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[2009] ZAGPPHC 299
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S v Matlou and Another (D2298/2008) [2009] ZAGPPHC 299 (2 September 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
GAUTENG DIVISION, PRETORIA
NOT
REPORTABLE
CASE
NO D2298/2008
HIGH
COURT REF. NR.: 276
DATE:
2 SEPTEMBER 2009
THE
STATE
APPLICANT
V
WILSON MATOME MATLOU
ACCUSED
1
FRANS
MOKHWIBITSANE
ACCUSED
2
Review
Judgment:
Msimeki
J
Makhafola
AJ
JUDGMENT
MAKHAFQLA
AJ:
INTRODUCTION:
1.
Two undefended accused stood trial in
the district court of Wonderboom held in Pretoria North, facing
charges of contravening Section
82 of Act 129 of 1993, possession of
car breaking implement to wit an L-shaped wheel spanner, committed on
or about 22 September
2008, at or near Pretoria North. Both accused
pleaded not guilty and tendered no plea-explanation.
2.
Both accused were found guilty as
charged and sentenced as follows: Accused 1 to 8 months imprisonment
and he was declared unfit
to possess a firearm in terms of Section
103 of Act 60 of 2000. Accused 2 was sentenced to 20 months
imprisonment.
3.
The matter is laid before me by way of
automatic review. Upon reading the record, 1 caused a query to be
sent to the learned Magistrate
for his attention and comment. The
query comprised 7 (seven) questions constituted as follows:
1
)
Are
the explanations of both the accused not reasonably possibly true?
2)
On the
state case only, is possession proved by the state against the
accused?
3)
On the
state ease only, at the close of its case, were the accused not
entitled to be acquitted in terms of S174 of Act 51 of 1
977? (The
accused did not make any plea-explanations).
4
)
Was
there am
prima facie
evidence
that required an answer by the undefended accused when the state
evidence is to the effect that at the time of their arrest
they were
not in possession of the said wheel-spanner?
5)
Are
the accused obliged to give an explanation of anything not found in
their possession in terms of Section 82 of Act 129 of 1903?
6)
Are
these questions of the prosecution fair?
Vide
:
Record:
Page 24 lines 4-9
S V
1 PI-I.ENG 1993 (2) SACK 185 (I) at 189 S V Kl BI.KA 1982 (I) SA 534
(W LD) at 537 E R V M
1946 AD 1023
at 1027.
7)
Is
the question by the Prosecutor not in stark contrast with the state
recorded evidence found on page 24 lines 15-16 of the record?
4.
The learned Magistrate did reply to the
query but had combined the answer to paragraphs 3 and 4 in one
answer. This pattern was
also followed when answering paragraphs 6
and 7 thereof.
5.
Upon receiving the Magistrate's reply 1
caused the query the reply thereto and the record of the proceedings
to be sent to the office
of the Director of Public Prosecutions for
attention and comment. A Senior State Advocate and a deputy director
of Public Prosecutions
attended to the matter and unanimously issued
their comment which is very useful. I thank them for their researched
comment.
6.
On the state case only, possession was
never proved against the accused.
Vide
:
Record: Page 6 lines 15-25
The
evidence of Inspector Zacharia Johannes Niemand is recorded that
nothing was found in their possession. The evidence of Inspector
Daniel Mbolawa Matjene corroborates that of the Inspector Niemand
that of finding the L-shaped wheel spanner not in the possession
of
the accused.
7.
No intention to possess the said tool
was even proved, if any needed to be proved.
8.
No prima facie case was ever made
compelling the accused to answer. Both accused were undefended. It
was the duty of the trial court
to mero motu discharge them in terms
of Section 174 of Act 51 of 1977 rather than allow them to testify.
Vide:
S V ZI MM ERIE en ‘n ander
1989
(3) SA 484
(C)
S V
AM ERIKA
1990 (2) SACR 480
(C)
S V
MASHELE
1990 (1) SACR 678
(T)
9.
Questions placing an onus upon the
accused were not proper and were unfair. The court should have
intervened and disallowed the
Prosecution to ask them.
Vide:
S V IPELENG
1993 (2) SACR 185
(T) at
189
S V KUBEKA 1982 (1) SA (WLD) at
537
E RVM
1946 AD 1023
at 1027
10.
The accused were undefended and it was
the duty of the presiding officer to protect their rights and to see
to it that fair questions
are asked by the Prosecution. That was not
done. The presiding officer did not perform his duty, Moreover the
accused have explained
the origin oi the said spanner. There was no
evidence to controvert their explanation. At best, this is a
borderline case that
raises doubt which should redound to the
accused.
11.
In the result, 1 am of the view that the
proceedings were not in accordance with justice and I suggest that
they should be set aside.
ORDER:
1)
The convictions and sentences of both
the accused are set aside.
2)
Both accused are found not guilty and
are discharge.
3)
The Registrar is ordered to send
this order to the correctional service centre where the accused are
detained that they be released
immediately if they are not detained
for any other ca
ses.
K.
MAKHAFOLA
ACTING
JUDGE OF THE HIGH COURT
I
agree, and it is so ordered
M.W.
MSIMEKI
JUDGE
OF THE HIGH COURT