Attorney-General, Venda v Molepo and Others

• Jurisdiction: South Africa
• Judge: Le Roux CJ
• Judgment Date: 16 March 1992
• Citation: 1992 (2) SACR 534 (V)
• Hearing Date: 17 February 1992
• Counsel: B G Morrison (Attorney-General) for the appellant T M G Euijen for the respondents
• Court: Venda Supreme Court

Le Roux CJ:

This is an appeal by the Attorney-General in terms of s 310 of the Criminal Procedure A Act 51 of 1977 against the decision of a regional court magistrate to grant an application for the discharge of the respondents at the close of the State case. Originally 10 accused were indicted on two counts, namely a first charge of a contravention of s 1(1) of Proc 46 of 1990 (V) (the so-called Intimidation Proclamation) and a second charge of malicious injury to property. After the first B adjournment, the tenth accused failed to appear and a separation of trials was ordered. The case then proceeded against the remaining nine accused.

All accused pleaded not guilty to both counts at the beginning of the trial. They were represented by counsel who explained their pleas. He said that accused Nos 1, 2 and 9 would deny being in the office of the C assistant chief executive officer of the Venda Development Corporation ('VDC'), Mr J M L Steyn, on 19 December 1990. The other accused would admit entering this office at some stage during the morning in the course of a protest action against the failure of the VDC to redress their grievances as employees of the corporation. They admit that placards were D carried for the attention of Mr Steyn, but they would deny any threat, express or implied, to him. On count 2, accused Nos 3 and 6 would admit moving Mr Steyn's desk into a corner of the room, but with no intention of either damaging it or of threatening Mr Steyn in the process. The other accused had nothing to do with the moving of the desk. The desk was moved to make more space for other demonstrators to enter the office.

The State led the evidence of two witnesses, namely the said Mr J M L Steyn, and a Lieutenant Phophi of the Venda Police, who arrived on the E scene after a call for assistance by Mr Steyn. After the State had closed its case, defence counsel applied for the discharge of the accused on the grounds set out in s 174 of the Criminal Procedure Act (viz that there is no evidence that the accused committed the offence), without closing the defence case. The prosecutor opposed the application, but despite his objections, the magistrate brought in a verdict of not guilty and F discharged all the accused. It is against this decision that the Attorney-General now seeks to appeal to this Court. For this purpose he requested the magistrate to state a case for the consideration of this Court, setting forth his decision on the questions of law and his findings of fact insofar as they are material to the questions of law.

It will be necessary to allude to the stated case in some detail as it G contains a number of misconceptions and contradictions which make it difficult to discover exactly what the magistrate is trying to convey in regard to the findings of fact.

The question of law is formulated as follows:

'(i)

Whether it was legally competent for the court to have granted accused's application for a discharge in terms of s 174 of Act 51 of 1977 at the close of the case for the prosecution and whether H it should have done so to such accused persons charged with contravention of s 1(1)(b) of the Intimidation Proclamation 46 of 1990 and malicious injury to property which case is in the view of the Attorney-General of extremely (sic) importance as being the first in a line of intimidation cases.

(ii)

Whether at the close of the case for the prosecution there was legal evidence upon which this court could have convicted the accused.

(iii)

I Whether the credibility of the State witnesses should be taken into account in deciding whether to grant a discharge.'

His findings of fact are stated as follows:

'1.

That the events of 19 December 1990 as presented by Mr Steyn were shown to be threatening.

2.

That during cross-examination it transpired that the position was not J as he presented and he had in fact over exaggerated (sic) the events.

Le Roux CJ

3.

A That there were grievances amongst employees of the VDC which were sparked off by the dismissal of six employees.

4.

That such dismissal sparked off the protest march and Mr Steyn himself also conceded that job insecurity in the VDC was a particularly sensitive issue for which there was cause for concern amongst employees of the VDC, including the accused.

5.

B That the dismissal of the six employees had something to do with Mr Steyn himself as he was a member of the top management committee together with Mr Dama which investigated issues for which they have been dismissed without being given a hearing.

6.

That Mr Steyn was unable to testify to any conduct on the part of the accused which could be regarded as overtly threatening.

7.

C The evidence of Mr Steyn did not persuade the court that the events of the day in question constituted a threat within the meaning of the Intimidation Proclamation.

8.

That, according to Lieutenant Phophi, Mr Steyn was in no physical danger.

9.

That he failed to identify the possible suspects but only demanded D that Lieutenant Phophi should arrest all employees of the VDC.'

The magistrate then purports to give reasons for his decisions on the questions of law, and says inter alia that:

(a)

The decision whether to grant or refuse a discharge at the end of the State case is a matter 'solely within the discretion of the presiding officer which may not be questioned on appeal'. E Reference is made to R v Lakatula and Others 1919 AD 362 and R v Afrika 1938 AD 556.

(b)

The court exercised its discretion judicially by discharging the accused. R v Herholdt and Others (3) 1956 (2) SA 722 (W) and S v Mpetha and Others 1983 (4) SA 262 (C).

(c)

The test applied was whether there is insufficient evidence for a reasonable man to convict. S v Khanyapa 1979 (1) SA 824 (A) at 838 F and S v Shuping and Others 1983 (2) SA 119 (B).

(d)

Should the answer to the question posed under (c) above be in the affirmative, the presiding officer is under a duty to direct an acquittal. R v Louw 1918 AD 344 at 352 and R v Thielke 1918 AD 373 at 379. G

(e)

In the present case Steyn could not point to any conduct which could be described as overtly threatening on the part of the accused and his evidence was contradicted by Phophi.

(f)

The State case on count 1 'depended on proving a threat and that evidence had to be found solely in the testimony of Mr Steyn'. Steyn's evidence did not indicate any threats within the meaning of the proclamation.

(g)

There is disagreement whether the credibility of State witnesses H should be taken into account when considering a discharge at the end of the State case. R v Dladla and Others (2) 1961 (3) SA 921 (D); S v National Board of Executors Ltd and Others 1971 (3) SA 817 (D); S v Bouwer 1964 (3) SA 800 (O); S v Mpetha and Others (supra).

(h)

'In casu the credibility of State witnesses had played a very limited (role) and in particular the evidence of Mr Steyn has been I ignored as it was of such poor quality that no reasonable person could have possibly have (sic) accepted it.'

So far the stated case. Before dealing with the magistrate's finding of fact and his reasons for the decision to discharge, Mr Euijen, who appeared on behalf of the accused in the court a quo and for the respondents before us, raised the preliminary objection that the decision to discharge is purely discretionary and does not constitute a question of J law. Therefore, he submits, the Attorney-

Le Roux CJ

A General has no right of appeal under s 310. Counsel relied strongly on the authorities quoted by the magistrate, viz R v Lakatula and Others (supra) and R v Afrika (supra), and added that these authorities are 'unimpeachable' and have been consistently followed. He referred to S v Campbell and Others 1991 (1) SACR 435 (Nm) at 444e; Hoffmann and Zeffertt The SA Law of Evidence 4th ed at 504; and Hiemstra Suid-Afrikaanse B Strafproses 3rd ed at 382 in support of his submission.

Mr Morrison, the Attorney-General, on the other hand submitted that the decision to discharge at the end of the State case was a decision on a point of law in favour of the accused which could be tested on appeal in terms of s 310. He referred to R v Thielke (supra at 376) in support of this contention.

In R v Lakatula and Others (supra) the trial Court reserved a point of law under s 372 of Act 31 of 1917 (presently s 319) which was formulated C as follows: 'whether the Judge at the trial should not have withdrawn the case from the jury on the ground that there was no corroboration of the evidence of Notje who was an accomplice in the trial'. It appears that, after the close of the case for the prosecution, counsel for the accused applied for their discharge for lack of sufficient evidence. This application was apparently refused and the accused did not give evidence. D Thereafter the jury convicted the accused of murder. The so-called point of law was then reserved for decision by the Appellate Division. During the appeal, the Attorney-General expressed his reservations whether this question was a legal one, and the learned Judge of Appeal, Solomon ACJ expressed himself as follows on this aspect of the case (at 363-4):

'I agree with him (the Attorney-General) that if at the close of the E case for the prosecution the Judge refuses to withdraw the case from the jury because in his opinion there is evidence which would justify them in convicting, the exercise of his discretion cannot be called in question under s 372. It may very well be that, even if the Judge is wrong in his view, the deficiency in the evidence...