S v Thilivhali

• Jurisdiction: South Africa
• Judge: Mothle AJ and TJ Raulinga J
• Judgment Date: 01 April 2013
• Docket Number: B284/2013
• Court: Limpopo Local Division, Thohoyandu
• Hearing Date: 01 March 2013
• Citation: 2013 JDR 1993 (LT)

REVIEW JUDGMENT

Mothle AJ:

1.

This mater came to me by way of review. Maise Thilivhali ("the accused") aged 28, was charged with a crime of assault in the magistrate Court, district Dzanani, in Limpopo on 3 June 2013. The accused, who chose to personally conduct his own defence, pleaded not guilty to the charge, but was convicted of

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assault and on 5 June 2013, sentenced to three (3) years' imprisonment by magistrate T N Ramasia. On 31 July 2013, the magistrate sent the matter to the Limpopo High Court, Thohoyandou for review.

2.

Upon reading the trial record, it became clear that the magistrate erred in his conviction of the accused in that he firstly ignored or failed to deal with the evidence of the accused's witness which corroborated his version. Secondly, that evidence supports the version of the accused as being reasonably possibly true. I there and then ordered the release of the accused from prison.

3.

The state alleges that the accused was participating in an illegal gambling activity in the business premises, Rainbow Bar Lounge, of the complainant. The state called two witnesses, Ms Naki Matamela, the complainant and Ms Tshililo Tshikondeni, an employee at the bar lounge. The complainant, corroborated by the employee, testified that on 31 May 2013 she arrived at the bar lounge and noticed a group of boys engaged in illegal gambling on the premises. She ordered them to disperse. The accused, who according to the state's evidence was part of this group, allegedly confronted the complainant, insulting, threatening and humiliating her. She then went to the police to report the matter. The accused followed her to the police station and on his arrival he was arrested. In her evidence, she testified that she had previously warned the accused, through her attorney, not to be seen on the premises.

4.

The accused denies that he confronted, insulted, threatened or humiliated the complainant. He further denied that he was part of the boys participating in the illegal gambling and further the he was not informed that he is prohibited from

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entering the bar lounge. He testified in his defence and called two witnesses, Mr Levy Nyambeni and Ms Tembe Maphila.

5.

Nyambeni testified that he is on parole and does not go to bar lounges. In essence he denied being at the bar lounge on the day in question. His evidence did not take the accused's case any further. As the magistrate correctly concluded, it may well be that Nyambeni was aware of the consequences of admitting being at the bar lounge. He would have landed himself in trouble with possible contravention of the parole conditions.

6.

It is the evidence of Maphila which the magistrate did not even make reference to in his judgment. Maphila's evidence corroborates the accused's version. She testified that it was the...