About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 216
|
|
S v Morris and Another (A488/2007) [2008] ZAWCHC 216 (6 June 2008)
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
DATE
:
6 JUNE 2008
CASE
NUMBER
:
A488/2007
In
the matter between:
STATE
And
NATHANIEL
MORRIS
NICO
MORRIS
JUDGMENT
(Appeal against convictions and
sentences)
DESAt.
J
:
This appeal relates to the alleged
theft of a cow which was recovered by the owner a few days later.
Pursuant to their arrest the
accused appeared before Oudtshoorn
magistrate, Mr RJ Gerber, on 26 occasions until the matter was
finally concluded almost 2 years
later. It seems that a
disproportionate amount of time and resources were employed in
pursuing this prosecution.
In any event, the accused were
convicted on the said charge. They were sentenced differently as
accused number two was barely 16
years old. Accused number one was
sentenced to 18 months' imprisonment of which a half was
conditionally suspended. Accused number
two received a postponed
sentence. With the leave of the trial court, the accused appeal to
this court against their convictions.
Bluntly stated, their convictions are
incapable of fair-minded support. Besides the weight of the evidence
militating in favour
of the accused, there were also several
procedural irregularities committed in the course of the trial.
In respect of the latter 1 refer to
one such irregularity. At the stage when accused number one was
unrepresented the trial court
permitted cross-examination of the said
accused on what appears to be a confession which was not properly
admitted in evidence.
That "confession" was patently
inadmissible for different reasons which I do not propose setting out
herein.
Perhaps
of greater importance in this matter is the evidence in favour of the
accused. The dramatis personae in this matter, were
the accused
themselves, a Mr Danie Kok, who identified the cow, and a Ms Nora
Zazini. Ms Zazini is accused number one's mother
and accused number
two's grandmother. Her evidence was, or should be, of some
significance, in that it is alleged by the defence
that the cow which
was appropriated belonged to her late husband. More importantly, that
she gave permission for the cow to be
sold.
At the outset of the trial the accused
admitted selffng the cow for R1 200. They denied, however, that the
cow was the property
of the farm Van Wykskraal. They maintain that it
belonged to Ms Zazini. Mr Kok's evidence was simply to the effect
that he is the
manager of Van Wykskraal and the cow sold and
recovered was the property of the said farm. His identification of
the cow cannot
be faulted and it appears that this aspect was not in
dispute at the end of the matter.
Did the accused knowingly sell the cow
belonging to the farm or did they have a reasonable basis upon which
to conclude that the
cow belonged to their family? Essentially this
was the issue which the trial court had to decide.
Mr Kok's evidence is significant in
one other respect. He admitted that Ms Zazini's late husband, in
fact, purchased cattle from
the farm. He stated that they were male
and not female cattle. This evidence was watered down somewhat when
he conceded that on
at least one occasion a cow had
As
Ms SFA Raphael's
, who
appeared on behalf of the state, has correctly pointed out it is
unfortunate that the state omitted to lead any evidence of
the
circumstances in which the cow was transferred from the farm.
With regard to the brand markings, if
that is the correct translation of the Afrikaans 'brandmerk', on the
cow, the evidence is
not conclusive that the accused could have seen
or did see such markings.
The evidence tendered by the accused
was not of a high standard. Besides the fact that they were at some
stage unrepresented there
are several different reasons for the
quality of their evidence. In particular, they are poorly educated
farm workers lacking in
sophistication. Despite that the magistrate
did not make an express finding that their explanation was not
reasonably possibly
true. If such finding can be inferred from his
judgment, compelling reasons for such a conclusion are not set out
therein.
One
aspect, however, finally resolves this matter to the advantage of the
accused. Neither the state nor the defence called Ms Zazini
to
testify on their behalf. She was, in fact, called to testify by the
magistrate as a witness of the court in terms of the relevant
provisions of the
Criminal Procedure Act
51
of 1977
. She confirmed, in unequivocal terms, that the cow sold had
been sold on her instructions and that her late husband had acquired
cattle, including cows, from Van Wykskraal. Though she was
cross-examined at length by the prosecutor, her evidence cannot be
faulted in any material respect.
In his judgment the magistrate refers
very briefly to her evidence. He does not, in fact, make any adverse
finding in respect of
this witness. In the light of her evidence, the
evidence of the accused, more specially their belief that the cow
belonged to their
family, cannot be excluded as a reasonable
possibility. The failure by the magistrate, to attach due weight to
the evidence of
this key witness, amounts to a misdirection of
sufficient significance to vitiate these proceedings.
Viewing the evidence in its totality,
this court cannot exclude the possibility that the evidence of the
accused may be, and probably
is, reasonably possibly true. In the
circumstance
THE APPELLANTS CONVICTIONS AND SENTENCES ARE SET
ASIDE
.
Before
I conclude this matter 1 have one further observation to make.
It has been brought to my attention that attorney Clyde
Avontuur of
Outdshoorn appeared on behalf of the accused on a pro amico basis.
This court is indebted to him for averting what
might otherwise have
been a miscarriage of justice. Thank you very much Mr Avontuur.
DESAI,
J
I
agree.
J.H.
ROUX, AJ