S v Metu (5032/2003) [2003] ZAWCHC 64 (25 November 2003)

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[2003] ZAWCHC 64
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S v Metu (5032/2003) [2003] ZAWCHC 64 (25 November 2003)

4
IN THE HIGH
COURT OF SOUTH AFRICA
(CAPE OF GOOD
HOPE PROVINCIAL DIVISION)
REPORTABLE
REVIEW CASE
NO: 5032/2003
In
the matter between:
THE
STATE
And
LINDA
METU ACCUSED
________________________________________________________________________
REVIEW
JUDGMENT DELIVERED 25 NOVEMBER 2003
________________________________________________________________________
DLODLO,
A.J
The matter came
before me by way of an automatic review in terms of section 302 of
Act 51 of 1977 as amended.
The two (2)
accused persons, according to the Charge Sheet, were charged with
attempted housebreaking with the intent to steal.
In the
alternative the Accused were charged of malicious injury to
property. Both the main charge as well as the alternative
are
alleged to have happened on 9 July 2003 at Konstitusie Street,
Number 9, Cape Town.
Both Accused
were not legally represented. They elected to handle their defence
on their own when their rights to legal representation
were
explained to them by the magistrate.
On 14 October
2003 when the Accused were called upon to plead they pleaded Not
Guilty. In terms of Section
115 Act 51
of 1977 they respectively
disclosed the basis of their defence as follows:
Accused 1:
“We
had a quarrel with accused 2. She picked up a piece of wood and
threw it at me, which missed me and hit the window pane.”
Accused
2:
“I had a
quarrel with accused 1, got angry and hurled a plank at him. He
dived it and it hit the window.”
After
explanation of plea in terms of Section 115 of Act 51 of 1977 the
proceedings became mechanically recorded.
What
appears on the very first page of the typed record is this:
“Aanklaer stel eerste Aanklag aan beide beskuldigdes:
Aanklag:
Poging
tot diefstal.
Court:
How do you plead
accused 1?”
Both
accused once more pleaded
not guilty and
Accused 2 tendered explanation thus:
“
Your Worship
we went to that flat to go and fetch water. Your Worship as we are
the people who are washing cars Your Worship” and
thereafter he
repeated his earlier explanation. Similar explanation was put forth
by Accused 1.
The State led
evidence of three (3) witnesses. I do not propose to deal with the
testimony of these witnesses. It suffices to
mention that their
evidence did not advance the State’s case any further. It was not
proved that any of the accused committed
any of the offences
mentioned in this matter. I hasten to add that it is not clear what
charges were preferred against the accused.
The record mentions
attempted housebreaking with malicious injury to property as an
alternative. The record further mentions
the charge to have been
“Poging tot diefstal”. It is a confused scenery to say the
least.
At the close of the State’s
case the magistrate
mero
moto
discharged
accused 1 in terms of section
174 Act 51
of 1977. Accused 2
testified in his defence, in my view wrongly as he could simply have
closed his case.
The evidence by
the State did not in my view prove any guilt on the part of Accused
2. The magistrate clearly wrongly found the
Accused 2 guilty. It
is once more not clear from the record which offence is Accused 2
guilty of. Accused 2’s version was not
shown not to have been
reasonably possibly true. Even if the magistrate did not believe
the version of the Accused 2, he was not
in law entitled to reject
it and pronounce him guilty.
In
S
v Jaffer
1988
(2) SA 84
(C) Tebbutt J (Thring J concurred) reiterated the test laid
down in
R v
Difford
1937
AD 370
at 373, namely, that even if an accused’ explanation be
improbable, the Court is not entitled to convict unless it is
satisfied
not only that the explanation is improbable but that beyond
any reasonable doubt it is false. If there is any reasonable
possibility
of his explanation being true, then he is entitled to his
acquittal.
In
S v Kubheka
1982 (1) SA 534
(W) at 537 F – H, Slomowitz AJ said the following
in regard to an accused’ story:
“
Whether I
subjectively disbelieve him is, however, not the test. I need not
even reject the State case in order to acquit him. I
am bound to
acquit him if there exists a reasonable possibility that his evidence
may be true. Such is the nature of the onus on
the State.”
Van der Spuy AJ (as he then
was) in
S v
Munyai
1986
(4) SA 712
(V) at 715G explaining further that what the onus on the
state entailed stated thus:
“
In other
words, even if the State case stood as a completely acceptable and
unshaken edifice, a Court must investigate the defence
case with a
view to discerning whether it is demonstrably false or inherently so
improbable as to be rejected as false.”
In other words despite the
years that have gone by the test still remain the same as set out in
R v M
1946
AD where Davis AJA (as he then was) stated:
“………
.the
Court does not have to believe the defence story, still less does it
have to believe it in all its details; it is sufficient
if it thinks
that there is a reasonable possibility that it may be substantially
true.”
As no formal
Judgment was delivered by the magistrate it remains a mystery why he
convicted Accused 2. It is a further mystery
what the crime is that
she was convicted of. At any rate regardless of what the magistrate
had in mind, the evidence tendered
for the State does not succeed to
prove Accused 2 guilty of any of the offences mentioned in this
case.
In
my view the evidence viewed as a whole brings about doubt. It is
trite law that where there is doubt in a criminal matter, the
benefit
thereof must ordinarily be given to the accused person. In the
circumstances of this case, I am of the view that Accused
2 was
wrongly convicted.
The
conviction and sentence are therefore set aside.
________________
DLODLO, A.J
I
agree and it is so ordered. ____________________
HLOPHE,
JP