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[2009] ZAGPPHC 363
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S v Komane (A1114/09, 1664, 18/200 (Makweng), A354/2008) [2009] ZAGPPHC 363 (8 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
CASE
NO:A114/09
DATE:
08 DECEMBER 2009
HIGH
COURT REF NO:1664
MAGISTRATE
S SERIAL NO: 18/2008 (MANKWENG)
REVIEW
CASE NO: A354/2008
In
the matter between:
THE
STATE
and
LM
KOMANE
REVIEW
JUDGMENT
RABIE
J :
1.
The accused was convicted on 13 August 2008 on a charge of
contravening section 3(sic) of Act 71 of 1968 (possession
of a
dangerous weapon) and sentenced to seven months imprisonment
conditionally suspended for a period of three years.
2.
When the matter came on review, the learned reviewing Judge made
certain enquiries relating to the question whether
the accused was
properly charged and/or convicted.
3.
The magistrate responded to the query and submitted that the
conviction was in order. Two senior members of the office
of the
Director of Public Prosecutions also wrote an opinion and I am
indebted to them They did not support the conviction of the
court a
quo.
4.
The evidence on behalf of the prosecution was that on the night in
question the police were performing crime prevention
duties which
entailed, inter-alia, going into the Ga Motapo Hodgy Hodgy Tavern
where people were drinking. They usually searched
people for
dangerous weapons, unlicensed firearms and anything else that would
be illegal to possess.
5.
The accused was sitting quietly drinking beer when the police
approached him It is in dispute what exactly happened
next but
according to the police they searched him and found three knives in
his pocket Two of the knives were Okapi knives and
the other was of
an unknown brand. They said that the accused did not want to explain
his possession of the knives and that, as
a result, he was arrested
6.
The accused did not testify but presented the evidence of a witness.
The accused's version was that he had earlier
that day used the
knives for skinning some type of beast in preparation of a wedding
ceremony and that he was on his way home when
he decided to enter the
tavern to purchase beer It was then that he was arrested.
7.
The reviewing Judge noted that the accused should have been charged
under section 2 of act 71 of 1968 (the Act) and
not section 3. He
further posed the question whether the accused's version was not
reasonably possibly true and more specifically
why the evidence of
his witness, Mr Komane. had been rejected.
8.
It is not necessary to refer to the commentary of the Magistrate. I
agree with the submissions of the Senior State
Advocates that the
charge against the accused clearly describes a contravention of
section 2 (a) of the Act and not a contravention
of section 3 and
also that the evidence relates to possession of the knives and not
the manufacturing, sale or supply thereof.
It is thus clear that the
mention of section 3 must have been a typographical error and
furthermore that no injustices resulted
therefrom.
9.
Regarding the rejection of the version of the accused and more
particularly the evidence of each witness Mr Komane,
the following
may be said: The State Advocates may be technically correct in their
view that since the accused did not testify,
he had no "version"
before the court. However, as a general proposition, the "version"
of an accused should
surely also refer to the bulk of evidence
presented on his behalf. It is after all such a “version’
which has to be
adjudicated as being reasonably possibly true or not.
10.
Furthermore, it is clear from a reading of the record that the
accused was under the impression that his evidence was before
the
court and that the court would consider what he had said during his
plea explanation as well as during his cross-examination
and his
answers to the magistrate. It was not properly explained to him that
same does not constitute evidence. However, in light
of the aspects
mentioned below. I am of the view that no more needs to be said about
this point.
11.Of
more importance is the question as to why the evidence of Mr Komane
was rejected. The reasons given by the magistrate at the
time as well
as in his recent response have no foundation and cannot be upheld.
The suggestion that the witness was unduly influenced
by the accused
to give the evidence which he did. similarly has no foundation and
should be rejected.
12.I
agree with the submissions by the State Advocates that Mr Komane’s
evidence cannot be rejected and that he gave a valid
reason for the
accused’s possession of the knives on the night in question.
That evidence accords with the accused s version
given in his plea
explanation as well as in the version put to the state witnesses. The
probabilities are in any event not against
the version of the
accused. As mentioned by the Stated Advocates, he would hardly have
had three knives in his possession for purposes
of an unlawful
assault on anybody. Such possession is more compatible with the
version of the accused that he was returning home
after the skinning
and slaughtering of a beast.
13.
Having regard to all the evidence I am of the view that the version
of the accused and more particularly the evidence of Mr
Komane cannot
be rejected, that the accused gave a reasonable explanation of his
possession of the knives and that, consequently,
he should not have
been convicted.
14.
In the result I make the following order:
1.
The conviction and sentence are set aside and replaced by the
following
“
The
accused is found not guilty”.
C.P.RABIE
JUDGE
OF THE HIGH COURT
I
agree
G.
WEBSTER
JUDGE
OF THE HIGH COURT