IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
In the matter between
ARTHUR ITUMELENG MOGAECHO
and
THE STATE
Coram: MHLAMBI ADJP, VAN RHYNJ
Heard: 27 JANUARY 2025
Delivered: 24 APRIL 2025 Not reportable
Case no: A47/2022
APPELLANT
RESPONDENT
Summary: Criminal Law and Procedure -appeal -separation of trials in terms of
s 157(2) of the Criminal Procedure Act 51 of 1977 -grounds for application not
disclosed -only ground was that an agreement reached with the prosecution -
contents of such agreement not to be disclosed- separation of trials prejudicial
to appellant -trial not conducted in accordance with the notion of basic fairness
and justice -unfair trial -incomplete record on appeal -principles restated.
ORDER
1. The appeal against the conviction and sentence are upheld.
2. The accused is acquitted and discharged .
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JUDGMENT
Van Rhyn J (Mhlambi ADJP concurring)
[1] The appellant, Mr Arthur ltumeleng Mogaecho, was convicted on 21 February
2013 in the Regional Court held at Botshabelo on 14 counts of Fraud (counts 1, 3, 4,
10, 12, 13 and 20 up to and including 27). He was acquitted on counts 2, 6, 7, 8, 9, 11,
14, 15 ,16, 18 and 19. He was sentenced to six years direct imprisonment. Leave to
appeal the conviction and sentence was granted by the Regional Court Magistrate on
20 October 2020. The matter was enrolled for the hearing of the appeal on 21
November 2022 but was postponed for, inter alia, reconstruction and pagination of the
incomplete record. The appeal was thereafter postponed on numerous occasions and
when the matter was eventually heard on 27 January 2025, the record pertaining to
the sentencing procedure had been supplemented by the court a quo without any input
by the appellant. However, the record pertaining to the merits as well as the sentencing
proceedings were still incomplete. To understand how the above scenario unfolded it
is necessary to consider a synopsis of the history.
[2] The appellant was employed as a Public Prosecutor with the National
Prosecution Authority stationed at Botshabelo Magistrates' Court, Free State Province.
The appellant made his first appearance in court on 31st of July 2002 subsequent to
his arrest on 30 July 2002. According to the charge sheet he was 28 years old at the
time. Initially five accused stood_ trial on 27 charges of fraud, alternatively, 23 charges
of theft, being the appellant who appeared as accused 1, accused 2 an interpreter,
accused 3 and 5, both court orderlies and accused 4, a clerk employed at the Office of
the Clerk of the Court, all of whom were so employed at the Botshabelo Magistrates'
Court. On his first appearance the appellant was remanded in custody whereafter he
was remitted to bail on the 8th of August 2002. The trial against the appellant and his
co-accused commenced 21 June 2004 and the appellant's bail has been extended
ever since.
[3] The appellant pleaded not guilty to all the charges as well as the alternative
charges levelled against him and refrained from making any plea explanation in
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accordance with the provisions of s 115 of the Criminal Procedure Act 51 of 1977 ('the
CPA') In this regard it is apposite to mention that his co-accused also pleaded not guilty
to all the charges and the alternative charges and similarly did not provide any plea
explanation . The State presented the testimonies of approximately 32 witnesses
whereafter the appellant testified in his defence. Numerous exhibits, consisting of
documentary evidence, were handed in during the trial. On 15 February 2005, during
the course of the State's case, the prosecutor, Mr Botha, indicated to the court that
having heard the testimony of the only witness who could possibly connect accused 5
with the commission of the offences, the evidence tendered by the particular witness
failed to link accused 5 with the charges against him and he therefore requested the
presiding magistrate to find the said accused not guilty. As a result, accused 5 was
found not guilty and discharged.
[4] After conclusion of the case for the prosecution all the remaining accused,
including the appellant, brought applications for discharge in terms of the provisions of
s 174 of the CPA. On 7 June 2005 the applications by the remaining accused were
denied. However, the appellant and his co-accused were acquitted in respect of count
17. During the course of the trial, the appellant twice applied to the Free State High
Court for review of the criminal case against him. (Case no.: A413/2007 and
A168/2016) Both review applications were dismissed . Leave to appeal to the Supreme
Court of Appeal was granted in respect of Case No.: A168/2016. The outcome of the
second application for leave to appeal is not clear from the record, but it is assumed
that the application was unsuccessful. In any event the trial continued .
[5] At the commencement of the trial the appellant was legally represented by an
attorney. However, during the trial, which lasted approximately nine years, his attorney
withdrew as his legal representative whereafter the appellant appeared in person. At
the hearing of the appeal the appellant again appeared in person. The appellant's co
accused were represented by attorneys at the commencement of the trial. However,
during the trial the attorneys withdrew and were substituted by other legal
representatives.
[6] The charges preferred against the appellant and his former co-accused all stem
from incidents which transpired following the issuing of so called 'J534' forms (also
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known as Written Notice to Appear or a Notice of Intention to Prosecute) in relation to,
inter alia, less serious traffic related offences. The J534 allow an individual to admit
guilt and pay a fine instead of appearing in court. From the contents of Schedule A,
appended to the charge sheet, it is evident that these incidents occurred during the
period April 2002 to June 2002. The State alleged that the appellant together with the
co-accused acted in the execution of a common purpose to commit the offences of
fraud, alternatively theft and entered into an agreement or engaged in an arrangement
or transaction amongst themselves to defraud or steel money from members of the
public who made representation .for the reduction of fines on the J534 forms as well
as steeling from members of the public issued with such fines who were desirous to
make such acknowledgment of debt payments at the Botshabelo Magistrates' Court.
[7] The evidence tendered by the State indicates that after being issued with a
J534 upon which an amount is indicated which could be paid prior to the trial date,
which date also appears on the said document, the complainants approached the
Botshabelo Magistrates' Court with the view of making representations for the amount
to be reduced. They then came across personnel at the court, in numerous cases
referred to as policeman wearing a uniform and also other employees , who assisted
them by informing them that the amount had been reduced from, for example R300 to
R200 or R150. After payment of such reduced amount the complainant left without
being issued with a receipt only to be summoned to court at a later stage, after a
warrant was issued, on the basis that no payment was received as alleged by the
complainant. Due to the numerous complaints, all of a similar nature that payments
were indeed made subsequent to the amounts being reduced at court, investigations
were conducted which resulted in the arrest of the appellant and his co-accused.
[8] During the proceedings and after the appellant had presented his testimony in
chief and while under cross examination, accused 3's legal representative applied for
the separation of trials in terms of the provisions of s 157(2) of the CPA. Accused 2
and accused 4 also made such applications which applications were not opposed by
the prosecution. On 12 August 2010 the presiding magistrate granted the application
for separation of trials and the matter continued against the appellant as the only
remaining accused. The appellant, at this stage appearing in person, made a
successful application to recall some of the witnesses who had already testified and
5
the matter proceeded until judgment was pronounced on 18 February 2013 in terms
whereof the appellant was convicted as referred to above.
[9] The grounds upon which the Appellant's appeal against the conviction rests
can concisely be summarised as follows:
9.1 That the charge sheet read with the pre-amble to the charge sheet were legally
defective resulting in an infringement of the appellants right to be duly informed of the
charge he was called upon to face during the trial;
9.2 That the court a quo misdirected itself in convicting the appellant on the strength
of a defective charge sheet;
9.3 That the charge sheet did not contain any allegation of actual or potential
prejudice of members of the public in respect of the charges of fraud, in the absence
of which the indictment does not disclose an offence;
9.4 That the charge sheet and the pre-amble to the charge sheet, due to the
absence of an allegation of prejudice as against the Department of Justice, did not
disclose an offence committed by the appellant and furthermore the allegations made
in the pre-amble materially differ from the allegations made in the charge sheet
regarding misrepresentations made to members of the public;
9.5 In the alternative, that the charge sheet and the pre-amble to the charge sheet
lacked sufficient details so as to enable the appellant to prepare a response to the
allegations resulting in the appellant being denied a fair trial;
9.6 Regarding the averment that the appellant acted together with the co-accused
to a achieve a common purpose, the charge sheet and the pre-amble to the charge
sheet lacked sufficient detail pertaining to the role of the applicant in respect of his
actions and the facts upon which the State relies in order to establish common purpose;
9.7 The detail provided in the charge sheet and the pre-amble to the charge sheet
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lacked sufficient particularity and details pertaining to the role of each of the accused
charged by the State in that the only detail provided was in respect of the former
accused 4;
9.8 No allegation of unlawfulness is made in the charge sheet with regard to the
reduction of admission of guilt fines in respect of the fifth charge and the evidence
presented during the trial by the respondent that the appellant not being authorized to
receive unwritten representations amounted to trial by ambush and infringed the
appellant's right to a fair trial;
9.9 The court a quo misdirected itself by drawing an inference that the appellant
acted in common purpose with his former co-accused in defrauding the public and/or
the Department of Justice having regard to the testimony of the witnesses who did not
implicate the appellant per seas one of the persons who accepted money from them;
9.10 The court a quo erred in finding that the State has proved the guilt of the appellant
beyond reasonable doubt.
[1 O] The appellant's grounds of appeal in respect of the sentence of six years
imprisonment can concisely be summarised as follows:
10.1 Due to the record pertaining to sentencing not being available, the presiding
magistrate was contacted to reconstruct the record. Such reconstruction occurred
. .
without the input of the appellant and the representative of the State, Mr Strauss. The
failure of the presiding magistrate to invite the input of the appellant to the
reconstruction of the sentencing proceedings has violated the applicant's right to a fair
appeal process;
10.2 The reconstructed sentencing proceedings do not include the evidence of the
Probation Officer's and the Correctional Officer's Reports as well as the evidence
adduced during the trial in mitigation by, inter alia, the appellant;
10.3 The court a quo misdirected itself in finding that the appellant failed to show any
remorse when such was clear from the reports filed by the Correctional Officer and
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Probation Officer;
10.4 The sentence imposed upon the appellant is shockingly inappropriate;
10.5 The court a quo over emphasized the seriousness of the offence and the interest
of the society at the expense of the personal circumstances of the appellant.
[11] Section 35(3) of the Constitution entrenches the right to a fair trial. Section
35(3)(d) of the Constitution provides as follows: 'Every accused person has the right to a
fair trial, which includes the right-(d) to have their trial begin and conclude without
unreasonable delay.' The right that a trial must begin and conclude within a reasonable
time belongs to all the parties, in other words, to the appellant, his co-accused, and to
the State. The law must be applied equally to those who are involved in any case. In
Sanderson v Attorney-General Eastern Cape 1998 (1) SACR 227 (CC), the court held
that it is by no means only the accused who has a legitimate interest in a criminal trial
commencing and concluding reasonably expeditiously. It remains an established
principle that the public interest is served by bringing litigation to finality.
[12] The trial commenced on 21 June 2004 and the proceedings against the
appellant were concluded when he was convicted on 21 February 2013 and sentenced
some time later. The reconstructed record pertaining to the sentencing proceedings do
not specifically reflect the date of sentencing the accused. By simply looking at the
time that has elapsed since the trial commenced until conviction of the appellant, it is
obvious that the proceedings span a period of 9 years. It is evident from the record that
numerous incidents and, obviously at the time, quite relevant reasons caused the
multitude of postponements. Some of the postponements were due to illness and
medical procedures, some due to the unavailability of the prosecutor and many of the
postponements due to the unavailability of the legal representatives who appeared on
behalf of the accused (including the appellant) or due to applications to Legal Aid South
Africa or Legal Wise for the appointment of legal representatives to proceed with the
trial.
[13) An application for separation of trials was brought by the co-accused of the
appellant in terms of Section 157 of the CPA. This section provides that:
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'157(2) Where two or more persons are charged jointly, whether with the same offence or
with different offences, the Court may at any time during the trial, upon the application of the
prosecutor or of any of the accused direct that the trial of one or more of the accused shall be
held separately from the trial of the other accused, and the Court may abstain from giving
judgment in respect of any of such accused.'
[14] When accused 3's attorney applied (from the bar and in absence of any
evidence on oath) for a separation of trials he indicated that he wishes not to disclose
the reason for the application but that it would be prejudicial for accused 3 to remain
an accused before the court. It was furthermore contended that it would be in the
interest of justice to grant the application for separation . The legal representative who
appeared on behalf of accused 2 and accused 4 then similarly applied for a separation
of trials from the case against the appellant. The reason for the application was that an
agreement was concluded with the prosecution, the content of which may not be
disclosed . The appellant, clearly being surprised by the events and the application,
requested an adjournment to consider the implications of the application for separation
of trials by his co-accused. The appellant mentioned that he will have to consider the
application, more particularly the aspect that the court was not informed about the
exact reason or grounds for the application for separation .
[15] When the matter resumed the following day, the appellant relayed his
disappointment with the fact that the presiding magistrate failed to advise him regarding
the implications of an application for separation of trials mainly because he is an
undefended accused and he specifically requested clarity from the court and an
explanation of the implications if such a separation of trials is granted. The appellant
then voiced his concerns that when the attorney who appeared on behalf of accused
2, Mr Kgwale, applied for the separation of trials, the prosecutor spoke to Mr Kgwale
and according to the appellant ' ... I do not know whether he was coaching Mr Kgwale
or what exactly was he doing at that very moment ... ', which the appellant mentioned
on the basis that it appeared as if the prosecutor interrupted the said Mr Kgwale's
address in regards the application . The appellant placed his concerns on record that
the exact reason(s) for the .application for separation by his co-accused was not
advanced in support of the application . He contended that he was unable to determine
how a separation of trials will affect him and whether it will be prejudicial to him or not.
9
The appellant then raised a crucial aspect namely, how will the court be able to
adjudicate upon an application for separation of trials if the grounds for such an
application is not disclosed . The presiding magistrate merely replied that the reason
for the application has not been disclosed because it might possibly be to prevent any
perception of bias.
[16] The appellant disclosed that he learned, during the postponement the previous
day, that accused 3 intends to tender a plea of guilty to some of the charges and that
a similar offer was made to him by the prosecutor. The appellant was then interrupted
by the prosecutor who objected to the information being placed on record on the basis
that any discussions on this topic were not meant to be revealed to the court. The
appellant clearly insisted that he is being prejudiced due to the fact that he does not
know what the basis for the application for separation of trials is. The presiding
magistrate subsequently granted the application for separation of trials in terms of the
provisions of s 157(2)of the CPA without the reason for the application for separation
of trials being disclosed by any of the appellant 's co-accused and based solely on the
contention that an agreement was reached between the co-accused and the State.
[17] The decision as to whether to grant a separation of trials is a discretionary one.1
A court may also of its own accord raise the issue of a separation .2 It is trite that society
requires that joint offenders be tried together, as separate trials invariably lead to a
waste of State resources . Multiple trials ought therefore to be avoided where possible.
The principle test in deciding whether to grant an application for separation is whether
it is probable (not merely possible) that the applicant(s) will suffer prejudice if a joint
trial takes place.3 At the end of the day, the question to be answered is whether
separation will be in the interests of justice.
[18] The application for separation of trials was brought on 11 August 2010. It has to
be kept in mind that the trial commenced on 21 June 2004, thus more than six years
after commenc ement of the trial. The State presented the evidence against all the
accused on the basis that that they acted together in association and participation in a
1 R v Bagas 1952 (1) SA 437 (A).
2 5 v Ndwandw e 1970 (4) SA 502 (N).
3 5 v Witbooi & Others 1994 (1) SACR 44 (Ck).
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to exercise her discretion judicially or properly when the grounds for an application for
separation of trials have not been disclosed. There must be a probability, not the mere
possibility, of prejudice which may give grounds for separation. The evidence before
court at the time when the application for separation was heard contained evidence
implicating the appellant's co-accused. The appellant was cross-examined by the
prosecutor regarding the evidence presented by the State witnesses, also pertaining
to the conduct of his co-accused. The appellant prepared his defence to the charges
levelled against him on the basis of common purpose as per the charge sheet. When
the trials were separated, the incriminating evidence that was lead with regard to the
appellant's co-accused was and remained on record. Such evidence was eventually
used by the presiding magistrate against the appellant for his conviction on the basis
of common purpose without any of the co-accused being present to refute the evidence
against them. The appellant, having already testified in chief, would not have been able
to refute the evidence which the State witnesses adduced againts his co-accused that
the offences were all committed in the furtherance of a common purpose designed to
. fraudulently steal money from the public or the Department of Justice.
[21] In the result I am of the view that the appellant was prejudiced by the separation
of trials that was ordered approximately six years after commencement of the trial and
under circumstances where it was unclear and uncertain whether pleas of guilty, at
least in respect of some of the charges, had indeed been tendered by the appellant's
co-accused before a different magistrate.
[22] A further issue encountered in this appeal is that not only is the record in respect
of sentencing not available and was only at a later stage reconstructed by the presiding
magistrate, the record in respect of the proceedings on the merits is also incomplete .
From the record it is evident that the following sections are not available:
22.1 On 24 June 2004 the case was postponed to 1 November 2004. No record is
available for 1 November 2004. It seems as if the matter was merely postponed to the
following day, the 2nd of November 2004 because one of the legal representatives was
not available. The case was postponed to 8 November 2004.
12
22.2 From the record it appears that the next date of appearance was on 14 February
2005. The court proceedings on 8 November 2004 are not available. There is no
indication what occurred in the time between 8 November 2004 up to 14 February
2005.
22.3 In volume 2 of the record the transcriber made notes that numerous instances
occurred where the recording is inaudible due to the recording being at 'high speed',
more specifically sections of cassette 1, 2, 3 and 5.
2.4 The record resumes with the testimony of a witness, Mr Shokane on 14 February
2005 whereas the last witness who testified on 2 November 2004 was Mr Gathlake.
He was excused from further attendance. Clearly some of the evidence tendered by
Mr Shokane is not part of the transcribed record.
22.5 Volume 4 of the record seems to be a reconstruction of the record as it does not
reflect the date of hearing except that on the last page of volume 4 it is indicated that
the matter will proceed on 14 February 2005. In any event the next volume, being
volume 5 does not commence with the proceedings on 14 February 2005 but with the
testimony of J M Labuschagne on 15 February 2005.
22.6 The last page of volume 5 of the record reflects page 808, whereas the next
volume, volume 6 starts at p 811.
22. 7 On 9 March 2006 the matter was postponed to the following day being 10 March
2006. The next page in volume 8 of the record however reflects that the matter
continued on 12 March 2009. It is possible that the trial did not proceed in the period
between the previous hearing on 9 March 2006 up to 12 March 2009 due to the fact
that the appellant launched an appeal to the High Court, but it is unclear what the
situation actually was in that no record of the proceedings is available.
22.8 It furthermore is evident that the proceedings between 29 April 2010 up until 11
August 2010 has not been included in the record, neither has the proceedings in the
period 11 May 2012 up to 3 September 2012 been made available. It is therefore not
evident from the record whether the matter proceeded during these periods or not.
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[23] The constitutional right of an accused to a fair trial includes the right of appeal.5
Where an accused has the right to appeal and a missing or incomplete record makes
it impossible to consider and adjudicate such appeal, the conviction or sentence will
often be set aside. If the appeal court or the review court is not furnished with a proper
record of proceedings, then the right to a fair hearing of the appeal or review is
encroached upon and the matter cannot properly be adjudicated .6 The mere fact that
the record of the proceedings might be lost or incomplete would not, however,
automatically entitle an accused to the setting aside of a conviction or sentence . Such
relief will only be granted where a valid and enforceable right of appeal is frustrated by
the fact that the record is lost or incomplete and cannot be reconstructed . In the matter
at hand the appeal has been delayed to enable the appellant and the State to
reconstruct the record and to ensure that a properly paginated and ind~xed record of
the proceedings in the court a quo is available for the appeal.
[24] Despite numerous efforts by Mr Strauss, counsel on behalf of the respondent ,
and the appellant, and presumably due to the lapse of a considerable period of time, it
was not possible for the record to be reconstructed in fu_ll. In conclusion, I am of the
view that the trial was not being conducted in accordance with the notion of basic
fairness and justice in respect of the appellant. A separation of trials was granted at a
very late stage of the criminal proceedings without the grounds for the separation being
provided to the presiding magistrate. Eventually the appellant was convicted on certain
of the charges levelled against him, not on the evidence implicating him per se, but on
the doctrine of common purpose at a stage when his co-accused were no longer before
court to refute the evidence adduced by the State. In the result I propose the following
order:
[25] ORDER:
1. The appeal against the conviction and sentence are upheld.
2. The accused is acquitted and discharged .
s Section 35(3)(0) of the Constitution.
6 S v Sebothe and Others 2006 (2) SACR I (T) at para [8].
I concur.
On behalf of the Appellant:
On behalf of the Respondent:
Instructed by: In person
Adv. M Strauss
DIRECTOR PUBLIC PROSECUTIONS
Bloemfontein 14