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[2008] ZAFSHC 58
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S v Molehe (309/2008) [2008] ZAFSHC 58 (11 July 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No. :
309/2008
In the review between:-
THE STATE
versus
MALEKHOTLA SUZAN
MOLEHE
_____________________________________________________
CORAM:
VAN
DER MERWE, J
_____________________________________________________
JUDGMENT
BY:
VAN
DER MERWE, J
_____________________________________________________
DELIVERED
ON:
11
JULY 2008
_____________________________________________________
[1] The
accused was convicted of assault with intent to do grievous bodily
harm and on 17 April 2008 sentenced to 12 (twelve) months
imprisonment of which 6 (six) months were suspended for a period of
three years on condition that the accused is not convicted
of assault
with intent to do grievous bodily harm or
common
assault committed during the period of suspension. The record or the
matter reached this Court for purposes of automatic
review only on 5
June 2008. On 6 June 2008 reasons for sentence were requested by a
Colleague. These reasons were received by
the registrar of this
Court on 8 July 2008.
[2] The
charge against the accused was that she hit the complainant with a
brick on her forehead. Only the complainant testified
on behalf of
the state. The accused, who was of course undefended, testified in
her own defence and admitted that she hit the
complainant with a
brick, but stated that that was done in self-defence as the
complainant hit the accused with her fist. The
accused called a
witness who corroborated the accused in material respects. I
consider it unnecessary to deal with the merits
of the conviction as
I am satisfied, on each of the separate grounds set out in the
following two paragraphs, that the accused
did not have a fair trial.
I am also satisfied that the matter must be dealt with at this stage
without requesting further reasons
from the magistrate, in terms of
the proviso to section 304(2)(a) of the Criminal Procedure Act.
[3] After
the conclusion of the evidence of the witness for the accused, the
accused indicated that she wished to call a further
witness who was
present in court. The magistrate then immediately out of her own
accord and without any further inquiry, refused
to allow the accused
to call this witness on the basis that the witness was present in
court whilst evidence was given in the case.
It does not appear from
the record who the witness was, but it may very well have been the
husband of the accused who was present
at and central to the fight
between the complainant and the accused. It is also quite unclear
for what period the witness was
present during the proceedings. Be
that as it may, the refusal of the magistrate to allow the accused to
call this witness is
a gross irregularity. Although the fact that a
witness had been present in court during testimony may affect the
weight of the
evidence, such evidence cannot on that account alone be
excluded or regarded as inadmissible. See
S
v MANAKA
1978 (1) SA 287
(T).
[4] Regrettably
the conduct of the magistrate in respect of the accused and her
witness also resulted in a failure of justice.
On two occasions
shortly after commencement of cross-examination of the complainant,
the accused put clearly relevant questions
to the complainant. On
each occasion the magistrate interrupted and limited the
cross-examination on the basis that the question
raised matters not
mentioned in the plea explanation of the accused. It is trite that
an accused person is not obliged to make
any statement in terms of
section 115 of the Criminal Procedure Act and that if the accused
person elects to do so, the accused
is entitled to make a brief
statement only indicating the basis of the defence. It is therefore
highly irregular to disallow cross-examination
merely on the basis
that it raises matters not mentioned in a statement in terms of
section 115 of the Criminal Procedure Act.
It is no wonder that the
accused had no further questions in cross-examination of the
complainant after the second such interruption.
Furthermore the
questioning by the magistrate of the accused amounted to
cross-examination, which ended with the following remark
by the
magistrate:
“
Yes, sezesi(?) you keep on
somersaulting wena, you keep on saying this and then again you say
that one, you say that one and this
is important for your defence.
Any further re-examination?”
The magistrate
interrupted the quite coherent and clear evidence in chief of the
witness of the accused in the following manner:
“
If I find out that you are
making up the story, you will be charged for perjury. ---(Not through
interpreter:) I know that.
And you will be send (?) to Kimberley?
--- I know that.
Do you understand? --- I understand.
Because everything that you said so
far was never, it is a new thing. New, new, new, new thing. ---
Uhm.”
It was
quite incorrect to say that everything that the witness had said was
new. The questioning by the magistrate of this witness
also amounted
to cross-examination and included the following
(again
incorrect) statement by the magistrate:
“
So now wena,
you are coming up now, instead of corroborating her story, you are
coming up with a new evidence. --- (no audible reply).”
The
quoted remarks
and
statements not only diminished the dignity and the decorum of the
court proceedings, but could reasonably be apprehended as
indicative
of bias.
[5] In the result the
conviction and sentence are set aside. The accused must be released
immediately.
________________________
C.H.G. VAN DER MERWE,
J
/sp