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[2010] ZAFSHC 40
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S v Leisa [2010] ZAFSHC 40 (22 April 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
Case
No. : 113/2010
In
the case between:-
THE
STATE
and
THABO
JOSEPH LEISA
_______________________________________________________
CORAM:
CILLIé, J
et
JORDAAN,
J
_______________________________________________________
JUDGMENT
BY:
JORDAAN, J
_______________________________________________________
DELIVERED
ON:
22 APRIL 2010
______________________________________________________
[1]
This
matter came to the attention of this Court by means of automatic
review. The accused was charged with assault with intent
to do
grievous bodily harm. The accused chose to conduct his own defence
and pleaded not guilty. In terms of section 115 of the
Criminal
Procedure Act, the accused set out the basis of his defence as being
a matter of self-defence. He alleged that the complainant
assaulted
him by throttling him whilst the complainant was in possession of an
iron rod. He managed to disarm the complainant
and hit the
complainant on the head with the same iron rod.
[2] On behalf of the
state only the complainant testified to the effect that the accused
confronted him in the street and demanded
tobacco from him. When he
told the accused that he does not have any tobacco in his possession,
the accused hit him with an iron
rod.
[3] The
accused’s rights in regard to cross-examination were then
explained to him by the presiding magistrate and, although
the
accused initially intimated that he did not understand the
explanation, he did proceed with some cross-examination of the
complainant. Thereafter the state closed its case and the accused’s
rights were then explained to him by the presiding magistrate
in the
following manner:
“
The public
prosecutor is closing his case. That means that he has got no other
witnesses to call. Now this is your chance now to tell the
court
your version. You can do so by giving evidence under oath whereby
you will be subjected to cross-examination by the public
prosecutor
and the court may also ask you some questions. Bear in mind that
what you have told the court in your basis of defence
and the
questions that you put to the witness are not regarded as evidence.
They will only be regarded as evidence if repeated
under oath. Do
you understand, sir?”
The
accused then
intimated
that he does understand. The record then shows the following:
“
COURT
:
Yes, what do you elect to do, sir?
ACCUSED
:
Yes I want to show the court the wounds.
COURT
:
No, man, I am asking what do you elect to do?
ACCUSED
:
Your worship, I will listen to the court.
COURT
:
So are you closing your case?
ACCUSED
:
Yes, I am closing my case, your worship.
COURT
:
Defence case closed, Mr Prosecutor.”
Thereafter the accused
addressed the court by just intimating that he is not guilty because
he did not have the intention to assault
the complainant.
[4] The accused was found
guilty as charged and sentenced to six months imprisonment.
[5] From
the aforesaid it is quite clear that the accused did not understand
the implications of not testifying in his own defence,
neither was he
properly informed about the implications of not testifying. He was
obviously a layman that did not understand what
the term evidence
under oath implies and was obviously not explicitly informed that, if
he does not give evidence under oath, the
evidence of the complainant
could and most probably would be accepted which would inevitably lead
to a conviction. What is more,
he was obviously lured by the
presiding officer into closing his case without the implication of
that being explained to him in
proper understandable terms for a
layman.
[6] In
reply to enquiries from this court, it appears that the presiding
officer at that stage has been employed on a contract basis
which
employment expired on the 31
st
of November 2009 and that, notwithstanding efforts to contact and get
hold of the said presiding officer, he could not be traced.
[7] From the above it is
clear that the accused did not understand the implications of the
explanation given to him and had no idea
what the results of closing
his case without giving evidence under oath would be. Instead of
explaining that in proper understandable
terms, he was lured into
closing his case by the presiding officer. This obviously led to a
miscarriage of justice and the conviction
and sentence cannot stand.
[8] In the result the
conviction and sentence are set aside.
___
____________
A
.
F. JORDAAN, J
I
agree.
______
_______
C.
B. CILLIé, J
/EM