejudice to the
accused
No 1.
[9] The circumstances of the accused No 2 were somewhat
different in this regard. Although he was not spared extensive
questioning
by the court, somewhat out of turn, his position was
ameliorated by the fact that he was legally represented. I say out
of turn
because when Mr Nkonde, his legal representative was
to re-examine the accused No 2, the Court interposed its
questioning
of the accused No 2 which would normally come after
re-examination, the main purpose whereof is to clear up any points
which are
still obscure. This is normally followed by an invitation
to the parties to put questions which might arise from responses to
the court’s questions. See
S v Mseleku
2006 (2) SACR
237(N)
at [59]. The following question by the court even pried into
accused 2’s prospective witness’s version:
‘Actually these three persons that you would like to call, you
want them to testify that they were with you from early in
the
morning until the next day, is that so?’
I think it is fair to regard the following one as
bordering on cross-examination:
‘Now, the point I am trying to drive you to, could it not have
happened that you left these three while you were sleeping,
when you
did so, they were unaware?’
Accused No 1 was not accorded an opportunity to
cross-examine accused No 2 on depositions arising from the court’s
extensive
questioning. Mr Nkonde, probably deliberately, posed no
questions as well. The position of the accused No 2 will be dealt
with
further when the merits in this matter are discussed briefly.
[10] There is another vexing aspect in the proceedings.
The record of proceedings reflects that the accused No 1 elected to
give
evidence on oath but when questioned by the Court testified
without an oath, affirmation or admonition having been administered
to him. This occurred in violation of the peremptory provision in s
162(1) of the Act as, in terms thereof, subject to the provisions
of
sections 163 and 164 of the Act, no person shall be examined as a
witness unless he or she is under oath. It is an irregularity
of a
grave nature.
[11] Now the proceedings in the lower courts are
reviewed for the purpose of establishing whether the results in such
proceedings
were attained in accordance with justice. Regrettably
they were, in the present case, in my view, not attained in
accordance with
justice. The purpose of rules and procedures is to
ensure that an accused person receives a fair trial. The denial of a
fair
trial is a denial of justice, which, in turn, is a failure of
justice. There is a failure of justice where it cannot be held that
a reasonable trial court would inevitably have convicted if there had
been no irregularity. This test brings me to what was stated
in
S
v Moodie
1961 (4) SA 752
(A) at 758G:
‘In an exceptional case, where the irregularity consists of
such a gross departure from established rules of procedure that
the
accused has not been properly tried, this is
per
se
a
failure of justice and it is unnecessary to apply the test of
enquiring whether a reasonable trial court would inevitably have
convicted if there had been no irregularity.’
[12] In my view the irregularities pertaining to the
conduct of proceedings in respect of accused No 1 bring it within the
description
of an exceptional case. In his definition of
‘exceptional’ in the case of
S v
Mohammed
1999 (2) SACR 507
at 515 Comrie J
stated:
‘What appears from these definitions in my opinion is that
‘exceptional’ (‘buitengewoon’) was two
shades
or degrees of meaning. The primary meaning is simply: unusual or
different. The second meaning is: markedly unusual or
specially
different…’
The presiding judicial officer breached the canons of
judicial conduct in respect of the accused No 1 in a most unusual
manner.
[13] The following in
S v Hendricks en ‘n Ander
1995 (1) SACR 37
(C) at 46 would, by description, aptly fit the
nature of the irregularities in the present matter:
‘Na my oordeel is die enigste logiese, en ook billike slotsom
waartoe geraak kan word dat die onreëlmatigheid in die
huidige
saak, om beskuldigde 2 nie onder eed te laat getuig nie, van so ‘n
growwe aard en so strydig met die normale reëls
van die
strafproses is, dat dit
per se
op ‘n regskrenking
neerkom.’
The following, in the same passage is an apposite
statement of the value of the right of an accused who, in the present
matter,
elected but was denied the right to give evidence on oath:
‘Per slot van sake is die beskuldigde se reg om onder eed te
getuig ‘n kern en wesenlike bestanddeel van die
audi alteram
partem
-reël by strafverhore.’
[14] It is a fundamental principle of justice that an
accused person is entitled to a fair trial. It is a right enshrined
in the
Constitution by s 35(3).
1
Incidental thereto is the accused’s right to adduce evidence.
The irregularities which beset this case are, in my view,
of such a
nature that it would be fair to hold, as I do, that in the
circumstances of this case the accused No 1 cannot be said
to have
received a fair trial in accordance with justice or his
constitutional rights.
[15] I think it is also fair to hold, as I do, in
respect of both accused, that by reason of the presiding officer
overly actively
participating in the contest between the parties, his
judicial vision may have been clouded in the dust of the conflict in
the
arena in which he had placed himself, to such an extent that it
may have precluded him from detachedly or objectively appreciating
and adjudicating upon issues being fought out before him by the
litigants and that he consequently paid scant or no regard to the
poor nature of the quality of the evidence of the single witness for
the State, Bheki Selby Khuzwayo, the complainant, in regard
to the
alleged assault. Other than the repeated bald assertion that both
accused stabbed, hit and kicked him, he was utterly unable
to provide
an account of what happened or to exclude that the injuries on the
buttocks described by the doctor as superficial may
not have been
caused by the terrain where he fell and lay until the following
morning. He stated that he had no idea as to what
had caused him to
fall.
[16] In his evidence-in-chief the complainant stated
that on 8 October 2010 he was with both accused at Mbatha’s
house, which
he later corrected to ‘accused No 1’s
house’. They were drinking liquor. The accused later
suggested that
the three of them proceed to a shop in quest for more
liquor. At the shop the accused could not pay for the liquor because
they
had no money; they requested him to pay for the liquor. He
could not do so as he also had no money. They left the shop. They
had parted with the shop owner when they hit him with fists, kicked
and stabbed him. They stabbed him on the buttocks causing
him
injuries which the doctor described as ‘superficial’; and
they hit him ‘all over the body’. His answers
to
questions by the court were marked by an inability to describe the
assault. In one of his answers he ascribed his failure to
describe
what happened to the consumption of liquor. Asked whether anyone
came to his rescue, his answer was:
‘Because we had sadly consumed liquor, well I do not know how
or why they stopped further hitting me.’
Asked whether he was still in his senses to see that the
people who assaulted him were the two accused, he was non-committal
and
vague in his following response:
‘Because I was able to walk on my own, I was still seeing them
and I was able to see that it was them that I was walking
with.’
He testified that he did not know what happened to him
until he was, where he lay, woken up by a certain woman in the
morning.
An ambulance was summoned. It conveyed him to the hospital
where his wounds on the buttocks were sutured.
[17] The accused No 1 under cross-examination and in
answer to the Court’s questions denied that he assaulted the
complainant
and that he was in his company and in the company of the
accused No 2 on the date in question. The accused No 1 stated that
the
complainant had been to his (accused No 1’s) home on that
date. He stated that they drank liquor and he later accompanied
the
complainant up to the gate of his home. The accused No 2 also denied
that he assaulted the complainant and that he was at
any time in the
company of either the complainant or the accused No 1 on the date in
question. It is common cause that both accused
and the complainant
were neighbours. When cross-examined by the accused No 1 about the
time he sustained the injuries as he had
left him at his gate at 8
pm, the complainant’s answer was partly somewhat irrelevant:
‘It seems as if it is a mistake that you dropped me next to my
gate, Well, because I was able to walk past it was you and
the
accused 2 that somewhere hit me and left me along the veldt.’
When it was stated in cross-examination that the accused
No 2 was never in accused No 1’s place where accused No 1 and
the
complainant were drinking, the complainant’s answer was not
incriminatory of accused No 2:
‘Well accused 2 did arrive at my place, but there was nothing
that was important that he did to me, the only thing that he
did was
that he asked me for tobacco or cigarette that he used to ask of me.’
[18] To a question by the court as to how they were
assaulting him, whether they approached him from the front or the
sides he answered:
‘Well they were hitting me anyhow because they were both of
them attacking me.’
When the question was repeated he said:
‘I cannot remember.’
He stated that he ‘had no idea’ when asked
what had caused him to fall down. He did not know whether he fell on
his
face, side or back. He also said that he did not know and had no
idea what surface he fell on when asked whether there was grass
or
fences ‘which pricked (him) on (his) back’ where he lay
and was woken up by a woman on the following day. He also
stated
that he did not know exactly how they stabbed him because he had lost
consciousness. Asked whether he knew who hit him
first he stated
that he did not know.
[19] The only other witness for the State, Mduduzi
Cebekhulu, testified that he was at Soul City Mzansi Store when three
men came
to the shop and from him sought to purchase liquor but did
not have money. They were unknown to him. A suggestive question
followed:
‘And the two accused before Court, were they amongst these
people.’
To this, Cebekhulu’s answer was in the
affirmative. Yet another question which could have been put
differently was posed
to Cebekhulu:
‘Who amongst these three persons was asked to pay for the beer?
Was it the one that was found lying somewhere in the following
morning.’
Cebekhulu said it was the latter. The complainant had
also testified that he was asked to pay. Put properly the question
should
have been
‘
(w)
ho amongst these three persons was
asked to pay for the beer?’
It was important to be circumspect in posing these
questions to this witness as both accused had denied that they had
been to Soul
City Mzansi Store in the company of the complainant on
the date in question.
[20] When Peter Nkosi, the witness for the accused No 1
was questioned by the court, he said that on the date in question he
had
been with accused No 1 and the complainant at accused No 1’s
home. Peter Nkosi left both at accused No 1’s home at
about 8
p.m. Accused No 1 shortly thereafter came to his home, (Peter
Nkosi’s home) and asked for matches, and soon thereafter
left
after he had been given matches. According to Thabani Khumalo, the
witness for the accused No 2, the accused No 2 could not
have been at
Soul City Mzamsi Store at 22h00 as accused No 2 was with him at the
time.
[21] Without indicating the reason for the rejection of
the version of the accused other than to state that the basis of
rejection
is concoction of the version of the defence, the court a
quo
decided:
‘Accused 1, though in agreement with the version of accused 2
namely that he was not with complainant and that therefore
accused 2
could not be involved, is rejected.’
No factual basis is provided for the court’s
conclusion that the version of the defence was concocted. I myself
found none.
The conclusion must necessarily lose its value.
In this case this court would not be justified in
according the findings of the court a quo the weight normally given
to the findings
of a trial court as, in my view, no reasonable trial
court would have rejected the accused’s evidence on the basis
on which
the trial court did in the light of the quality of the
evidence adduced by the State as contradicted by both accused.
[22] The presiding judicial officer made no credibility
findings in the short judgment he delivered. His acceptance of the
complainant’s
version and the rejection of the accuseds’
appears to lie in the following passage of his judgment:
‘Now the question is, complainant who was assaulted on the day
in question, why would he say it was accused 1 and 2 who assaulted
him… Now the question is why he would not be able to see the
people that assaults him.’
This approach appears to have put the onus on the
accused to advance such reasons when no such onus rests on the
accused persons.
It is a fundamental misdirection by the judicial
officer where, as in this case where the State relies on a single
witness who
is contradicted by the accused, a conviction could have
properly followed only if the court had positively found that it
believed
the State witness beyond a reasonable doubt and, to that
extent, had found the defence version to be demonstrably false or
inherently
so improbable as to be rejected as false. See
S
v Munyai
1986 (4) SA 712
(V SC) at 715G.
In all the circumstances, the convictions of the
accused, in my view, cannot stand.
[23] In the result the following order is made:
The convictions and sentences of both accused are set
aside.
__________________
NTSHANGASE J
I agree and it is so ordered:
_________________
GYANDA J
1
Constitution of the Republic of South Africa, 1996 (Act 108 of
1996).