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[2024] ZALMPPHC 17
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Sithole v Regional Magistrate A Swanepoel and Another (REV69/2022) [2024] ZALMPPHC 17 (26 February 2024)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: REV69/2022
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
NQOUVI
SIMON SITHOLE
APPLICANT
And
THE
REGIONAL
MAGISTRATE:
A
SWANEPOEL
1
st
RESPONDENT
THE
DIRECTOR OF PUBLIC PROSECUTIONS,
POLOKWANE
2
nd
RESPONDENT
REVIEW
JUDGMENT
NAUDE-ODENDAAL
J:
BACKGROUND
FACTS:
[1] This
is a review application in terms whereof the Applicant applies that
the decision of the 1
st
Respondent to allow the 2
nd
Respondent to re-open its case be reviewed and set aside. The review
application is opposed by the 2
nd
Respondent.
[2] The
Applicant is charged with two counts. The first count being rape in
that it is alleged that he is
guilty of the crime of contravention of
the provisions of Section 3 read with Sections 1, 55, 56(1), 57, 58,
59, 60 and 61 of the
Criminal Law Amendment Act (Sexual Offences and
Related Matters) 32 of 2007 read with
Sections 256
,
256
,
257
and
261
of the
Criminal
Procedure Act 51 of 1977
, the provisions of
Sections 51
and
52
and
Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
, as amended
as well as
Sections 92(2)
and
94
of the
Criminal Procedure Act 51 of
1977
, in that in 2012 and 2013 and at or near Seshego in the Regional
Division of Limpopo the Applicant did unlawfully and intentionally
commit an act of sexual penetration with a female person to wit, M.M
(11 years at the time of the incident) (victim's name concealed
to
protect the victim's identity) by inserting his penis into her vagina
several times over a period without her consent.
[3] The
Charge Sheet in respect of Count 1 also stipulated the following:-
•
Section
51(1)
and Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
,
as amended by
Section 33
of Act 62 of 2000 and Section 36 of Act 12
of 2004 and further amended by Act 38 of 2007 is applicable in that
the Complainant
was below 16 years.
•
If
the Accused is convicted of the above charge of Part 1 Schedule 2,
Section 51(1) makes provision for a minimum sentence of life
imprisonment.
[4] The
second count leveled against the Applicant is one of Sexual Assault.
It is alleged that the Applicant
is guilty of the crime of
contravention of the provisions of Section 5(1) read with
Sections 1
,
2
,
50
,
56
(1),
56A
,
57
,
58
,
59
,
60
and
61
of the
Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007
, as amended.
Further read with
Sections 120
of the
Children's Act, 38 of 2005
, in
that in 2012 and 2013 and at or near Seshego in the Regional Division
of Limpopo the Applicant did unlawfully and intentionally
sexually
violate the complainant, to wit the said M.M.
(11yrs) by touching
her breasts and vagina without the consent of the said complainant
several times over a period.
[5] The
Applicant pleaded not guilty to the charges against him and the
matter is still pending in the Regional
Court as a partly heard
matter. The Applicant has been legally represented throughout the
trial.
[6] The
2
nd
Respondent led evidence of five state witnesses and
further documentary evidence and closed its case. After the closure
of the
State's case, the Applicant applied for a discharge in terms
of
Section 174
of the
Criminal Procedure Act, 51 of 1977
in respect
of both charges against him. The application was dismissed.
[7] Pursuant
to the dismissal of the application to be discharged, the Applicant
opened his case and testified
in his own defense. The Applicant
closed his case on 6 April 2022. The matter was then postponed for
argument to 3 May 2022.
[8] On
3 May 2022, the 2
nd
Respondent made an application to
re-open the State's Case. The application was opposed by the
Applicant. On 17 May 2022, the 1
st
Respondent made a
ruling in favour of the 2
nd
Respondent by allowing the 2
nd
Respondent to re-open its case. It is this ruling by the 1
st
Respondent to allow the 2
nd
Respondent to re-open its case
that is the subject matter of this review application.
THE
APPLICANT'S SUBMISSIONS:
[9] It
is submitted on behalf of the Applicant that the order of the 1
st
Respondent in allowing the 2
nd
Respondent to re-open its
case is grossly irregular and would lead to a failure of justice on
the following grounds:-
(a) It
is common cause that the 1
st
Respondent did not lead
evidence
(b) pertaining
to the age of the complainant during its case.The contention made by
the 2
nd
Respondent during the application for re-opening
of its case and in its affidavit filed in the present matter, is that
there was
a
bona fide
mistake and an oversight on the part of
the prosecution by not leading evidence pertaining the age of the
complainant.
(c) It
is submitted that the reasons advanced by the 2
nd
Respondent in this regard are not reasonably sufficient explanation
to allow for the re-opening of its case.
(d) It
is submitted that the finding that the 1
st
Respondent made
in accepting the submission by the 2
nd
Respondent that the
prosecution realized during preparation for arguments that it failed
to lead evidence pertaining to the age
of the complainant is
inconceivable and therefore, not exucusable.
(e) The
basis for this contention is based on the fact that the submission of
the 2
nd
Respondent in this regard is disingenuous in
saying that he realized when he was preparing for arguments that the
state did not
lead evidence regarding the age of the complainant. Mr.
Phelane, on behalf of the 2
nd
Respondent, was the
prosecutor of record throughout the proceedings and even on the day
that the 1
st
Respondent brought up the aspect that the 2
nd
Respondent, did not prove the age of the complainant beyond a
reasonable doubt immediately after the Applicant closed his case.
(f) When
the matter was postponed for argument, the 2
nd
Respondent
was fully aware that it did not prove the age of the complainant
beyond a reasonable doubt. This was enduced as the
result of the
conduct of the 1
st
Respondent. It was, therefore,
submitted by the Applicant that the
bona fide
mistake and
oversight by not proving the age of the complainant was not realized
through the initiative of the 2
nd
Respondent itself in
preparation for argument as it was alleged.
(g) It
was submitted by the Applicant further, that the 2
nd
Respondent in
its
affidavit submitted and conceded in paragraph 21 that the 1
st
Respondent reminded the prosecution that the age of the
complainant has not been proven.
(h) The
Applicant submitted that the 1
st
Respondent impermissibly
descended into the arena by reminding the prosecution that it did not
prove the age of the complainant.
The age of a complainant is an
element which the prosecution had to prove beyond reasonable doubt.
The age of the complainant has
a bearing upon sentence upon
conviction.
(i) The
Applicant further submitted that the contention that the 1
st
Respondent descended into the arena is demonstrated by the record of
the trial proceedings. Firstly, the 1
st
Respondent directed the prosecution to start by proving the age of
the complainant and which directive the prosecution followed.
Secondly, when the 1
st
Respondent realized that the prosecution failed to prove the age of
the complainant in its case despite the directive, the 1
st
Respondent descended into the arena again by cross-examining the
Applicant, and even going to an extent of putting the version
of the
complainant to the applicant. This was irregular. It was, therefore,
submitted that the questions asked by the 1
st
Respondent in this regard were not clarity seeking questions, and
these questions amounted
to
cross-examination of
the Applicant by the 1
st
Respondent.
This contention is based on the fact that there was no evidence that
emanated from the Applicant regarding the age of
the complainant, and
further that the 2
nd
Respondent did not cross examine the Applicant regarding the age
of the complainant, at all. It was submitted further that
the conduct
of the 1
st
Respondent in asking the Applicant and cross-examining him on the age
of the complainant, was in pursuit to fill in the gap or
the missing
link in the prosecution's case by assisting the 2
nd
Respondent in proving the age of the complainant.
U) Thirdly,
when the 1
st
Respondent realized that there was no
satisfactory evidence on the part of the testimony of the Applicant
regarding the age of
the complainant, the 1
st
Respondent
descended into the arena once more by bringing it to the attention of
the prosecution that age of the complainant was
not proven and even
enquired about the birth certificate of the complainant before
postponing the matter for argument.
(k)
It
was submitted on behalf of the Applicant that for the above reasons,
the conduct of the 1
st
Respondent in directing the prosecution to start by proving the age
of the complainant. cross examining the Applicant on the
age of
the complainant and reminding the prosecution that it did not prove
the age of the complainant, cannot be regarded as conduct
that sought
clarity on the evidence during trial and that the conduct of the 1
st
Respondent cannot be regarded as conduct that sought that justice
should be seen to be done as submitted by the 2
nd
Respondent.
(I)
It
was submitted that the 1
st
Respondent committed a gross irregularity by descending into the
arena and thereafter assuming a prosecutorial role in the case
by
allowing for the re-opening of the 2
nd
Respondent's case and that the 1
st
Respondent did not exercise her discretion judicially properly in
granting the application in favour of the 2
nd
Respondent.
[10] It
is common cause that the Applicant did not make any admission during
trial in terms of
Section 220
of Act 51 of 1977, in respect of the
complainant's age and, therefore, the 2
nd
Respondent had a
duty to prove the age of the complainant during its case.
[11]
The Applicant's legal representative submitted that the Applicant has
already suffered prejudice in the present matter. Firstly,
as a
result that the application for the re-opening of the case for the
prosecution has been triggered by the conduct of the 1
st
Respondent and secondly, as a result that his version is already on
record. It was submitted by the Applicant that this is prejudicial
to
his defence and grossly infringes on his Constitutional Right to
challenge the evidence the state tendered.
THE
2
nd
RESPONDENT'S
SUBMISSIONS:
[12] The
legal representative acting on behalf of the 2
nd
Respondent submitted that the main issue is whether the 1
st
Respondent's conduct by granting a decision in favour of the
prosecution to re-open its case after the defence has closed its case
constitutes an irregularity, and whether such irregularity vitiates
the proceedings.
[13] The
2
nd
Respondent further submitted that it is common cause
that it was agreed at the pre-trial that the age of the victim was
not going
to be a dispute during the trial. It therefore follows that
what was only required to prove the age of the victim was by a mere
production of the victim's birth certificate or by
viva voce
evidence through the mother.
[14] The
2
nd
Respondent submitted. with reference to
S v Rudman:
S v Johnson: S v Xaso: Xaso v Van Wyk NO & Another
1989 SA 368
(E),
that the right to a fair trial is not the test of an
irregularity or illegality. The enquiry is whether there has been an
irregularity
or illegality, that is, a departure from the
formalities, rules and principles of procedure according to which our
law requires
a criminal trial to be initiated or conducted.
[15] The
2
nd
Respondent further submitted that an irregularity is a
wrongful or irregular deviation from the formalities and rules of
procedures
aimed at ensuring a fair trial. It is clear from the
record that there is no indication that this evidence was
deliberately withheld
by the prosecution. In fact, the charge sheet
and proceedings held on 10 February 2021 indicates that there was no
dispute regarding
the age of the victim although this did not absolve
or exonerate the prosecution from proving the age of the victim
during the
trial.
[16] The
2
nd
Respondent further submitted that the conduct of the
1
st
Respondent was in accordance with notion and the
principles of dispensing justice. The 1
st
Respondent had
to avoid a miscarriage of justice happening in court as a judge or
magistrate is an administrator of justice and
not merely a
figurehead. A judge or magistrate does not only have to direct and
control proceedings according to recognized rules
of procedure, but
also has to see that justice is done.
[17] Counsel
for the 2
nd
Respondent, Adv. Mabapa, argued that the
Applicant will not suffer any prejudice because he in any event never
intended from the
onset to place the age of the victim in dispute. It
was submitted that the 1
st
Respondent exercised her
discretion properly and judicially and there is no irregularity that
has been committed.
[18] It
was submitted that the Applicant is charged with an offence which
makes provision for the imposition
of a sentence of life
imprisonment, should the Applicant be convicted. In the absence of
the age of the victim being proved to
being below the age of sixteen
(16) years, the Applicant may only be sentenced to a minimum of 10
years imprisonment in the
event
of conviction. There will
therefore be a serious miscarriage of justice should the matter be
allowed to continue without the age
of the victim being proven.
[19] The
Respondent submitted that they intend on calling the mother of the
victim as a witness who will
testify regarding the age of the victim.
It was argued that litigation is not a game of chess where players
outsmart themselves
by dexterity of purpose and traps. On the
contrary, litigation is a contest by judicial process where the
parties place on the
table of justice their different positions
clearly, plainly and without tricks.
[20] The
Respondent applied that the re-opening of the state's case be allowed
and further that should the
Applicant wish to challenge the evidence
and reopen his case, he be allowed to do so.
THE
LAW AND APPLICATION OF THE LAW TO THE FACTS:
[21]
Section
22(1)
of the
Superior Courts Act, 10 of 2013
stipulates as
follows:-
"{1) The
grounds upon which the proceedings of any Magistrate's 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 officer;
(c)
gross
irregularity;
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible evidence."
[22] The
question to be answered in the present proceedings is whether the 1
st
Respondent's decision to allow the 2
nd
Respondent to
re-open its case after the defence has closed his case constitutes a
gross irregularity and whether such irregularity
vitiates the
proceedings.
[23]
In
S v Ndweni
& Others
1999 (2) SACR 225
(SCA) at 227E
the
following was said:-
"An
application seeking to re-open
a
case and
lead further evidence will generally be required to satisfy the
following requirements:
(a)
There should be some reasonably sufficient explanation, based on
a/legations which may be true, why the evidence which it is
sought to
lead was not led at the trial.
(b)
There should be a prima facie likelihood of the truth of the
evidence.
(c)
The evidence should be materially relevant to the outcome of the
trial."
[24]
The
court a
quo
may in the
exercise of its discretion and at any stage of the proceedings, grant
leave to a party to the proceedings to re-open
its case. The State in
providing its reasons for the reopening of the State's case stated
that there was an unintentional "mistake"
on the
prosecutor's part to hand in the birth certificate of the victim. The
State submitted that they only realized during preparation
for
argument going through his notes that he omitted to prove the
victim's age. According to the prosecutor this evidence was omitted
through mere inadvertence.
[25]
Although
it might be true that the prosecutor failed to lead evidence on the
victim's age due to an unintentional "mistake"
or
inadvertence, it cannot be said that the prosecutor only realized
when preparing for argument that this material evidence was
not led.
[26]
The
court a
quo
on the 6
th
of April 2022 in questions put by the court to the Applicant, asked
the following questions:-
"Court:
Sir, you had two
biological children with your wife?
Accused:
Court: Accused: Court: Accused: Court: Accused: Court: Accused:
Court:
Accused:
Yes.
The
ex-wife, the ex-wife, sorry. Yes.
You
said the eldest was born in 2004. Correct.
The
younger
one? 2007
M[...]?
I
am
not
sure whether it is 2000 or 2001.
And
by the time you married your ex-wife, how old was M[...]?
Around
2-years, Your Worship."
[27] The
court a
quo
then went further during the arrangement for
postponement for argument by the parties, said the following:-
"Before
I
am
going
to stand the matter down I want to know, does the State have
a
birth
certificate of the complainant? Will there be an objection of the
defence if that birth certificate may be handed in?"
[28] The
prosecutor should therefore have realized already on the 6
th
of April 2022 that there was an issue with the victim's evidence and
that it had not been proven, alternatively had not been proven
sufficiently. The omission by the prosecutor can, however, not be
said to be deliberate.
[29] The
evidence of the mother, the state intends on leading, is most likely
true and in respect of the birth certificate
to be handed in - there
can be no doubt that it is indeed true in respect of the date of
birth of the victim. This evidence is
indeed material and of extreme
importance to the present matter especially when it comes to
sentence.
[30] It
is common cause that the Applicant will suffer prejudice if the
evidence is called in that in the event of conviction,
instead of a
10 years minimum sentence, he will be facing a sentence of possible
life imprisonment. However, the victim's Constitutional
Rights and
prejudice to be suffered, as well as the interest of justice, must
also be considered in weighing up the prejudice to
be suffered. The
Applicant knew from the onset that the charges leveled against him
were that he raped and/or sexually assaulted
a child below the age of
16 years old. This was also not put in dispute during the pre-trial
conference according to the parties'
submissions.
[31]
During the State's case, the Doctor testified that the victim was
approximately 12 years old. The victim was born on 19 April
2001 and
the sexual assault started according to the general history on the
J88 in March 2013. This was not disputed or put in
dispute by the
Applicant or the Applicant's legal representative in
cross-examination and therefore stands uncontested.
[32] Also
the Clinical Psychologist, Mrs. Madiba testified that the victim was
born on 19 April 2001 and
the incidents happened during 2013 when she
was 12 years old. This was also not disputed by the Applicant
(Defence) in cross-examination.
Mrs. Madiba's report was further
handed in as an exhibit by consent between the parties.
[33] In
cross-examination, the Applicant's legal representative also put a
question to Ms. Mathebe, a professional
nurse and friend of the
victim's family in terms whereof it was clear that the Defence did
not dispute that the child's age is
below 16 years of age. The
question was as follows:
"And with the little experience
that you have given before this Court, about the first encounter in
sexual intercourse, for
a
grown up man of the accused,
vis-a-vis
a
child of 11, obviously the child should be injured
on her genetalia?"
[34] In
examination in chief, the Complainant testified that she was born on
19 April 2001. Mr. Mathebula,
on behalf of the Applicant in
cross-examination of the Complainant (victim) also put to the victim
the following:-
"MR
MATHEBULA:
2008, you were seven years of age?
MS.
MOTHATA:
Yes"
[35] Although
the Applicant never formally admitted the age of the victim, it is
abundantly clear from the
above that the Applicant never disputed or
intended to dispute the victim's age.
[36] The
Applicant himself testified during his examination in chief that the
victim was about 2 years old
when he became involved with her mother.
They were married around 2005 after the birth of his first born child
with the mother
of the victim. The Applicant further testified in
examination in chief that the victim was attending primary school in
Seshego.
Under cross-examination, the Applicant himself testified
that the children were all minors and were sleeping on the floor.
[37] The
court's questions put to the Applicant, as quoted here above, can
therefore not be seen to amount
to cross-examination of the
Applicant, and were indeed clarity seeking questions. The court a quo
did not infringe on the Applicant's
rights to a fair trial and did
not descend into the arena with the questions asked to the Applicant.
[38] That
a trial court has a general discretion in both civil and criminal
cases to reopen it and to lead
evidence at any time up to judgment is
beyond doubt. The proper approach is that the Court's discretion
should be exercised judicially
upon a consideration of all the facts
of each particular case, having due regard to the consideration
mentioned in the cases and
applying them as guidelines and not as
inflexible rules. In
Mkwanazi v Van der Merwe and Another 1970
(1)SA 609 (A), Holmes JA
stated the correct approach thus at
616B-D
is:-
"lt
is inappropriate for judicial decision to lay down immutable
conditions which have to be satisfied before the relief sought
can be
granted. Over the years the Courts have indicated certain guiding
considerations or factors, but they must not be regarded
as
inflexible
requirements, or
as
being
individually decisive. Some are more cogent than others; but they
should all be weighed in the
scales,
the pros
against the cons."
[39] The
evidence the State intends on leading cannot be said to supplement
the State's case. It is however in the interest
of justice that
certainty be obtained in respect of the victim's age.
CONCLUSION:
[40] Having
considered all the above facts and factors, it cannot be said that
the court
a quo
misdirected itself in allowing the prosecution
to reopen its case. The ruling to reopen the state's case before
argument in the
present matter does not constitute an irregularity in
such a sense that it vitiates the proceedings. In the result the
review application
stands to be dismissed.
[41] In
the result this court makes the following order:-
1. The
application is dismissed.
2. The
matter is referred back to the Magistrate's Court, Seshego, for
finalization of the trial without
any further delay.
M.
NAUDE-ODENDAAL
JUDGE
OF LIMPOPO DIVISION OF
THE
HIGH COURT,
POLOKWANE
I
AGREE:
M.G.
PHATUDI
JUDGE
PRESIDENT OF
THE
LIMPOPO DIVISION OF
THE
HIGH COURT,
POLOKWANE
APPEARANCES:
HEARD
ON:
01 DECEMBER 2023
JUDGMENT
DELIVERED ON: 26 FEBRUARY 2024
For
the Applicant: Mr. D.J. Nonyane and/or Mr. M.P. Legodi
Instructed
by: Legal Aid South Africa, Polokwane
For
the 1
st
Respondent: None on record.
For
the 2
nd
Respondent: Adv. T.E. Mabapa and/or Adv. M
Ratshibvumo
Instructed
by: The Director of Public Prosecutions, Polokwane