S v Muthavhini

• Jurisdiction: South Africa
• Judge: Ebersohn J
• Judgment Date: 31 August 2011
• Docket Number: B709/2009
• Court: Limpopo Local Division, Thohoyandu
• Hearing Date: 31 August 2011
• Citation: 2011 JDR 1301 (LT)

Ebersohn AJ:

[1]

This is an automatic review in terms of the provisions of the Criminal Procedure Act, No. 51 of 1977 ("the CPA"). The record was forwarded to this Division and was placed before a judge of this Division and the matter was referred by the judge to the court for consideration.

[2]

The two accused were charged with:

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Ebersohn AJ

a)

assault with intent to do grievous bodily harm by hitting one Steyn Ralufhe Azwinndini with a bottle at or near Mangilasi on or about the 11th December 2009; and

b)

robbery committed on or about the 11th December 2009 at or near Ramukhuba Settlement by assaulting one Lutendo Madavha and stealing from him R320 cash and a Nokia cellphone.

[3]

Both accused pleaded not guilty.

[4]

After convicting the two accused on both counts the magistrate on the 8th February 2010 imposed a sentence of three years imprisonment on each count and ordered that the sentences were not to run concurrently.

[5]

There are aspects of the case causing concern as will appear hereinlater.

[6]

It is clear that an interpreter was used during the proceedings before the magistrate on the 22nd December 2009 when evidence was led. The record reads that the magistrate, after the accused pleaded not guilty, in a most confusing way advised the two accused that (quoted verbatim) "(A)fter altering the plea of not guilty the two of you be informed that in terms of section 205 of the Criminal Code you each are at liberty to can make a statement."

[7]

There is no "Criminal Code" in existence but there is the CPA which regulates criminal prosecutions in this country. If that did not confuse the two accused the reference by the magistrate to "section 205", which merely regulates that certain persons may be summoned to appear before certain judicial officers, which section clearly was not applicable, must have done so.

[8]

Each accused elected to conduct his own defence.

[9]

Each accused disclosed a defence to the effect that he was not even close to where the alleged crimes were committed, in other words an alibi defence with regard to both counts.

[10]

The record then reads that the magistrate advised the two accused that (quoted verbatim) "the prosecution will now be afforded an opportunity to call witnesses and that it would be "unfair of yourself to leave the vital agreements (sic) by each witness unchallenged."

[11]

According to the record one "Steyn Ralufhe" (not Steyn Ralufhe Azwinndini as was alleged in the charge sheet wherein it was alleged that he was 40 years old) was then called

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as a state witness. From facts not appearing in the record the magistrate concluded (quoted verbatim) "(T)he court is realizing that the witness does not realize and appreciate the significance and import of the oath and he is hereby admonished to tell this court the truth..." It is not clear on what grounds the magistrate thereafter accepted, and on what basis he could have accepted, that the witness was telling the truth and understood the "admonishment" whereas the witness could not even understand the simple concept of taking the oath. The concept of an "admonishment" was also not explained to the witness by the magistrate.

[12]

The witness then testified that he visited his friend and that they were walking back and that his friend was accompanying him and the record in a very confusing way reads as follows (quoted verbatim);

"What time was it? ... It was around 21h30.

Yes?... When we approached ... (indistinct) ... school I saw the three guys.

Yes? Then after I saw him I saw those three guys, I just find myself in the middle of them and I only noticed one of them.

Whom did you notice? ... It was accused 1.

When you approached them, when you find yourself between them, how was visibility? ... it was visible.

What was the source of light? ... It was the electric lights from the ... (indistinct) ... school.

Yes, you have been between them, what happened? ... They hit me with bottles on my head.

Yes? ... After that they didn't say even a word.

Did they take anything from you? ... They took my jacket and my cap.

What did accused 1 did to you? ...

COURT: No, he said he only recognise accused 1 by referring to him as Zedala. he did not say he recognise (sic) accused 1.

PROSECUTOR: ... Accused 1.

COURT: Yes, he said he only recognized accused 1 and he is known as Zedala.

PROSECUTOR: ... Yes.

COURT: ... He did not recognize him from his evidence.

PROSECUTOR: ... Number 1.

COURT: ... Number 2.

PROSECUTOR: ... Yes, your worship I am asking him isn't it that he said he recognised 1. So I am asking him what number 1 Zedala did to you? .... He hit me with a bottle."

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Ebersohn AJ

[13]

The record, properly interpreted, shows that the name "Zedala" was not on record until the magistrate used it. Where the magistrate got it from is not clear. It could have been used in court before that but then it was not transcribed and then the record is not correct and it would be an irregularity, and if the record is correct the magistrate got that information from a source outside the court and that would also have been an irregularity.

[14]

According to the witnesses' evidence after he saw one person he saw three more persons and he found himself in the middle of the three persons and obviously not the first person he saw which he later in his evidence referred to as the persons who hit him with bottles on his head. His evidence was most confusing. He in any case then changed his evidence after the magistrate referred to "Zedala" who...