S V Kototsi and Others (103/03) [2003] ZANWHC 34 (11 July 2003)

S V Kototsi and Others (103/03) [2003] ZANWHC 34 (11 July 2003)

The conviction of accused 3 was based solely on a pointing out made under threat and assault, which was not in accordance with Section 218 of the Criminal Procedure Act and was not made freely and voluntarily. The Magistrate conceded that there was no other evidence connecting the accused to the commission of the offence. South African law requires that evidence of a pointing out must be voluntary and free from coercion to be admissible. The absence of any other evidence means the conviction cannot stand. The delay in the review process resulted in the accused serving a sentence that should not have been imposed, constituting a grave injustice. The conviction and sentence must be set aside.

Citation
[2003] ZANWHC 34
Parties
Applicant: The State; Respondent: Johannes Kototsi; Respondent: Tshepo Motlhabane; Respondent: Mathews Matlapeng
Court
North West High Court, Mafikeng
Jurisdiction
South Africa
Judgment Date
11 July 2003
Case Number
103/03
Procedural Posture
Review Application / Automatic Review From Magistrate's Court
Outcome
Conviction and sentence set aside.
Judges
R.D. Hendricks
Legal Topics
Housebreaking With Intent to Steal, Theft, Pointing Out Evidence, Admissibility of Confession, Correctional Supervision
Criminal Law Housebreaking With Intent to Steal Theft Pointing Out Evidence Admissibility of Confession Correctional Supervision

Case Brief

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Parties

The State

Applicant

Johannes Kototsi

Respondent

Tshepo Motlhabane

Respondent

Mathews Matlapeng

Respondent

Procedural Posture

Review Application / Automatic Review From Magistrate's Court

Legal Issues

  1. 1 Whether the pointing out by the accused was in accordance with the provisions of Section 218 of the Criminal Procedure Act.
  2. 2 Whether there was any other evidence besides the pointing out connecting the accused to the commission of the offence.
  3. 3 Whether the conviction and sentence were justified in the absence of admissible evidence.

Ratio Decidendi

The conviction of accused 3 was based solely on a pointing out made under threat and assault, which was not in accordance with Section 218 of the Criminal Procedure Act and was not made freely and voluntarily. The Magistrate conceded that there was no other evidence connecting the accused to the commission of the offence. South African law requires that evidence of a pointing out must be voluntary and free from coercion to be admissible. The absence of any other evidence means the conviction cannot stand. The delay in the review process resulted in the accused serving a sentence that should not have been imposed, constituting a grave injustice. The conviction and sentence must be set aside.

Court Disposition

Conviction and sentence set aside.

Orders

  • The conviction and sentence is set aside.