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NORTH WEST HIGH COURT, MAFIKENG

CASE NO. CA09/2011

In the matter between:

RICHARD MALULEKA ...............................................................................APPELLANT

and

THE STATE ..............................................................................................RESPONDENT

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CRIMINAL APPEAL

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GUTTA J.

A. INTRODUCTION

[1] The appellant and his co-accused were convicted of robbery with aggravating circumstances by the Regional Court, held at Ga-Rankuwa. They were both sentenced to 15 years imprisonment.

[2] The appellant appeals both the conviction and sentence.

B. GROUNDS OF APPEAL

[3] The appellant sought to set aside the conviction and sentence on two grounds, namely:

3.1. that the record is incomplete in that there is no written judgment on conviction and there is no record of the proceedings in relation to sentence;

3.2. the State failed to prove the appellant’s guilt beyond a reasonable doubt.

C. INCOMPLETE RECORD

[4] The original charge sheet could not be found and some of the tape recordings were lost. The Magistrate, Mr B.G. van Wyk, had retained his notes and was able from his notes to reconstruct the missing portion of the record, save for the written judgment and the sentencing proceedings.

[5] In S v Colliers 1972 (2) SA 378 (C), it was held that whenever it is not possible to reconstruct a missing record and the lost portion contains evidence that is of material importance to the adjudication of an appeal, the appeal ought to succeed and the conviction and sentence set aside.

[6] Counsel for the appellant, Mr Nkhahla, referred the Court to the cases of S v Chabedi 2005 (1) SACR 415 (SCA) at 417e–f and S v Sebothe & Others 2006 (2) SACR 1 (TPD) at p.3.

[7] In S v Sebothe supra, at paragraph 7 and 8 at 2i – 3b, the Court held that:

“. . . where the record of proceedings in the trial court was not available, and it was not possible to reconstruct the record, the conviction and sentence should be set aside. An accused person’s right of appeal, which was part of his or her right to a fair trial, must not be frustrated by the State due to the provision of an incomplete record of the evidence. When a Court of appeal or review was not furnished with a proper record of proceedings, this right was encroached upon and the only avenue for the protection of the right was the setting aside of those proceedings.”

[8] In S v Chabedi supra, the Supreme Court of Appeal considered the question whether the defects in a record were so serious that a proper consideration of the appeal was not possible. The Court at 417 paragraph 6h held that, “it depends, inter alia, on the nature of the defects in the particular record and on the nature of the issues to be decided on appeal”.

[9] I am of the view that although the record is incomplete, the incomplete portion is not of material importance for adjudication of the appeal. A proper consideration of the appeal is possible as the evidence of the State as well as the defence is on record, and portions of the record have been reconstructed by the learned Magistrate from his hand written notes.

D. MERITS

[10] The complainant’s version is that on 05 March 2005, she went to Joes Tavern to buy relish. There was no relish and the complainant waited for one Lillian and her brother to come out of the shop and she joined Lillian.

[11] She testified that the appellant and his co-accused (“accused 1”) were playing dice at the tavern. The appellant asked her if she knew accused 1. She said no, and the appellant then grabbed her hand. She asked him to let her go and he told her to ‘voetsek’. Lillian left and the appellant dragged her. Accused 1 produced a firearm and pointed it at her. The complainant testified that she spoke to a woman carrying a child on her back as she wanted to escape. The complainant had a R100.00 note in her hand. The appellant opened the complainant’s hand and took the R100.00 from her. The complainant then escaped and ran into someone’s yard. Neither the appellant nor accused 1 ran after her.

[12] The complainant’s sister, Nthabiseng Kgomo (“Nthabiseng”), to whom the complainant reported the incident, testified that on 06 March 2005, the complainant told her that she went into the shop while her friend, Kgomotso, waited outside. The appellant appeared and took her away, and on the way, accused 1 emerged. The complainant arrived at home past 21h00.

[13] Nthabiseng made no mention of the complainant being dragged by the appellant or that accused 1 produced a firearm or that the appellant removed a R100.00 note from her possession.

[14] The appellant’s version is that on 26 February 2005, he was with the complainant at the tavern. Accused 1 arrived and bought some beer. The appellant did not have enough money and told the complainant that he is going home for some money. He left with the complainant. Along the way, she told him that she is going to Tebogo’s home. She went there and did not return. Accused 1 arrived and gave him a beer and they left together.

[15] Accused 1’s version was that he was in the complainant’s company at the tavern but that he did not meet her on the street after she left the tavern.

Was robbery committed?

[16] Robbery is defined as theft of property by unlawfully and intentionally using:

16.1 violence to take the property from somebody else; or

16.2. threats of violence to induce the possession of the property to submit to the taking of the property.

See Criminal Law Snyman, Fourth Edition, Lexis Nexis Butterworths, page 506.

[17] On the merits, counsel for the State, in my view correctly conceded that the appellant’s guilt was not proven beyond a reasonable doubt for the following reasons:

17.1 the complainant’s version was not reasonably possibly true;

17.2. the complainant’s evidence should have been treated with caution as a single witness;

17.3 the complainant’s evidence was not corroborated;

17.4. the appellant did not deny that he was with the complainant. He did not contradict himself;

17.5 neither the appellant nor accused 1 implicated each other;

17.6. the complainant contradicted herself on material issues and her version of events was improbable.

[18] The complainant’s testimony regarding the firearm and the R100.00 note is sketchy as can be gleaned from the complainant’s evidence in cross-examination, stated hereinbelow.

[19] The following questions were posed to the complainant by accused 1 in cross-examination concerning the firearm:

19.1 Q: Why did I point firearm at you?

A: You did that, should know.

19.2 Q: I went to your home and visited you because I was surprised

about the allegation, I never pointed with a firearm and you did not mention R100.00.

A: Yes, because you said you know nothing about the R100.00 and your friend Richard does.

19.3 Q: What did I say (when I pointed the firearm)?

A: Nothing.

[20] The appellant also cross-examined the complainant about the firearm:

Q: Which firearm you referring to?

A: You brought accused 1 to us and introduced it to you.

Q: Why say ladies accused 1 pointed firearm at you?

A: I did not know person holding firearm could do so.

[21] In re-examination, the question was posed:

Q: Were you pointed with a firearm on 26/2 or 5/12?

A: Trapped 2/5.

[22] Regarding the R100.00 note, the appellant posed the following question to the complainant:

Q: You did not have money with you.

A: You did not have money at the tavern.

[23] The State failed to prove the following elements of the offence, namely:

23.1 the theft of the R100.00;

23.2 there was violence or threat of violence;

23.3 there was a causal link between the violence or the threat of violence and the taking of the property;

23.4 unlawfulness;

23.5 intention.

[24] The State failed to discharge the onus of proving beyond a reasonable doubt that the appellant and accused 1 committed robbery.

[25] In the circumstances, the conviction and sentence of the appellant should be set aside.

E. ACCUSED 1

[26] Although accused 1 was not before Court as an appellant, the High Court has an inherent jurisdiction to review proceedings in lower courts, where there was grave injustice to the accused. See S v Mathemba 2002 (1) SACR 407 (E) at 408–409; S v Regional Magistrate, Wynberg & Another 1999 (2) SACR 13 (C) at 21g–j; S v Zwane 1996 (2) SACR 281 (T) 182–183c.

[27] Section 173 of the Constitution of the Republic of South Africa Act 108 of 1996 has broadened the inherent jurisdiction of the High Court with inherent powers to protect and regulate their own process and to develop the common law, taking into account the interests of justice.

[28] In S v Kok 2005 (2) SACR 240 (WC), the Court of Appeal without considering the merits of the appeal, set aside the conviction and sentence because of multiple irregularities which resulted in the appellant not having had a fair trial.

[29] A court would be prepared to set aside a conviction and sentence on the grounds of irregularity if it resulted in the appellant not having received a fair trial. See S v Lubbe 1981 (2) SA 854 (C) at 860f–g.

[30] It is in the interest of justice for this Court to consider the case for accused 1, even though he has neither appealed nor reviewed the conviction and sentence of the lower court.

[31] The State, who correctly conceded the conviction and sentence, should have apprised accused 1 of his rights immediately when they became aware that the conviction and sentence were not in accordance with justice, instead of remaining silent.

[32] As accused 1 was still in custody and there appeared to be no immediate remedy available to him, this Court on 19 August 2011 ordered the immediate release from imprisonment of both the appellant and accused 1.

[33] The Court in the circumstances accordingly invokes Section 173 of the Constitution of the Republic of South Africa Act 108 of 1996 and exercises its inherent powers to set aside the conviction and sentence of accused 1.

F. ORDER

[34] Accordingly, I order that:

a) The appellant’s (Richard Maluleka) appeal against conviction and sentence is upheld.

b) The conviction and sentence of Tshepo Madula, who was accused 1 with the appellant in the court a quo, is set aside.

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N. GUTTA

JUDGE OF THE HIGH COURT

I agree

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M.M. LEEUW

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 19 AUGUST 2011

DATE OF JUDGMENT : 29 SEPTEMBER 2011

COUNSEL FOR PLANTIFF : ADV R.J. NKHAHLE

COUNSEL FOR DEFENDANT : ADV J.J. VAN NIEKERK

ATTORNEYS FOR PLAINTIFF : MAFIKENG JUSTICE CENTRE

ATTORNEYS FOR DEFENDANT : DIRECTOR OF PUBLIC PROSECUTIONS

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