S v Nchabeleng

• Jurisdiction: South Africa
• Judge: Noorbhai AJ
• Judgment Date: 25 February 1997
• Docket Number: A 126/96
• Court: Venda High Court
• Hearing Date: 25 February 1997
• Citation: 1998 JDR 0182 (V)

Noorbhai AJ:

In this matter the Appellant who was unrepresented, was charged with the theft of a bottle of "Body Mist" valued at R9.60 from Score Supermarket in Thohoyandou on the 26th of February 1996, and was convicted and sentenced to three months' imprisonment without the option of a fine by Magistrate J. Rapudi.

The Appellant in his heads of argument stated that the magistrate in explaining his rights to him at the beginning of the trial did not inform him that if he

1998 JDR 0182 p2

Noorbhai AJ

could not afford legal representation the state would provide such representation for him at no cost to himself. This is indeed so and is evident from the record p. 1 lines 1-5. In not explaining this option to him the magistrate clearly committed an irregularity.

I have in two unreported judgments in this Division in the cases of T.L. Ramuongiwa vs. The State, a review matter on the 27th of March 1996 and in the matter P.J. Bulala vs. The State, in which I sat with my Brother Maluleke in an appeal delivered on 19th of February 1997, dealt in some detail with this question. I do not wish to traverse the same ground but wish to sound the caveat that if magistrates ignore these judgments and other judgments of the High Court, they do so at their own peril.

The only evidence against the Appellant was that of one Leonard Mulaudzi, a security guard employed by Score Supermarket.

Appellant's Counsel, in his heads, pointed out

"There is not sufficient evidence that the Appellant and the Security guard, Mr Leonard Mulaudzi, at any stage engaged in any meaningful communication".

Mulaudzi said in his evidence that he spoke to the Appellant in Venda. Record p. 2 lines 1-5, whereas the

1998 JDR 0182 p3

Noorbhai AJ

Appellant speaks North Sotho and could not understand Mulaudzi. Record p. 2 lines 1-5 and p. 4 lines 1-14.

It is therefore apparent that on an important aspect of the state's case the Appellant did not understand what Mulaudzi said to him and therefore one is completely left in the dark as to what response the actions of Mulaudzi would have elicited from the Appellant.

Mulaudzi testified that on the day in question Appellant was in the Supermarket, he was alone, he was "holding a perfume behind the till", he was "moving up and down", he passed the till, he did not pay, the perfume was in his pocket. Mulaudzi searched him and found the perfume and requested a slip, Appellant did not give him a slip.

Record p. 2-4.

Appellant's...