S v Letokwe (638/03) [2003] ZANCHC 50 (5 December 2003)

Reportable: Yes / No

Circulate to Judges: Yes / No

Circulate to Magistrates: Yes / No

IN THE HIGH

COURT OF SOUTH AFRICA

(Northern Cape Division)

High Court Review Case No: 638/03

Magistrate Case No: B1069/01

Date delivered: 2003-12-05

In the review matter of:

THE

STATE

versus

JOHAN

LETOKWE ACCUSED

Coram: MAJIEDT J et

LACOCK

J

JUDGEMENT

ON REVIEW

MAJIEDT J:

The accused was convicted as charged, namely of malicious injury to property. The District Court magistrate having been of the opinion that the sentence to be imposed would exceed her penal jurisdiction, referred the matter to a Regional Court for sentence in terms of the provisions contained in sec 116(1)(b) of the Criminal Procedure Act, 51 of 1977 (“the Act”).

The Regional Court Magistrate requested reasons for the conviction in terms of sec 116(3) of the Act. He specifically requested reasons in respect of the following aspects:

a) whether the identity of the accused had been proved beyond reasonable doubt, and

b) Why the accused had been charged with malicious damage to property, when the evidence clearly proves attempted theft.

There was also an enquiry relating to the referral of the matter for sentence which is not germane to the issues to be discussed in this judgement.

The District Court Magistrate had furnished her reasons for the conviction, but since the Regional Court Magistrate was still not satisfied therewith, he has referred the matter on review to this Court.

I set out the facts of this matters briefly as follows:

4.1 The charge against the accused was that he had maliciously damaged property belonging to the complainant, one Mr. JF Strydom, namely by smashing his vehicle’s window.

4.2 The main witness for the State was one Magda Letsholo who testified that she was a security officer in the employ of Spar supermarket. On the day of the offence she had been near a certain block of flats when she saw the accused, whom she had seen before, smashing the window of Mr. Strydom’s vehicle with a brick. According to her the accused opened the cubby hole of that vehicle, but did not take anything from it. She went to alert the complainant about the incident and he reported the matter to the police. The police did not arrive for a considerable period of time and the complainant consequently went directly to the police station to lay a charge.

4.3 According to Ms Letsholo’s evidence, the police arrived and she accompanied them to the taxi-rank to go and look for the accused. They found him there and he was placed inside the patrol vehicle. For some or other obscure reason the police then set the accused free and a policeman, one Makaota, told her that she should consider what would happen to her if the accused were to be released later. According to Ms Letsholo she informed the complainant of this turn of events.

4.4 The accused, who was undefended, cross-examined this witness at length about the question of identification and he denied during cross-examination that he had committed the offence with which he had been charged. The accused’s defence was that he had on that day just been released from police custody having been incarcerated for public drunkenness and that he had not committed the offence. The accused further put it to Ms Letsholo that the police would not have released him unless there had been a cogent reason therefor. Ms. Letsholo testified that the accused had worn a blue overall jacket on that particular day.

4.5 The next witness for the State was the complainant who confirmed the evidence of Ms Letsholo that the window of his vehicle had been bashed in on that particular day. Nothing had been removed from his vehicle. He confirmed further that he had to approach the police himself, because they failed to respond to his telephone call reporting the incident. He cannot contribute to the central issue in the matter, namely as to whether the accused was indeed the one who had maliciously damaged his property.

4.6 Sergeant Makaota was the next witness for the State. He confirmed that he had on the day of the incident received the report that the complainant’s vehicle had been damaged. He went to the taxi-rank with Ms. Letsholo. He had been told by her that the offender was wearing a blue jacket. He saw a person there with a blue jacket at the taxi-rank – it was the accused. He placed the accused inside his patrol vehicle, after the accused had initially resisted. According to sergeant Makaota, when he pressed Ms. Letsholo on the matter, she indicated that she was not entirely certain whether the accused was in fact the person whom she had seen bashing in the window of Mr. Strydom’s vehicle. She also indicated that she could not lay a charge since it was not her vehicle. Apparently Mr. Strydom had at that stage gone to PG Glass to have the window of his vehicle repaired. As a consequence of Ms. Letsholo’s uncertainty as to the correct identification of the accused and because she was not prepared to lay a charge, sergeant Makaota had then set the accused free.

4.7 The accused testified in his own defence and denied that he had committed the offence as averred by Ms. Letsholo. He testified that he had on that particular day just been released from police custody, since he had been incarcerated for public drunkenness on the previous day. He also testified that it was impossible for the witness Letsholo to have been able to see somebody bash in the window of Mr Strydom’s vehicle from her vantage point as indicated by her in her testimony. According to the accused he knew that area well and insisted that from her vantage point Letsholo would not be able to see the incident, let alone identify the offender. He denied that he was wearing a blue overall as testified to by Letsholo and as confirmed by the policeman, sergeant Makaota, in his evidence.

The Magistrate convicted the accused on the basis that she was satisfied that Ms Letsholo’s identification was not only credible but reliable. She found corroboration for that identification in the evidence of Mr. Makaota insofar as it relates to the blue overall jacket which the accused had allegedly been wearing on the day in question.

Ms. Letsholo was not only an identification witness (and in respect of whom therefore a cautionary rule applied), but was also a single witness. Consequently the Magistrate had to exercise extra caution in assessing her evidence. The Magistrate failed to deal with the evidence of sergeant Makaota at all as to what the witness Letsholo had told him about her doubts concerning the identification of the accused as the offender in question. In her judgement the Magistrate says:

“.... because today I could not get a reason from the police officer why you were released ...”

This finding is a misdirection on the facts –sergeant Makaota had on more than one occasion given clear reasons why he had set the accused free, namely (and very importantly) that Ms Letsholo had indicated to him that she was not entirely certain that the accused had in fact been the one who had damaged the window and secondly the fact that she was not prepared to lay a charge against the accused. In the same vein, the Magistrate’s finding that sergeant Makaota had released the accused “out of ignorance” is also a misdirection on the facts.

The State was clearly aware of the nature of the evidence that sergeant Makaota was going to give in court. The prosecutor chose, notwithstanding this knowledge, to call sergeant Makaota. There is nothing on the record to show that sergeant Makaota’s evidence is to be disbelieved without further ado. The Magistrate, in any event, does not provide adequately motivated reasons for disbelieving him. As I read her judgement, she merely brushes over sergeant Makaota’s evidence and only accepts that part of his evidence which corroborates Ms Letsholo’s evidence, namely the fact that the accused had worn a blue overall jacket on that day. This is an incorrect approach. A witness cannot be believed in part and the rest of his evidence either ignored or disbelieved for no acceptable reason whatsoever.

In the premises I am of the view that the identification of the accused by Ms Letsholo is wholly unreliable. There is nothing on the record to show that the accused’s version is not reasonably possibly true. An investigation into his allegation that he had just been released from custody that very day would have gone a long way to assist the State in this matter. In addition, a further important matter which had been left unattended during the trial is the accused’s allegation that Ms Letsholo could not see the events, let alone make a proper identification of the offender, from her vantage point on that particular day. An inspection in loco would have clarified these matters considerably. In the absence of such further investigations, Ms Letsholo’s evidence as a single identifying witness leaves much to be desired and to my mind cannot be said to be satisfactory in all material respects so as to justify a conviction.

The further enquiry of the Regional Court Magistrate with regard to the charge laid against the accused warrants no further consideration, given the conclusion I have reached in this matter.

In the premises the accused’s conviction and sentence is set aside.

___

SA

MAJIEDT

JUDGE

I concur.

____

HJ

LACOCK