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2024
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[2024] ZAGPPHC 679
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S v Mokoane and Others (CC65/19) [2024] ZAGPPHC 679 (19 July 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: CC65/19
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
DATE:
19 July 2024
SIGNATURE
In
the matter between:
THE
STATE
And
KGAUKGELO
GODFREY MOKOANE
Accused No 1
SELLO
BRADLEY SENYATSI
Accused
No 2
BOITUMELO
DANIEL APHANE
Accused No 3
LUCAS
MUDAU
Accused No 4
KABELO
MASEMOLA
Accused No 5
PITSO
STEVEN
KGOTSANE
Accused No 6
JUDGMENT
LUKHAIMANE
AJ
1.
The accused were arraigned before this court
on multiple counts of
aggravated robberies, murder, attempted murders, kidnappings,
unlawful possession of firearms, unlawful possession
of ammunition,
malicious damage of property, conspiracy, endangering life or
property and money laundering. The charges stem from
two incidents;
one on 6 November 2017 at a Total Garage in KwaMhlanga and another on
20 December 2017 at Eersterus. Accused no
6 jumped bail and his trial
was separated from the others. Accused no 2 applied to be a section
204 witness. Accused no 1, 3, 4
and 5 pleaded not guilty to all
charges preferred against them. Accused no 4 has since passed on.
Accused no 5 made use of his
right to silence.
2.
The State presented its case, calling several
witnesses and
thereafter closed the case for the prosecution. At the close of
the case for the prosecution, accused no 5,
Kabelo Masemola, applied
to be discharged in terms of section 174 of the Criminal Procedure
Act 51 of 1977 (“the CPA”)
on all the charges. All the
accused were legally represented throughout the proceedings even
though legal representation for accused
no 1 changed during the
trial.
3.
Section 174 of the CPA provides for the consideration
of a discharge
of an accused person after the case for the prosecution has been
closed and reads as follows:
“
If at the close of
the case for the prosecution at any trial; the court is of the
opinion that there is no evidence that the accused
committed the
offence referred to in the charge or any offence of which he may be
convicted on the charge, it may return a verdict
of not guilty.”
4.
It is on the basis of these provisions that
accused no 5 has moved
his application.
The
evidence of the state against accused no 5.
5.
Accused no 5 has been charged on all the counts
that the state
alleges, were committed by some or all the accused. He applied for a
discharge in respect of all the charges. The
State did not oppose the
application.
6.
Evidence was led in the main trial and a trial
within a trial to
determine the admissibility of confessions and pointing out allegedly
done by the accused. This court has already
ruled that the alleged
pointing out by accused no 5 should be excluded.
7.
For purposes of this application, it is not
necessary to repeat any
of the State’s evidence in specificity. It suffices to state
that the section 204 witness, accused
no 2 on the indictment,
testified on his involvement in the commission of the alleged
offences. His evidence did not mention accused
no 5 at all. No other
State witness made any mention of accused no 5. In addition, the
section 205 evidence regarding Vodacom cellular
telephone data and
records did not link accused no 5 to any of the other accused nor to
any of the crime scenes.
8.
Section 219 of the CPA states as follows:
“
No confession made
by any person shall be admissible against another person.”
The
law favours a strict interpretation of these provisions. Therefore,
any extra-curial confession made by any of the co-accused
cannot be
admitted as evidence against an accused.
9.
It is trite
that once an accused pleads to the charges, the case can no longer be
withdrawn, and the accused must be acquitted if
the evidence falls
below the minimum threshold for charging him in the first place. In
accused no 5’s case, it is not even
an issue of evidence having
been led and evaluated by this court and found to be weak for a
conviction. It is an issue of no evidence
being led at all. It is as
if the state forgot that accused no 5 was there. Accused no 5 was
forced to plead in circumstances where
the State ought to have known
that there was no evidence at all
[i]
.
10.
In the result, accused no 5’s application must succeed.
11.
I therefore make the following order:
11.1
The application by accused no 5 to be discharged in terms of section
174 of the CPA on all counts, is granted.
M
A LUKHAIMANE
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Appearances:
Counsel
for the State:
Adv. MM Mashuga
Counsel
for Accused no. 1 and 3:
Adv.
OKK Matshego
Counsel
for Accused no. 5:
Mr.
Francois Joubert
Heard
on:
18
July 2024
Delivered
on:
19
July 2024
[i]
See S v Molimi (CCT 10/07)
(2008) ZA CC 2
; 2008(3) SA 608 CC;
2008(2) SACR 76 CC; 2008(5) BCLR 451 (CC) (4 March 2008)