CA NO:  72/2002

IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

JOSEPH RAPHELA                                                          Appellant

and

THE STATE                                                                   Respondent

CRIMINAL APPEAL

MAFIKENG

MOGOENG JP;  PISTOR AJ

DATE OF HEARING	:	08 NOVEMBER 2002
DATE OF JUDGMENT	:	12 DECEMBER 2002

COUNSEL FOR THE APPELLANT	:    ADV. N. GUTTA
COUNSEL FOR THE RESPONDENT	:    ADV. H.S.R.R NKE

PISTOR AJ:    

Introduction:

In this matter the Appellant was charged in a Regional Court for having been in possession of suspected stolen property in that during the period 31 January 1997 to 2 February 1997 the Accused (Appellant) had in his possession stock to wit 10 head of cattle in regard to which there was a reasonable suspicion that they were stolen and in respect of which possession the Appellant failed to give a satisfactory explanation. He pleaded not guilty and denied all the elements of the charge.  He was found guilty as charged and was sentenced to three years imprisonment after having admitted a number of previous convictions.  He appealed to this Court against both the conviction and the sentence.

Grounds of Appeal:

Mrs Gutta, who appeared on behalf of the Appellant before us, in her heads of argument attacked the Magistrate’s finding on the merits on a number of grounds.  It is in my view for the purposes of this judgment necessary to refer to one of these grounds only namely the failure of the learned Magistrate to permit the Accused’s legal representative to cross-examine the State witness on a statement, previously deposed to by that witness.  I have to interpose by saying that the latter ground does not appear in the Notice of Appeal, but since the introduction thereof in the Heads of Argument was not objected to by Mr Nke who appeared on behalf of the State before us and since that point was ventilated during the argument, I consider it in the interest of justice that in the circumstances of this case the said ground should be considered by this Court.  The said ground of Appeal raises the question as to whether, on the facts of this case, it can be said that the Accused had received a fair trial and if not, whether his conviction should not be set aside on that ground.  For the reasons stated herein below I am of the view that the Appeal should succeed on the said ground and that the remainder of the grounds of Appeal need not be considered.

The relevant facts:

I summarise the facts of the case only to the extent that they in my view are necessary for the purposes of this judgment.  Two witnesses testified for the State, the first, one Mr Nokane (Nokane) testified that during the morning of 31 January 1997 the Appellant arrived at Nokane’s house in the village where the latter was staying.  Appellant was alone but was driving nine head of cattle.  The Appellant told Nokane that the cattle belong to him and that he was looking for a cattle post.  Whilst Nokane was still talking to the Appellant a car arrived and the Appellant suddenly disappeared into the veld.  The Appellant returned the next day with the cattle.  

One Gaealashwe was the second witness for the State.  The next day (1st February 1997) he (Gaealashwe) noticed the Appellant driving nine head of cattle in the village.  He approached the Appellant and, by prior arrangement between Gaealashwe and Nokane, Nokane also approached the Appellant at the same time.  Gaealashwe asked the Appellant as to where he had got the cattle from and where he was taking them.  Appellant’s response was that the cattle belonged to one Sam Mothupi of Dinokana and that he (Appellant) was taking the cattle to “Mosweu” as one had to be slaughtered.  Gaealashwe said to the Appellant that since he (Appellant) was a stranger in that area and that since they experienced “lots of stock theft” in that area and because they were “worried” about that, Appellant should appear before the Chief.  Gaealashwe then accompanied the Appellant in driving the cattle to the Chief.  Whilst the cattle were moving forward the Appellant indicated to Gaealashwe that he (Appellant) wanted to ask for water from a man that was nearby.  He then disappeared and did not return.  The cattle were then impounded.  This all happened on Sunday 2 February 1997.  

The witness Nokane, made a written statement to the Police.  It is
this statement that forms the subject of the ground of Appeal
presently under discussion. I refer to the contents of the statement 
later herein.  During her cross-examination of Nokane the Attorney 
of behalf of the Appellant wanted to put questions to the witness 
(Nokane) in order to prove that he had made the aforesaid 
statement the to the Police.  When she wanted to cross-examine 
the witness on the statement the presiding Magistrate (at p 53 of 
the record) asked the witness “but was this statement read to you 
before you signed it?”  Nokane replied that it was not read to him.  
The Attorney then wanted to put the contents of the statement to 
the witness and wanted the witness to tell her whether that was his 
statement.  The prosecutor objected on the basis that the 
statement had not been read to the witness before he signed it.
The Magistrate upheld the prosecutor’s objection and ruled (p 75
of the record) 

“I am not going to allow you to cross-examine the 
witness on that statement, because he says that the statement 
was not read back to him.”  

After the close of the State case, and as part of the defence case, the statement was read into the record and was handed in by the defence Attorney with the consent of the prosecutor.  When the statement was handed in the  Attorney indicated to the Court a quo that:  “this statement is handed in to prove to this Court what a statement it was, that Albert Nokane gave to the Police.”  The statement was then accepted by the Court a quo as exhibit “A”. 
In my view, and by virtue of the fact that the prosecution had consented to the handing in of the statement, the Court a quo was then bound to conclude that it was accepted by the State that the statement had been correctly recorded.  However, it is not necessary to make a definite finding in this regard. In a number of respects the contents of the statement are in conflict with the evidence given by Nokane.  I mention a few:

a)	In paragraph 2 of the statement Nokane is reported to have said that two unknown men came to his residential place with the cattle.  This is clearly in conflict with his evidence in chief where he stated that the man who came with the cattle was alone.

b)	Also in paragraph 2 of the statement Nokane is reported to have said that the two men had ten head of cattle in their possession.  This, of course, is in conflict with his evidence, which was to the effect that there were nine head of cattle.

c)	Further  in paragraph 2 of the statement Nokane is reported to have said that one of the men to whom he referred as Mokwena told him (Nokane) that he (Mokwena) had been sent by one Sam Mothupi of Dinokana village to help him find a buyer for the cattle.  This is in direct conflict with his evidence in chief where Nokane told the Court that the Appellant had himself claimed ownership of the cattle.  

d)	According to paragraph 4 of the statement Nokane went to a funeral early in the morning of Sunday 2 February 1997.  On his return from the funeral one Sam Mothupi, with his son Silas Mothupi, arrived at Nokane’s place.  Sam Mothupi then asked him whether the men that he (Sam) had sent to Nokane had in fact arrived with the cattle.  He then told Sam that two men (one who called himself Mokwena) had indeed arrived with ten head of cattle.  Whilst they were talking Mokwena indeed appeared from the veld driving the ten head of cattle.  Sam Mothupi then said to Nokane that, if he was aware of the cattle then it was all right.  There is no reference to this incident in Nokane’s evidence in chief.  

e)	There is no reference in the statement to the fact that Appellant disappeared when a car arrived at Nokane’s place when the Appellant was there, which fact was related to the Court a quo by Nokane in his evidence in chief, as I have already indicated. 

Therefore, prima facie, there appear to be  substantial differences and contradictions between, on the one hand, the evidence in chief of the witness Nokane and, on the other hand, his statement to the Police. The learned presiding magistrate in his judgment came to the conclusion that there are no material differences between the statement and the evidence of the witness. In my view he erred in that regard. It might be that the differences could all have been clarified by Nokane during cross-examination. However the possibility exists that Nokane’s evidence was wrong and that his statement was correct.  The latter might even be the more probable proposition especially if it is born in mind that Nokane’s evidence in chief started on 31 August 2000 (more than three years after the incident).  In the circumstances the question arises as to whether cross-examination with regard to the contents of the statement would not have revealed a different picture of the witness Nokane and of his evidence in the Court a quo.  

The learned presiding Magistrate refused to allow cross-examination on the contents of the statement because the statement had not been read to Nokane before he signed it.  In my view the learned Magistrate erred in this regard.  The relevant question should not have been whether the statement had  been read to Nokane before he signed it, but whether the statement had been taken down correctly. If it had been read to the deponent before it was signed, that might have been an indication that the witness was satisfied with the contents of the statement.  However even if the statement had not been read to the deponent before it was signed, the obvious manner of establishing whether the statement had correctly been recorded was to put the contents of the statement to the witness (Nokane) and to ask him as to whether it was recorded correctly.  This was exactly what the Attorney wanted to do when she was stopped by the Magistrate.  Consequently I am of the view that the Magistrate committed an irregularity in this regard.  What is the effect of such irregularity on the outcome of the case and, more specifically, was the trial in the circumstances fair?

Principles relating to a fair trial:

In S v Moodie 1961(4) SA 752(A) AT 758G HOLMES JA remarked as follows:  

“(1) The general rule in regard to irregularities is that the Court will be satisfied that there has in fact been a failure of justice if it cannot hold that a reasonable trial Court would inevitably have convicted if there had been no irregularity. 

(2) 	In an exceptional case, where the irregularity consists of such a gross departure from established rules of procedure that the accused has not been properly tried, this is per se a failure of justice, and it is unnecessary to apply the test of enquiring whether a reasonable trial Court would inevitably have convicted if there had been no irregularity. 

(3) 	Whether a case falls within (1) or (2) depends upon the nature and degree of the irregularity.' 

In Key v Attorney-General, Cape Provincial Division and Another 1996(2) SACR 113(CC); (1996(4) SA 187; 1996(6) BCLR 788) KRIEGLER J remarked as follows with regard to the general principles in respect of a fair trial: 
 
“[13] In any democratic criminal justice system there is a tension between, on the one hand, the public interest in bringing criminals to book and, on the other, the equally great public interest in ensuring that justice is manifestly done to all, even those suspected of conduct which would put them beyond the pale. To be sure, a prominent feature of that tension is the universal and unceasing endeavour by international human rights bodies, enlightened Legislatures and courts to prevent or curtail excessive zeal by State agencies in the prevention, investigation or prosecution of crime. But none of that means sympathy for crime and its perpetrators. Nor does it mean a predilection for technical niceties and ingenious legal stratagems. What the Constitution demands is that the accused be given a fair trial. Ultimately, as was held in Ferreira v Levin, fairness is an issue which has to be decided upon the facts of each case, and the trial Judge is the person best placed to take that decision. At times fairness might require that evidence unconstitutionally obtained be excluded. But there will also be times when fairness will require that evidence, albeit obtained unconstitutionally, nevertheless be admitted.”

In Hlantlalala and Others v Dyantyi NO and Another 1999(2) SASV 541(SCA) the following was inter alia said:
 
“[8] The crucial question to be answered is what legal effect such irregularity had on the proceedings at the appellants' trial….. (See …..S v Shikunga and Another 1997 (2) SACR 470 (Nm) at 483i.) 

[9] In the last-mentioned case, which was quoted with approval in S v Smile and Another 1998 (1) SACR 688 (SCA) at  D  691 f - i, it was said that the essential question to be asked is whether the verdict has been tainted by such irregularity. In S v Rudman (at 391I) Nicholas AJA, having assumed that an irregularity had occurred at the trial, held that it was for the appellant ''to show that a failure of justice resulted from the irregularity''. An irregularity could be said to result in a failure of justice whenever there had been ''actual and substantial prejudice to the accused''. (See S v Ramalope 1995 (1) SACR 616 (A) at 621f - g and the cases there cited.) Thus no failure of justice will result if there is no prejudice to an accused and, by the same token, there will be no prejudice if the accused would in any event have been convicted, irrespective of the irregularity.”

With regard to a failure to allow cross-examination the law relating to both civil and criminal cases is clear namely:

“the disallowance of proper questions sought to be put to a witness by crossexamining counsel is an irregularity which entitles the party represented by the cross-examiner to relief from a higher Court unless this Court is satisfied that the irregularity did not prejudice him'.
Per SCHREINER, J.A., in Distillers Korporasie (S.A.) Bpk v Kotze, 1956 (1) SA 357 (AD), at p. 361H; S v Cele, 1965 (1) SA 82 (AD) at pp. 90 - 91,”

S v van Vreden 1969 (2) SA 524 (N) at 530(E).

Hoffman and Zeffertt in their work: S.A. Law of Evidence, 4th ed., 
p. 456, state that a failure to allow cross-examination 

“is a serious irregularity which will almost invariably prejudice a party, since there is no knowing what favourable evidence he might have been able to elicit”.

On the strength of the above authorities, I am of the view that the failure of the Magistrate in the Court a quo to allow cross-examination in order to establish whether the statement was properly taken down was an irregularity and since there is no knowing what favourable evidence for the accused (appellant) might have been elicited by such cross-examination, this court cannot be satisfied that the irregularity did not prejudice the appellant.

Consequently it cannot be said that the Appellant had been given a fair trial.

I would therefore make the following order:

“The appeal succeeds.  The conviction and sentence are set aside.”

J H F  PISTOR
ACTING JUDGE OF THE HIGH COURT

I agree.

M T R  MOGOENG
JUDGE PRESIDENT