In The High Court Of South Africa Gauteng Local Dision-Books Pdf

IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DISION
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INTRODUCTION, 1 This judgement has been necessitated by the application which the accused made. in the Supreme Court of Appeal seeking leave to appeal and permission to lead. further evidence This because the accused s application for leave to appeal had. been dismissed by the Court The Supreme Court of Appeal on 17 March 2015. granted the following order, 1 Application for condonation is granted. 2 Special leave to appeal is granted to the full Court of the High Court Gauteng. Local Division Johannesburg, BRIEF SUMMARY OF WHAT HAPPENED WHEN THE APPEAL WAS HEARD. 2 On 3 March 2017 the appeal was heard by the Full Court of this Division as. directed by the Supreme Court of Appeal, 3 The appeal turned on the affidavits which the accused then applicant used in the. Supreme Court of Appeal when he sought leave to appeal and permission to lead. further evidence These are the affidavits of, 1 Tshepo sipho Mokwana.
2 Siphiwe Mzolo, 3 Sibonginkosi Moyo and, 4 Risimati Thomas Hlungwane. 4 It is noteworthy that the record of the accused s first trial as this is his second trial. had to be reconstructed The record could not be traced and the appeal formed. part of the so called delayed appeals project where the records could not be. traced or had to be reconstructed or where the appeal was brought a long time. after the conviction and sentence of an appellant, 5 The appellant and the respondent were respectively represented by Adv JT. Bauer Mr Bauer and Adv L Mashiane Mr Mashiane Adv Thompson in the first. trial represented the accused while Mr Mashiane represented the State. 6 The Full Court on hearing the appeal found that, The evidence brought forward by the affidavits of witness Mokwana boils down to. a complete recantation of his evidence in the trial and that it accords with his. version advanced in his guilty plea The trial the Full Court referred to herein is. the first trial of the accused The guilty plea relates to the trial of Mokwana that. served before my sister Satchwell J The affidavits as the Full Court further found. had been brought to the Supreme Court of Appeal only in 2015 which was years. after the conviction and sentencing of the accused in his first trial. 7 It is noteworthy that Mr Mashiane during the bail application which the accused. brought after the Full Court set aside his conviction and sentence submitted that. the State respondent in the application only became aware of the accused s. application in the Supreme Court when they received the Order of the Supreme. Court of Appeal It was Mr Mashiane s further submission that the State as a. result could not deal with the matter at that level This could not be gainsaid. 8 Mr Bauer and Mr Mashiane argued their matter in the Full Court which after the. arguments and submissions made the following order. 1 The conviction and sentence of the Appellant are set aside. 2 The matter is remitted to the trial court on the following basis. i The affidavit of the appellant together with the affidavits and the supporting. documents accompanying it is sic admitted into evidence. ii The State s case is re opened for hearing of further evidence. iii The defence is permitted to re open its case should it so decide. iv Should the need arise to call other witnesses in relation to any relevant issues. the trial court is not precluded from allowing and hearing such evidence My. 9 The Full Court after realising the errors in its judgement handed down on 20. March 2017 corrected the said errors as follows, 1 Paragraph 3 is to be deleted and replaced with the following Special leave to. appeal was granted by the Supreme Court of Appeal to the Full Court of the High. Court Gauteng Local Division Johannesburg on 17 March 2015. 2 The first sentence in paragraph 11 is to be deleted and replaced with the. following The evidence brought forward by the affidavits of witness Mokwana. boils down to a complete recantation of his evidence in the trial It accords with. his version advanced in his guilty plea, 3 Prayer 2 of the order is to be replaced with the following.
2 The matter is remitted to the trial court on the following basis. i Tshepo Sipho Mokwana is to be recalled as a witness and the defence is. permitted to cross examine him on the further affidavits. a dated 11 September 2013 G1, b dated 4 September 2013 G2. c dated 2012 G3, ii the State s case is re opened for hearing of further evidence. iii the defence is permitted to re open its case should it so decide and. to lead the evidence of, a Siphiwe Mzolo F, b The investigating officer Lietenant Hlungwani G. c Sibonginkosi Moyo H, iv should the need arise to call other witnesses in relation to any relevant issues the. trial court is not precluded from calling and hearing such evidence. 10 I need to mention that the Court on 25 May 2017 dismissed the application for. bail which the applicant had brought, 11 It is important to mention that the accused in this Division stood trial facing the.
following charges, 1 Count 1 Robbery with aggravating circumstances as defined in Section 1 of. the Criminal Procedure Act 51 of 1997 the CPA read with section 51 of Act. 105 of 1997, 2 Count 2 Murder read with Section 51 of Act 105 of 1977. 3 Count 3 Murder read with Section 51 of Act 105 of 1997. 4 Count 4 Contravention of Section 2 of Act 75 of 1969 Unlawful possession of. 5 Count 5 Contravention of Section 36 read with Section 1 and 39 of Act 75 of. Act 75 of 1969 Unlawful possession of ammunition, 12 The accused on 24 November 2004 was convicted as charged and sentenced on. 1 December 2004 as follows, 1 Count 1 15 years imprisonment. 2 Count 2 Life imprisonment, 3 Count 3 Life imprisonment.
4 Count 4 3 years imprisonment, 5 Count 5 3 years imprisonment. The sentence in counts 1 4 and 5 run concurrently with the sentences in count 2. 13 The accused initially was indicted together with Tshepo Sipho Mokwana. Mokwana who pleaded guilty to the charges Their trials were separated. Mokwana s trial served before Satchwell J while that of the accused served before. me Mokwana turned State witness in the trial of the accused. 14 The Full Court on the basis of the fresh evidence set aside the accused s. conviction and sentence and referred the matter back to this Court as alluded to. 15 On 26 June 2017 Mr Guarneri replaced Mr Bauer and took over the defence of. the accused Mr Mashiane proceeded and represented the State. 16 The State and the defence reopened their cases The accused s first trial was. presided over by the Court which sat with an assessor who is now unavailable Mr. Mashiane in terms of Section 147 1 a of the Criminal Procedure Act 51 of 1977. the CPA applied that the trial proceed before me alone as that would be in the. interests of justice The defence had no difficulty with the application which I. 17 At the very outset I must point out that what revived the matter is the application. which the accused brought in the Supreme Court of Appeal. 18 Evidence was presented to the Supreme Court of Appeal by way of affidavits. Based on the affidavits which became evidence the Supreme Court of Appeal was. persuaded to refer the matter to the Full Court of this Division for its consideration. 19 The Full Court too having considered the evidence which was placed before the. Supreme Court of Appeal together with Counsel s arguments referred the matter. back to the trial court with specific directions referred to in paragraph 8 above. 20 The accused s case is that he should not be convicted if regard is had to the. affidavits of, 1 Tshepo Sipho Mokwana, 2 Siphiwe Mzolo. 3 Sibonginkosi Moyo and, 4 Risimati Thomas Hlungwani. These affidavits according to him confirm his version that he is innocent and that. the version is reasonably possibly true This simply means that he is entitled to a. verdict of not guilty in respect of all the charges. 21 The State on the other hand argued that even after the Court considered the. affidavits referred to in paragraph 20 above the accused remained guilty The. State contended that the affidavits were an invention of the accused and that they. were devoid of the truth, 22 The duty of this Court was to hear new and further evidence and thereafter to. decide whether or not the original verdict in the first trial should stand. 23 Section 316 of the Criminal Procedure Act 51 of 1977 the CPA governs the. hearing of new and further evidence In subsection 5 a the section provides that. 5 a An application for leave to appeal under subsection 1 may be accompanied. by an application to adduce further evidence hereafter in this section referred to. as an application for further evidence relating to the prospective appeal. Subsection 5 b provides that, b An application for further evidence must be supported by an affidavit stating.
i Further evidence which would presumably be accepted as true is. ii If accepted the evidence could reasonably lead to a different verdict or. Subsection 6 provides, 6 Any evidence received under subsection 5 shall for the purpose of an appeal. be deemed to be evidence taken or admitted at the trial in question My. 24 It is noteworthy that, 1 The Supreme Court of Appeal granted the accused special leave to appeal to. the Full Court of the High Court Gauteng Local Division Johannesburg. 2 The Full Court heard the appeal set aside the conviction and sentence and. referred the matter to this Court to hear new and further evidence. 3 This Court simply had to hear the evidence and then decide whether the. accused was still guilty or deserved to be acquitted. 25 This court in arriving at its decision had regard to the provisions of section 316 of. the CPA The Court had to determine if, 1 There was truth in the new evidence and. 2 Whether or not the evidence led to a different verdict. 26 Du Toit De Jager Paizes and Skeen in their work Commentary on the Criminal. Procedure Act at 31 21 state that, The reopening of a case for the purpose of a retrial was not the scenario. contemplated by the Legislature with the introduction of Section 316 5 but a. special procedure to reach a fair decision in special circumstances. 27 Of significance is the fact that the accused placed a lot of reliance on the affidavits. of Tshepo Sipho Mokwana The State was very sceptical about the emergence of. these affidavits It referred to them as an invention of evidence by the accused. 28 To prove that Mokwana had nothing to do with the affidavits which were allegedly. said to be his the State called six 6 witnesses, 29 The defence to prove that the affidavits were made by Sipho Mokwana called.
four 4 witnesses, 30 MDUDUZI MANDLOPA, He was the witness that the State called first He repeated his evidence that he. gave in the accused s first trial He specifically testified that Ekha Moyo was shot. by the accused he referred to as the gentleman in the accused s box light in. complexion His further testimony was that the accused drove the Toyota Camry. motor vehicle which according to him was never shot at He testified that the. accused and his friend were the ones that had fired shots at Ekha Moyo and not. vice versa The name of Tshepo Mokwana being mentioned he testified that. accused s friend he was referring to was indeed Tshepo Mokwana who is dark in. complexion Ekha Moyo according to him had no firearm when he was shot He. accompanied Innocent Mbatha to where Ekha Moyo who was in their company. was shot and injured Ekha Moyo later died in hospital Mbatha was looking for his. missing combi and driver Lunga Zungu Mandlopa and Ekha Moyo walked into the. basement of King Ramson Building They used a Toyota Corolla when they went. to the building Mandlopa worked with Mbatha in the taxi industry for a long time. He helped Mbatha who had various businesses Mbatha had shops taxis and a. funeral parlour Mandlopa specifically denied that he had been paid some money. by Percy Mashiane in order to implicate the accused in this case He testified that. he did not even know Percy Mashiane He started knowing Tshepo Mokwana on. the day that Ekha Moyo was shot He and Ekha found the accused and Tshepo in. the basement, 31 Mr Guarneri informed the Court that he was going to cross examine the witness. while avoiding repeating what was said in the accused s first trial This because. he understood what was to be done as directed by the Full court Mr Mashiane. informed the court that he had to a large extent concentrated on the new. 32 CROSS EXAMINATION BY MR GUARNERI, He testified that Ekha Moyo had informed them that he was there when Mbatha s. combi was robbed He testified that two people shot at Ekha in the second. basement He ran away following the Toyota Camry that the accused was driving. when he chased the deceased Ekha Moyo Mandlhopa testified that the accused. fired about four shots at Ekha while Mokwana fired about three shots The. accused according to him fired further shots at Ekha at the time he was fleeing. Mandlhopa testified that the second basement was well lit and that he was never. fired at This in my view showed honesty on his part It was according to him. highly likely that Ekha was already wounded when he ran out of the second. basement Dealing with the number of shots that were fired and who shot first. between the accused and Mokwana the witness testified that the incident had. taken place many years ago and that he would easily forget some of the things. trial represented the accused while Mr Mashiane represented the State 6 The Full Court on hearing the appeal found that The evidence brought forward by the affidavits of witness Mokwana boils down to a complete recantation of his evidence in the trial and that it accords with his version advanced in his guilty plea The trial

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