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

DISTRIBUTABLE CA NO.103/03

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

VA

JOHANNES KOTOTSI & 2 OTHERS

REVIEW JUDGMENT

HENDRICKS AJ:

This matter came before me as an automatic review from the Mankwe Magistrate’s Court. The three accused persons, Johannes Kotosti, Tshepo Motlhabane and Mathews Matlapeng were charged with the offence of housebreaking with intent to steal and theft.

It was alleged that on the 13th day of March 2001 they broke and entered into the pub of Jacob Lephofo and stole a lot of liquor, an electric kettle , a lawn mower and cold drinks.

To this charge, all three (3) accused pleaded not guilty and they deny their involvement in the commission of this offence.

The State led the evidence of the complainant Jacob Lephoto. It is clear from his evidence that after he discovered that his pub (tavern) was broken into and that some of the articles were removed, he conducted his own investigation. He received information that led him to accused 1. Who was incidentally in the company of accused 2. The proceeded to the scene of crime where accused 1 allegedly gave him some information. This witness testified that:

“He (accused 1) uttered this information after I had threatened to assault him”.

On the strength of information received by this witness, Accused 3 was also apprehended. Some of the articles that the complainant missed were recovered as a result of assaults and threats perpetrated on the three (3) accused persons.

During cross-examination by accused 3, the following transpired;-

“X” You took a snooker stick, together with Mountain and you both hit me therewith

A. Correct we took the pool stick, it was then that you told us of the machine. We then left”.

The Court also put some questions to the complainant and the following appears on record:-

“X” So the accused were assaulted?

Correct

X Did you also take part in assaulting any of them? I only assaulted accused 3. At what stage? After I had recovered my kettle. In fact after I found him at Dossy’s place we drove to his place. How did you assault him? I can no longer remember. X. Why did you assault him? I was angry because he was denying that the kettle was brought by him at his parental place. About the pointing out, how did it come about that accused 3 lead you to the pointing out? When we arrived at my tavern we armed ourselves with poo sticks, accused 3 then volunteered to point the mower for us”. Joseph Modise, a Sergeant in the SAPS also testified. According to him he was at home when the Complainant made a report to him about the burglary.

He then drove to Complainant’s tavern where he found the three accused persons, the lawn mower, electric kettle and an assortment of wine bottles. According to him, when he questioned the three accused, they denied their involvement in the commission of this offence.

This witness testified that he did not accompany the complainant when he recovered these articles. The State closed its case and the three accused also closed their cases without testifying. The Magistrate acquitted accused 1 and 2 and convicted accused 3 on the charge of housebreaking with intent to steal and theft. He sentenced accused 3 to twelve (12) months of Correctional Supervision with certain conditions attached thereto in terms of Section 276 A (1) (a) of the Criminal Procedure Act. This sentence was imposed on the 5th October 2001.

X Did you also take part in assaulting any of them?

I only assaulted accused 3.

At what stage?

After I had recovered my kettle. In fact after I found him at Dossy’s place we drove to his place.

How did you assault him?

I can no longer remember.

X. Why did you assault him?

I was angry because he was denying that the kettle was brought by him at his parental place.

About the pointing out, how did it come about that accused 3 lead you to the pointing out?

When we arrived at my tavern we armed ourselves with poo sticks, accused 3 then volunteered to point the mower for us”.

Joseph Modise, a Sergeant in the SAPS also testified. According to him he was at home when the Complainant made a report to him about the burglary.

He then drove to Complainant’s tavern where he found the three accused persons, the lawn mower, electric kettle and an assortment of wine bottles. According to him, when he questioned the three accused, they denied their involvement in the commission of this offence.

This witness testified that he did not accompany the complainant when he recovered these articles.

The State closed its case and the three accused also closed their cases without testifying.

The Magistrate acquitted accused 1 and 2 and convicted accused 3 on the charge of housebreaking with intent to steal and theft. He sentenced accused 3 to twelve (12) months of Correctional Supervision with certain conditions attached thereto in terms of Section 276 A (1) (a) of the Criminal Procedure Act. This sentence was imposed on the 5th October 2001.

When this review initially came before my Sister Leeuw J on 12 November 2001, she raised with the Magistrate the following questions:- whether the pointing out by the accused was in accordance with the provisions of Section 218 of the Criminal Procedure Act and, Is there any other evidence besides the pointing out, connecting the accused to the commission of the offence? This query by my Sister Leeuw J is dated 15 November 2001. It is only on the 03rd July 2003, more than nineteen (19) months later that the Magistrate responded to this query. In his Reasons dated 13th June 2003, the Magistrate conceded that the pointing out was not in accordance with the provisions of Section 218 of the Criminal Procedure Act and that there is no other evidence connecting the accused to the Commission of the offence. In S v Sheehama [1991] ZASCA 45; 1991 (2) SA 860 (A) on page 879 B the following is stated:- “  Aanwysing is in wese  mededeling deur gedrag en as sodanig  verklaring van die persoon wat iets aanwys”. And further on the same page against the letter H:- “ Na my oordeel kan  aanwysing in  gepaste geval dus wel  buitegeregtelike erkenning wees, en as sodanig moet dit in die lig van die gemene reg, soos bevesting deur die bepalings van art 219A van die Strafproseswet, ongedwonge en vrywilliglik geskied”.

When this review initially came before my Sister Leeuw J on 12 November 2001, she raised with the Magistrate the following questions:-

whether the pointing out by the accused was in accordance with the provisions of Section 218 of the Criminal Procedure Act and,

Is there any other evidence besides the pointing out, connecting the accused to the commission of the offence?

This query by my Sister Leeuw J is dated 15 November 2001.

It is only on the 03rd July 2003, more than nineteen (19) months later that the Magistrate responded to this query.

In his Reasons dated 13th June 2003, the Magistrate conceded that the pointing out was not in accordance with the provisions of Section 218 of the Criminal Procedure Act and that there is no other evidence connecting the accused to the Commission of the offence.

In S v Sheehama [1991] ZASCA 45; 1991 (2) SA 860 (A) on page 879 B the following is stated:-

“  Aanwysing is in wese  mededeling deur gedrag en as sodanig  verklaring van die persoon wat iets aanwys”.

And further on the same page against the letter H:-

“ Na my oordeel kan  aanwysing in  gepaste geval dus wel  buitegeregtelike erkenning wees, en as sodanig moet dit in die lig van die gemene reg, soos bevesting deur die bepalings van art 219A van die Strafproseswet, ongedwonge en vrywilliglik geskied”.

On page 880 H - 881 D, the following is stated:

“ Na my oordeel was dit nooit die bedoeling van die Wetgewer in art 218(2) om getuienis van aanwysings wat andersins ontoelaatbaar is, toelaatbaar te maak sodra sodanige aanwysings deel uitmaak van  ontoelaatbare bekentenis of verklaring nie. Die artikel bepaal dat getuienis van  aanwysing toegelaat kan word as dit deel uitmaak van  ontoelaatbare bekentenis of verklaring, en nie dat dit toegelaat moet word nie. Deur gebruik te maak van die woord kan het die Wetgewer juis die moontlikheid oopgelaat dat getuienis van  aanwysing om gegronde redes geweier kan word, selfs al maak die aanwysing deel uit van  ontoelaatbare bekentenis of verklaring. Daardeur wil ek nie te kenne gee dat die artikel  diskresie aan die hof verleen om getuienis van  aanwysing toe te laat of te weier nie (soos beslis in S v Mmonwa 1990(1) SA 81 (T) te 85E - I, en waarmee ek met respek nie saamstem nie), maar dat die hof getuienis van  aanwysing kan weier omdat dit om gegronde redes ontoelaatbaar is. So gesien, bepaal die artikel dus dat getuienis an  aanwysing wat andersins toelaatbaar is, nie ontoelaatbaar sal wees bloot omdat die deel uitmaak van  ontoelaatbare betekenis of verklaring nie. Anders gestel: wanneer getuienis van  aanwysing andersins ontoelaatbaar is, sal dit nie toelaatbaar wees bloot omdat dit deel uitmaak van  ontoelaatbare bekentenis of verklaring nie.

Indien dit in gedagte gehou word dat  kernbeginsel van ons reg is dat  beskuldigde nie gedwing kan word om selfbeswarende verklarings teen sy wil te maak nie, is dit na my oordeel inherent onwaarskynlik dat die Wetgewer, met die oog op gesonde regsbeleid, ooit die bedoeling kon gehad het om getuienis van gedwonge aanwysings ingevolge art 218(2) en sy voorgangers te magtig.

Getuienis van  aanwysing kan om verskillende redes ontoelaatbaar wees. Die voor-die-hand-liggende rede is myns insiens wanneer die aanwysing (in die sin van  buitegeregtelike erkenning) onder dwang of nie vrywilliglik gedoen is nie”.

In the book entitled Hiemstra: Suid-afrikaanse Strafproses, Vyfde uitgawe by Kriegler, the following is stated on page 562:-

“ Voorts word steun verleen aan die beginselstelling in R v Camane and Others 1925 AD 570, 575 dat  beskuldigde nie verplig kan word om, hetsy mondeling hetsy skriftelik het sy met gebare of tekens, getuienis teen homself te verskaf nie”.

See also:- S v January; Prokureur-Generaal, Natal v Khumalo 1994 (2) SACR 801 (A).

The pointing-out made by accused was therefor not made freely and voluntarily and ought to have been rejected as evidence by the Magistrate. The Magistrate misdirected himself in convicting the accused on the strength of the pointing-out, in absence of any other evidence proving the guilt of the accused beyond reasonable doubt. The conviction and sentence must be set aside.

REMARKS

I must remark on the substantial delay in sending this matter on review and answer to the query. The accused was sentenced on the 5th October 2001 but the matter was only received by the Registrar on the 13th November 2001. More than a month had lapse before the matter could be send for review. My sister Leeuw J. directed a query two days later (15 November 2001) to the Magistrate.

The Magistrate only responded to the query in a document entitled “Reasons” dated 13th June 2003 which landed on my desk on 03 July 2003 (more than nineteen (19) months later).

The accused was sentenced to twelve (12) months Correctional Supervision and must by now, have served his sentence in full, when he ought not to have served the sentence at all. It is regrettable that such a long delay caused such a great injustice to the accused person. It is the responsibility of the Magistrate to see to it that a matter is send on review to the Registrar of the High Court within the specified time period. Too often than not, review matters are send late and it causes great concern that it sometimes result in an injustice to the accused. Unnecessary delays in sending matters on review should be avoided at all cost.

ORDER

In conclusion, I make the following order:-

The conviction and sentence is set aside.

R.D. HENDRICKS

ACTING JUDGE OF THE

HIGH COURT

DATED: 10 JULY 2003