S v Mokoena

• Jurisdiction: South Africa
• Judge: HF Brauckmann AJ and MT Mankge AJ
• Judgment Date: 23 July 2020
• Docket Number: R 03/19
• Hearing Date: 23 July 2020
• Citation: 2020 JDR 1438 (MN)

Brauckmann AJ:

INTRODUCTION:

[1]

In this review tone is reminded never to lose sight of the interplay between private law and criminal law. The law is dynamic and students have over the years, just like the courts, sometimes struggled to keep that in mind. This matter was referred to this Court as an automatic review in terms of Section 302 of the Criminal Procedure Act [1] ("The CPA").

[2]

Mr Mokoena, the accused in the Court a quo, was arraigned with a count of malicious damage to property. He stood accused that on or about 20 February 2015 he unlawfully and with the intention to injure Mr BJ Xaba in his property, broke down a wall owned by or in the lawful possession of Mr Xaba. Mr Mokoena represented himself in the proceedings in the Court a quo. The Magistrate, as he

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is obliged to, and at more than one occasion explained to Mr Mokoena that he had a right to be represented, and in the event that he could not afford to appoint his own attorney, he is entitled to make use of the service of Legal-Aid SA. This despite, he elected to represent himself. I pause to mention that I have been involved in many matters where lay persons represent themselves, but Mr Mokoena's conduct, and effective cross-examination of the complainant will remain with me. I must mention that the Magistrate must be commended for his assistance and patience during the trial which is exemplary to other judicial officers of what is expected of them in all matters, not only where unrepresented litigants appear in their courts.

[3]

The Court a quo convicted Mr Mokoena on the charge, and sentenced him to a fine of R 10 000.00 or 1 (one) year imprisonment which is wholly suspended for 5 (five) years that he is not found guilty of the same crime committed during the period of suspension, and he was declared unfit to possess a firearm [2] . I pause to mention that the prosecution was withdrawn at a certain stage in order to afford the parties an opportunity to settle the dispute. The matter was not settled and the State decided to reinstate the charge against him.

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The terms of the so-called mediation agreement signed, and the background thereto was also a matter of debate.

BACKGROUND:

[3]

Mr Mokoena pleaded not guilty to the charge, and elected to make a statement disclosing his defence in terms of Section 115 of the CPA, but not before the Court a quo explained to him that he is under no obligation to provide the Court with such an explanation, or answer any questions by the Court.

[4]

He stated:

"I do have pictures as evidence your worship to show that [the] municipality your worship gave me a portion of land your worship. So the cement wall your worship they are referring to when they say they are alleging that I damaged your worship, that wall it is in my yard your worship." [3]

[5]

At this stage the Court a quo should have realised that the private law, and more importantly, the law pertaining to ownership and

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Inaedificatio [4] was always going to enter the fray. Mr Mokoena testified that the property he purchased used to form part of a larger portion that was subsequently sub-divided. He got the land and house as a RDP home. Mr Xaba purchased the property, which I understand, held the initial farm homestead with concrete walls surrounding it from a company known as Golden Nest International Group (Pty) Ltd ("The Seller"). From a deed of sale between Mr Xaba and the Seller it appears that the seller was represented by Mr Peng Hui, a director. The agreement was handed in by Mr Xaba during his evidence in chief as "Exhibit A". In terms of the agreement, Mr Xaba purchased Erf 8364 Ermelo, Extension 33 ("Mr Xaba's property and the property"). The property was 1860 square metres in extent, and was sold as it was and subject to all servitudes and conditions in the title deed. The agreement does not refer to the wall at all, but Mr Xaba's case is that he purchased the property, as the Magistrate put it "wall and all".

[6]

I do not intend repeating the evidence, and will only deal with the relevant evidence. Mr Xaba is renting this property to Mr Buthelezi. Buthelezi called Mr Xaba on 20 February 2015, informing him that Mr Mokoena was breaking down the wall between his property and

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that of Mr Xaba. In doing so, according to Buthelezi, Mr Mokoena made use of an iron instrument, but it could never be established whether he made use of such object or not. It is also irrelevant for the outcome of this matter. Mr Xaba went to Mr Mokoena's house to discuss the matter, but it seemed that the parties could not resolve the matter. The next day, Mr Mokoena proceeded to break down the wall on his property further. Mr Xaba called the South African Police Services. They informed them that they could not assist, but the result was that Mr Mokoena was arrested for malicious damage to property, and released on bail the same day.

[7]

Mr Xaba, as expected, states that the wall is his property. Of crucial importance is the fact that Mr Xaba is aware of the fact that the wall is situated on the property owned by Mr Mokoena. It is not disputed that:

[7.1]

the wall is situated on land owned by Mr Mokoena;

[7.2]

the parties had discussions in the past about the demolishing of the wall on Mr Mokoena's property;

[7.4]

that Mr Mokoena wanted to demolish the wall when the seller still owned the property, but was asked by the "Chinese" owners to hold on until their development was finalised. They stored building material within the

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property, and the walls prevented theft of their material. Mr Mokoena agreed not to demolish it until they are done with the project;

[7.5]

At a stage Mr Mokoena became aware that Mr Xaba was the owner of the property, and had a discussion about the demolishing of the wall-the content of the discussion, and any agreements reached are in dispute.

[8]

Mr Xaba admits that there were discussions between himself and Mr Mokoena about the demolishing of the wall. Mr Mokoena's version is that Mr Xaba agreed to demolish the wall, and even said Mr Mokoena must proceed, and that he will assist Mr Mokoena. This is vehemently denied by Mr Xaba. He stated that he had no objection to the wall being removed, but that he and Mr Mokoena was supposed to "negotiate" before Mr Mokoena could tear down the wall, as according to him, it was his property. He could not understand why Mr Mokoena had more respect for the Chinese owners than for him.

[9]

As referred to earlier, an agreement was signed between the parties in terms whereof they were supposed to settle the matter

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amicably. Mr Xaba wants R 10 000.00 from Mr Mokoena to allow him to demolish the wall on his own property. Mr Mokoena, not once, but many times, during cross examination of Mr Xaba, When he testified, and during his cross examination, and when he addressed the Court before judgment, stated that the wall belonged to him as it was on his land [5] .

THE COURT A QUO'S FINDING AND JUDGMENT

[10]

The Court a quo found that it was not in dispute that:

"The concrete fence...