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2024
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[2024] ZANCHC 49
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Dipheko v Ditse and Another (CA&R50/2021) [2024] ZANCHC 49 (24 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
Case
Number:
CA&R50/2021
Heard: 19 February 2024
Delivered: 24 May 2024
Reportable:
YES /
NO
Circulate
to Judges: YES /
NO
Circulate
to Regional Magistrates: YES /
NO
Circulate
to Magistrates: YES /
NO
In
the matter between:
THEMBA
DIPHEKO
APPLICANT
and
M.S.
DITSE REGIONAL MAGISTRATE
FIRST RESPONDENT
THE
STATE
SECOND RESPONDENT
Coram:
Lever J & Tyuthuza AJ
JUDGMENT
ON REVIEW
Tyuthuza
AJ
INTRODUCTION
1.
On 29 October 2021, the applicant launched
this application to review the decision of the Honourable Magistrate
Ms Ditse (the first
respondent) handed down on 2 July 2019 in the
Regional Court.
2.
The applicant on review seeks the
following relief:
“
The
conviction of applicant in case number, RCZ/96/2017 on count one (1)
delivered on 2 July 2019 should be reviewed, declared invalid
and
set-aside.”
3.
The State (the second respondent)
opposed the application and filed its Answering Affidavit in support
thereof. The first
respondent delivered the record in terms of
Rule 53 of the Uniform Rules on 24 January 2022.
4.
On 24 July 2023, the applicant lodged an
interlocutory application wherein he sought a declaratory order to
compel the first respondent
to comply with its obligations in terms
of rule 53(1) (b). After much debate with Adv Moeti regarding
what aspects of the
records are still missing, the applicant
abandoned the application to compel and sought to proceed with the
review application.
5.
The issue this Court was to determine is
the following:
5.1.
Whether the proceedings of the court
a
quo
is subject to review?
6.
In terms of
section 22
of the
Superior
Courts Act 10 of 2013
, the grounds upon which the proceedings of any
Magistrates’ Court may be brought under review before a court
of a Division
are:
(a)
absence of jurisdiction on the
part of the court;
(b)
interest in the cause, bias,
malice or corruption on the part of the presiding judicial officer;
(c)
gross irregularity in the
proceedings; and
(d)
the admission of inadmissible or
incompetent evidence or the rejection of admissible or competent
evidence.
7.
The application for review is premised on
section 35 of the Constitution. The applicant asserts that he
was denied the right
to a fair trial in that the proceedings were
conducted in an irregular and improper manner.
8.
The applicant, Mr Dipheko, stood trial
in the Regional Court on charges of rape (count 1), contravention of
a domestic violence
order (count 2) and assault (count 3). He
tendered a not guilty plea in respect of the charge of rape, and in
terms of a
section 115 plea he put all the elements of the offence in
dispute. On 2 July 2019 the court
a
quo
found that the State had proved
its case beyond reasonable doubt on counts 1, 2 and 3 and
consequently found the applicant guilty
on all counts. Aggrieved
by the conviction on count 1, the applicant launched this
application, as he was of the opinion
that he should be afforded
relief to ascertain whether the proceedings that resulted in his
convictions were in accordance with
justice before he would be
sentenced.
9.
In his Founding Affidavit, the applicant
avers that the conviction obtained must be reviewed, invalidated and
set aside, in that
he had pleaded not
guilty; put in dispute every element of the charge; and challenged
the chain of custody. Despite this,
the applicant avers that
the Court did not order that a trial within a trial be held.
10.
The DNA results were handed up and
accepted as exhibit B by the court
a
quo
. Counsel for the applicant
in the court
a quo
indicated that certain of the reports would be put in dispute but had
no objection to the DNA results being tendered as evidence.
The
defence went further to indicate that the chain of custody of the DNA
evidence would be in dispute and not the results.
It is common
cause that the defence did not request for a trial within a trial to
be held to determine the admissibility
of the evidence.
11.
T
he
transcript recorded the following exchange between the
counsel
for the accused, the prosecutor and the court:
PROSECUTOR
:
As the honourable Court pleases Your Worship. Your Worship
the state is in possession of the DNA results of the accused person,
the DNA results. The state would like to hand it up as Exhibit
B Your Worship confirming the DNA of the accused.
COURT
:
Any objection defence?
MR SCHREUDER
:
I have an objection Your Worship only to indicate that further on,
certain of those reports we will put into dispute. But it
can
be at this stage already be handed up.
COURT
:
I did not hear you.
MR SCHREUDER
:
Ja. Your Worship I have no problem with it can be handed up,
that is the result of the DNA reports. It can be handed
up, but
the way it has it obtained…
[intervenes]
COURT
:
The chain, you are putting the chain in dispute?
MR SCHREUDER
:
The chain will be in dispute.
COURT
:
Are you putting it into dispute? The chain.
MR SCHREUDER
:
The chain. As the Court pleases.
PROSECUTOR:
As the Court pleases Your Worship. Your Worship if I may
just get clarity from the defence. I think they are disputing
the results, not actually the chain.
COURT:
Are you disputing the results or the chain?
MR SCHREUDER
:
The chain.
PROSECUTOR
:
The chain. As the Court pleases.
COURT
:
So, what is contained in here you are not putting it into
dispute. If I follow you?
MR SCHREUDER
:
Ja, that is correct.
COURT
:
And the chain evidence.
MR SCHREUDER
:
Not in dispute.
COURT
:
And the chain evidence.
MR SCHREUDER
:
The chain. As the Court pleases.
COURT:
Per consent between the state and the defence the DNA result is
EXHIBIT B. The defence alludes to the fact; however the chain
is put in dispute. Do you follow sir?
12.
The applicant alleges that the second
respondent called a series of witnesses in order to prove the chain
of custody, but none of
these witnesses had testified to breaking the
seal or to have extracted the DNA. The applicant further avers
that since there
was a missing link in the chain of custody evidence
in relation to the DNA analysis, the Court ought to have ordered for
a separation
of the trial within a trial from the main trial.
13.
The applicant submits that as a result
of the way in which the proceedings were conducted, the conviction
was obtained in a manner
which is irregular, improper and thereby
denied him of a fair trial.
14.
The second respondent in its Heads of
Argument submitted that the applicant had disputed the chain of
evidence in regard to the
DNA and, therefore, that constituted the
issue of credibility and not admissibility. Adv Barnard
submitted that the question
before the court is the following:
“
whether a trial within a trial
must have been held where there is a factual dispute
.”
He submitted that a trial within a trial is not to be held, as
counsel for the applicant in the main trial merely
placed it on
record that the chain of evidence is in dispute. This was done
just for the State to call the necessary witnesses
to prove specific
facts. It was contented that the court
a
quo
did not make a gross
irregularity and will not be doing so in ordering the trial to
continue.
15.
The second respondent further submitted
that the applicant’s counsel in the court
a
quo
never asked for a trial within a
trial to be held, never raised the issue of irregularity and thus he
must have been of the view
that there was no need for a trial within
a trial.
16.
In the court
a
quo
the second respondent presented
the following evidence to establish the chain of custody, namely: Dr
Gonzales who testified that
he examined the complainant on 28
February 2010, had taken swabs from the complainant’s private
parts and handed the swabs
to Constable Gumede. Constable
Gumede testified that he was on standby on 28 February 2010 and took
the complainant to the
Kimberley Hospital for the crime kit
examination, whereafter the crime kit was sealed before him and
handed over to him. He
signed for receipt thereof and took it
from the hospital to his office where he locked the kit in a steel
cabinet for safekeeping.
He further testified that the kit was
not tampered with and was properly sealed and had a unique serial
number. He
testified that he handed the kit to Mr Khutwane the
next day. Mr Khutwane testified that he received the
well-sealed kit
from Constable Gumede on 1 March 2010 and handed it
to Colonel Duvenhage on 15 April 2011. He stated that whilst
the kit
was in his care it had not been tampered with or damaged. Mr
Duvenhage testified that he received the kit on 15 April 2011
and he
took the kit to the forensic laboratory in Cape Town on 18 April
2011. He testified that when he took the kit to the
laboratory,
the forensic bag, the exhibit and the seal number was not damaged.
Mr Moamogwe testified that he took the accused’s
buccal
sample on 13 April 2017 and handed it to the late Mr Alec and further
that there was no tampering with the kit and exhibit
bag. The
adult sexual assault evidence collection kit was received by Ms
Heynes on 24 July 2017 who did the final DNA interpretation
by
analysing the specimens and established the connectivity with the
applicant.
17.
In her judgment the
learned Magistrate stated with regard to the DNA analysis:
“
The
Court will thus find in this instance that the chain of evidence in
our case is intact. There is no evidence of tampering
or damage
to the exhibits before they were analysed at the forensic lab in Cape
Town. That the Court notes that evidence
was adduced who
handled them and as at the time they reached Cape Town
.”
18.
In
the matter of
S
v Matshaba
[1]
the
court held as follows:
“
The
importance of proving the chain of evidence is to indicate the
absence of alteration or substitution of the exhibits. If
no
admissions are made by the defence, the State bears the onus to prove
the chain of evidence. The State must establish
the name of
each person who handled the evidence, the date on which it was
handled and the duration. Failure
by the state
to establish the chain of evidence
affects the integrity of such evidence and thus renders it
inadmissible”.
19.
In
S
v Van Tonder
[2]
,
Myburgh J held that, if the chain of custody is disputed, the State
has to prove that the sample was properly sealed, that it
had reached
the laboratory in the same condition as when dispatched, and that it
could not be opened without breaking the seal.
If necessary, it
will then be incumbent upon the State to subpoena the persons who had
sealed, transported and received the
sample to give evidence as to
the correctness of the procedure.
20.
The
record reveals that the chain of evidence was put in dispute.
The second respondent led evidence to establish the chain
of custody.
The evidence was also scrutinised under cross examination. At
no point during the proceedings did the defence
request that a trial
within a trial be held to determine the admissibility of the DNA
evidence. The State adduced sufficient
evidence in this
respect.
21.
Section
35(3) of the Constitution
[3]
affords everyone a right to a fair trial which includes the right to
adduce and challenge evidence at trial. The Constitution
further excludes evidence obtained in a manner that violates any
right in the Bill of Rights if the admission of that evidence
would
render the trial unfair or otherwise be detrimental to the
administration of justice. This Court finds no evidence
of the
violation of the applicant’s right to a fair trial or that the
first respondent’s actions amounted to a gross
irregularity
that would render the conviction against the applicant to be set
aside.
22.
In
the matter
Wahlhaus
and others v Additional Magistrate, Johannesburg and Another
[4]
,
the court stated that the High Court will not ordinarily interfere
whether by way of appeal or review before a conviction has
taken
place in the lower court even if the preliminary point decided
against the accused by a magistrate is fundamental to the
accused’s
guilt.
23.
It
has been stressed that underlying the reluctance of the Courts to
interfere in unterminated proceedings in a lower court is the
undesirability of hearing appeals or reviews piecemeal.
[5]
24.
In applying the
appropriate test to the facts and circumstances of the present
matter, this Court is persuaded that the first respondent
did not
commit a gross irregularity in the proceedings. The first
respondent correctly found the evidence to be admissible
in relation
to the conviction. The applicant has failed to persuade this
Court that the grounds referred to in
section 22
of the
Superior
Courts Act for
interfering in proceedings exist.
25.
This
application for review comes 14 years after the offence was
committed, and five years after the applicant was convicted. The
continued delay in the finalisation of the trial is unreasonable and
has the effect of substantial prejudice not only on the accused
but
the victim of the accused actions and such delay must be eliminated.
In
Zanner
v Director of Public Prosecutions, Johannesburg
[6]
the
court stressed
that:
“
.
. . [
T]he
right of an accused to a fair trial requires fairness not only to
him, but fairness to the public as represented by the State
as well.
It must also instil public confidence in the criminal justice
system, including those close to the accused, as well
as those
distressed by the horror of the crime”.
[1]
Wherefore the following order is made:
(i)
The application for review is dismissed.
(ii)
The accused’s conviction is confirmed.
(iii)
The matter is remitted to the court
a quo
for continuation of
the proceedings on sentence.
T
TYUTHUZA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
L
LEVER
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
APPEARANCES:
On
behalf of the applicant:
Adv
Moeti.
On
the instruction of:
Legal
Aid SA
On
behalf of the second respondent:
Adv
Barnard
On
the instruction of:
The
NDPP
[1]
2016
(2) SACR 651
(NWM)
at para 14
[2]
1976 (3) SA 391 (T)
[3]
The Constitution of the Republic of South Africa, 1996
[4]
1959
(3) SA 113
(A) at 119G
[5]
S
v The Attorney- General of the Western Cape ; S v Regional
Magistrate Wynberg and another
1999
(2) SACR 13
(C)
at 22 e–f
[6]
(
[2006] ZASCA 56
;
2006
(2) SACR 45
(SCA) at para 21