S v Soyizwaphi (A1212/07) [2008] ZAECHC 106 (26 June 2008)

IN THE HIGH COURT OF SOUTH

AFRICA

(TRANSKEI DIVISION)

HIGH COURT REF NO. 214059

CASE NO. A1212/07

In the matter between:

THE STATE

vs

LUNGILE

SOYIZWAPHI

REVIEW JUDGEMENT

KHUZWAYO AJ

1] The accused appeared before the Magistrate in the district of Tsolo. According to Annexure “Z” to the charge sheet the accused was charged with three (3) counts. It appears that Count 1 relates to a “breach of a protection order”, Count 2 “Assault” and Count 3 “imputing witchcraft. “

[2] However, the record has further charges in Annexure “A” documents each depicting counts 1, 2 and 3 respectively. These charges appear a repeat of the charges in Annexure “Z”, viz.

“ 2.1 Count 1 the accused allegedly assault threats (sic) in that upon or about month

September 2007 the accused unlawfully and intentionally assault Matshezi Soyizwaphi by threatening to shoot and kill her.

Count 2 in that “During month 2007” the accused unlawfully and intentionally assaulted Matshezi Soyizwaphi by manhandling her.

Count 3 in that “During month 2007” the accused unlawfully and intentionally impute to another person…”

[3] On 29 April 2008 the accused pleaded not guilty and the matter proceeded and finalized on 30 April 2008. The record of the proceedings reflects, briefly that the accused was remanded in custody from the date of his arrest, 26 October 2007 until date of trial 29 April 2008. Bail had previously been fixed until reduced to R200.00 on 20 March 2008. However, the accused still failed to raise bail money. When Complainant testified she stated amongst other things that:

3.1 On 16 July 2008 (I suppose 2007) accused insulted her and spit on her calling her a witch. He manhandled her and his mother instructed him to leave her (Complainant). The accused had a bottle neck (sic) and sharp instrument.

3.2 Further that “when his mother (Noluxolo) told him to stab her he said he will not stab her as she is his mother, but said that she want to stab the witch that is nearby.

3.3 She telephoned the police and reported everything to them. The police arrived on 26 October 2007 looking for accused’s whereabouts.

3.4 On a third occasion the accused came to her and said that those policemen she had called, if sunset comes without them he will shoot her. She says she felt threatened and afraid. This was witnessed by Lusindiso.

[4] The state then called its second witness Nolusindiso Soyizwaphi who testified amongst other things, that.

Accused is her brother, he arrived home one afternoon and enquired about a person who had used his wood. She told him that it was the Complainant (her mother). To that the accused responded by threatening to shoot Complainant.

On the following day, the accused came back and asked for the key to a four cornered house. Her mother advised him that he was no longer staying in the four cornered house. Accused insulted his mother calling her a witch and said he was going to kill her.

[5] I have considered the evidence of the two state witnesses and in my reading of the record I have difficulty in appreciating the basis upon which the magistrate could arrive at the conviction of the accused for the following reasons:-

They both make no mention of any protection order nor is there evidence of who between Complainant and accused’s mother had made that complaint.

The assault by threat appears in Complainant’s evidence as relating to a statement by the accused to the effect that “should the police not arrive before sunset he will shoot me” there is no further testimony of what the accused was doing. Whether the accused was armed with a fire arm or whether the accused has one or is known to be able to procure a fire arm, the threat is only at the level of a statement and nothing more.

Complainant’s evidence relates to an incident on 16 July 2008 (which I suppose is 2007) where she says she was “manhandled by the accused, but gave no details of how this was done. She testified that Nolusindiso was also present, however when Nolusindiso testified she made no mention of that event.

Both Complainant and Nolusindiso testified to the effect that on some occasion(s) accused came into the house and called Complainant a witch. He was armed with a “bottle neck” (sic) and sharp instrument. Her mother told him to stop what he was doing that, he should instead stab her rather than stabbing Complainant. He said he will not because she is her mother but will rather stab the witch that was nearby. When his mother told him that he will make Complainant sick, he responded that Complainant can be sick until her death.

[6] Further difficulties presented by the nature of the proceedings under review demonstrate briefly the following:

The prosecutor did not at any stage of the proceedings question the witnesses in relation to their testimony and the specific charges levelled against the accused person.

The evidence of the state witnesses is not clear as to the periods during which the said offences were allegedly committed.

In her evidence, Complainant is clear that Nolusindiso was present and witnessed the incidences. On the other hand Nolusindiso’s evidence relates to the following instances:

She describes the accused as her brother and Complainant as her mother.

On the first instance accused threatened to shoot her (Nolusindiso) mother (referring to Complainant).

Then on the following day the accused came back and asked for the key. He then insulted his mother, and Nolusindiso’s aunt

intervened and said she must kill her.

Complainant refers to the accused as her grandson and accused’s mother is Noxolo. She does not describe the relationship between accused and Lusindiso, who may also be Nolusindiso. There is further no evidence on charity of relations between accused and Nolusindiso, who referred to accused as her brother.

The accused was not represented during the proceedings. The nature of questions he put to the witnesses are not helpful either. The only person who could and infact should have assisted is the trial magistrate. Unfortunately the record makes no reference to a single instance wherein the magistrate asked a question. This is the case in both the state case as well as defence case.

The magistrate did not consider it prudent to ask questions that should have clarified the state witnesses’ evidence. As a result what the accused could not do as a cross examiner was not done. We are left with incomplete evidence in important and material areas. The specific period relevant to the charges is not on any evidence presented in court. Both witnesses testified of a role played by the accused’s mother and in fact on almost all instances her name and presence is mentioned. But she is not called to testify for whatever undisclosed reason.

The record is also silent on a practical demonstration by the trial magistrate on his appreciation of his duty to assist the accused person when it became evident that the accused was unable to ask questions. Further on the gaps that have been identified on the evidence of the witnesses as also against the charges, he did nothing. However, after the prosecutor had addressed on the merits and submitted that the accused should be found guilty of all three counts and also when the accused had addressed, the accused is recorded having simply stated that “I ask the court not to find me guilty”. The magistrate replied with a statement that:

“JUDGEMENT: Accused is found guilty of count 1 and 2 and not guilty to count 3.”

[7] Every analysis of the evidence led during the trial does not prove the charges against the accused. The state failed to lead material and relevant evidence surrounding the circumstances under which the accused attempted to assault Complainant as well as other two charges in Annexure “A” and/or as in Annexure “Z”.

[8] I have refrained from inviting the magistrate to comment from the nature of my observations which have led to my findings. There is no way that the trial magistrate would have justified the conviction even if I were to direct a query to him. Every consideration of the record directs me to the conclusion I have arrived at. Further more that process would prejudice the accused who has been wrongly convicted.

Conclusion

[9] Accordingly, I make the following order: the Conviction and Sentence imposed is set aside.

________

ACTING

JUDGE OF THE HIGH COURT

I AGREE: PAKADE J

JUDGE

OF THE HIGH COURT

DELIVERED ON: 26 JUNE 2008

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