---

CA NO 74/2007

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

THE STATE

and

SAMUEL PHERA LONTO MOLEMI

REVIEW JUDGMENT

MOTSOMANE AJ

[A] Introduction:-

[1] The accused in this matter had been convicted of theft and sentenced to six (6) months imprisonment after the State had led evidence of two (2) witnesses.

[B] Merits:-

[2] The first witness Anna Maria Modise woke up at night while intruders were already inside the house. She could not recognise any of them except seeing the feet of one of them who was dressed in blue trousers.

[3] The sequence of how it happened is not clear as at times she averred that this person entered through the window and she woke up when the window was fiddled with.

[4] The second witness was woken up by the first witness and all that she saw was half-face of the intruder as half was covered with the bag. When the intruder left the premises, she called the name Lonto and the intruder fled.

[5] At the close of the State case the learned Magistrate correctly so, invited an address in terms of Section 174. Despite the poor evidence of identity, self-contradictions and cross-contradictions of witnesses, the accused was placed in his defence.

[6] Because of the plea of accused the State was supposed to lead sufficient evidence of identity which had to be read in conjunction with the other evidence.

See:- S v Mthethwa 2004 (1) SACR 449 (E).

Section 174 of Act 51 of 1977.

[7] On the other hand the evidence of accused was unshaken, cogent and strong as his brother confirmed to the witnesses that he had locked him into the shack on that particular night.

[C] Conclusion:-

[8] The accused ought to have been discharged at the close of the State case and the following order is made:-

“[a] The conviction and sentence are set aside;

and

[b] accused to be released with immediate effect.”

R H MOTSOMANE

ACTING JUDGE OF THE HIGH COURT

11 OCTOBER 2007

---