S v Mofokeng

• Jurisdiction: South Africa
• Judge: D Makhoba AJ and Kollapen J
• Judgment Date: 14 May 2014
• Docket Number: A431/2013
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 16 April 2014
• Citation: 2014 JDR 0926 (GNP)

Makhoba AJ:

1.

THE CHARGES

The Appellant was charged for theft and convicted as charged on the 21st November 2012. He was subsequently sentenced to 5 (five) years direct imprisonment.

2.

THE FACTS

It is common cause that the Appellant was found in the motor vehicle that was stolen from the complainant. The ignition of the said motor vehicle was tampered with. The Appellant gave an explanation to the police officers that arrested him. The explanation is that the motor vehicle was to be taken for repairs on behalf of his employer Mr Chabalala.

The Appellant closed his case without testifying or calling any witnesses.

3.

GROUNDS OF APPEAL

•

Counsel for the Appellant submitted that the version of the Appellant which was disclosed when he pleaded and was put to the arresting officers under cross-examination was not refuted by the state.

•

The Appellant did not have a duty to enter the witness stand to

2014 JDR 0926 p3

Makhoba AJ

repeat his version. The fact that Appellant did not testify did not strengthen the state case. The evidence presented by the state was of a poor quality and did not require an answer from the Appellant.

•

On the 17th April 2014 counsel for the appellant submitted to us that the trial was unfair towards the appellant because Constable Mpumalane wrote the statement on behalf of Lieutenant Colonel Maboko. In this regard counsel for the appellant relied on the decision in S v Hayes en 'n ander 1998 (1) SACR 625 (O)

It is imperative that we distinguish the facts of the case before us and the facts in S v Hayes en 'n ander supra. In S v Hayes en 'n ander supra the accused were convicted as a result of an entrapment which the court on appeal referred to as follows on p627 "the State had thus persuaded two law abiding, innocent people to commit an offence". In addition the court found that the Police officers had collaborated with each other in making the written statements. On page 626 flynote of the case the court said: "true enquiry being whether conduct of police so fundamentally unfair that accused's right to a fair trial frustrated thereby".

In the case before us it is common cause that Appellant was found inside a stolen motor vehicle. We also accept that it was wrong for Constable Mpumalane to write a statement for

2014 JDR 0926 p4

Makhoba AJ

Lieutenant Colonel Maboko. We also accept that such a conduct can render a trial unfair depending on the facts of a particular case before...