The state respondent full bench appeal hendricks j, gura j



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IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: CAF 4/2011
In the matter between:
WALTER MTHUTHUZILE NOBULA APPELLANT
and
THE STATE RESPONDENT
FULL BENCH APPEAL
HENDRICKS J, GURA J & KGOELE J
DATE OF HEARING : 18 MARCH 2011

DATE OF JUDGMENT : 19 AUGUST 2011
FOR THE APPELLANT : MR S MOOKELETSI

FOR THE RESPONDENT : MR JACOBS

JUDGMENT


GURA J

[1] The appellant, who was accused no. 2 at the trial, was convicted by the Regional Court of Taung of contravening Sections 11 (2)(b)(iv) (count 1); 20 (count 2) and 21 (count 3) of the Prevention and Combating of Corrupt Activities Act, No.12 of 2004. The three counts were treated as one and he was sentenced to three years imprisonment. With leave of the trial court, he now appeals against the conviction and sentence on all counts.


[2] The appellant and Johannes Mokgotwa (accused no. 1) were arrested by Inspector Ntsonda and charged with stock theft. Ntsonda was also the investigating officer of that case. The appellant was detained at Rooigrond Prison whilst accused No. 1 was in Kgomotso Police Station Cells.
[3] Ntsonda testified to the effect that on 13 October 2005 the accused appeared in Taung Court and he was also there. Sergeant Luato then called Ntsonda saying that the appellant wanted to have a word with him. He accordingly went to the appellant who was by then in the Court holding cells. The appellant asked the investigating officer for this telephone number and he duly gave him his official cell phone number. The appellant promised to call him.
[4] The subsequent day, 14 October 2005, the appellant called Ntsonda and asked him whether he was alone. After he told him that he was with his colleagues, the appellant said it is better that they should not continue with their conversation.
[5] About three days later, on 17 October 2005, the appellant called again. Unfortunately for him, Ntsonda’s cell phone battery was flat so they were unable to talk. After Ntsonda had charged the battery, the appellant called again, it was now in the afternoon. He asked him where he was whereupon Ntsonda said that he was on leave. He then said that he had given Johannes Mokgotwa R2 800.00 so that he could give it to him. He further said that Ntsonda should go to Kgomotso Police Cells to collect this money there (from Johannes). The detective asked what was the money for. His reply was that the money was for the stock theft case and he wanted him to destroy the matter. Ntsonda told him that since he was still on leave, he was unable to do that.
[6] Two days later, 19 October 2005, the appellant called again and urged Ntsonda to try by all means to collect the money on the subsequent day, 20 October 2005. He agreed to that.
[7] Ntsonda reported to his superior and the Anti-Corruption Unit stepped in, a trap was arranged under the keen eye of Superindent Modisadife.
[8] The day of 20 October 2005 dawned like any other day. Ntsonda had Johannes’s cell phone which he had impounded upon his arrest and it was kept at Pampierstad Police Station. In the meantime, he had received several messages from Johannes that he wanted his cell phone. He accordingly went to Kgomotso Police Station where he booked Johannes out and they travelled together to Pampierstad Police Station.
[9] On their way back from Pampierstad Johannes told him that he and Oupa (Oupa is the appellant) had accumulated money and that he (Oupa) had phoned him to ask him to give it (money) to Ntsonda. The latter asked what was the money for whereupon Johannes said that it was his (Ntsonda) so that he could destroy the case docket. He said that he had R2 600.00 which was at Kgomotso Police Station. He promised that on their arrival at the Police Station, he would ask the police to give him this money under the pretext that he was going to pay for a cell phone at Hartswater.
[10] When they arrived at Kgomotso Police Station he took the money out of the SAP 13. They returned to Pampierstad preferably to a place which did not have many people. They settled for the parking area at the shopping complex. After the vehicle was stopped, Johannes gave Ntsonda R2 600.00 cash. He further gave him R10.00 saying the officer should buy fish for him (Johannes).
[11] The officer signalled Superintendent Modisadife who subsequently arrived there and found the R2 610.00 still in his (Ntsonda) hands.
[12] Superintendent testified and corroborated the evidence of Ntsonda on all material respects in regards to the trap.
[13] Inspector Phuduhudu told the court that on 20 October 2005, whilst he was on duty at Pampierstad Police Station, he received a telephone call from a person who called himself Oupa saying that there is a gentleman who will come to Johannes. He said the latter should give money to that gentleman. Phuduhudu relayed the message to Johannes who was by then in the police cells.
[14] The Vodacom statement was handed in to prove that all calls which were directed to Ntsonda by the appellant were from Rooigrond Prison number.
[15] The appellant also testified and did not call any witnesses. After his arrest, he says, they applied for bail which was refused. He was then transferred to Rooigrond Prison. He briefed advocate Strydom to note an appeal against the decision of the court to refuse bail. Strydom charged R6 000.00 for such services.
[16] He then sent one Ndo from Rooigrond to Kgomotso Police Station to tell Johannes that the appellant has secured the services of Strydom at a fee of R6 000.00. Johannes was also supposed to pay his share of the fees to Strydom, through Ndo.
[17] The appellant then called Inspector Phuduhudu and requested him to tell Johannes that he was sending Ndo to him (Johannes) and that he should give him (Ndo) money for the bail appeal.
[18] Two days later when the appellant called Ndo he told him that he did not meet Johannes because the police informed him that it was not a day for visitors to detainees.
[19] Johannes testified (in his own defence) and denied that there was any agreement between him and the appellant to bribe Ntsonda
[20] The trial court convicted the appellant (also) because:
20.1 He had asked for the telephone number of Ntsonda on his first appearance in court and promised to call him;
20.2 He called him several times talking about the bribe and the destruction of the case docket;
20.3 He called from Rooigrond Prison’s landline number; and
20.4 He was the only person who was connected to the stock theft case who was detained at Rooigrond.
[21] The issue is whether it is the appellant who called Ntsonda suggesting a bribe.
[22] Both accused were not legally represented at the trial. During the cross-examination of Ntsonda, the appellant introduced the Vodacom call statement. This document purports to be a “statement issued in terms of Section 213(1) and (2a) of the Criminal Procedure Act.” On its last page, although provision has been made for an oath by the deponent, nonetheless the statement was not commissioned. Therefore this document constitutes inadmissible hearsay evidence. Its authenticity was also not proved. The State has therefore failed to prove that these calls were made from the Rooigrond landline number.
[23] Ntsonda never testified that he knew the appellant’s voice or that he recognised the voice of the caller as that of the appellant. He inferred that it was him because of the reasons stated in paragraph 20 supra. It is my view therefore that the conviction of the appellant (as opposed to that of Johannes), is based on circumstantial evidence.
[24] The following two cardinal rules of logic in inferential reasoning have long been laid down. Firstly, the inference sought to be drawn should be consistent with all the proved facts, if it is not, it cannot be drawn; secondly the inference sought to be drawn must exclude every other inference which can be drawn from the facts, if it does not, it cannot be drawn (R v Blom 1939 AD 188). This principle was further amplified in S v Ntsele 1998 (2) SACR 178 (SCA) at 180e-f as follows:
“When a Court is dealing with circumstantial evidence the Court was not requested to consider every fragment of evidence individually to determine how much weight it had to be afforded. It was the cumulative impression, which all the fragments made collectively, that had to be considered to determine whether the accused’s guilt has been established beyond reasonable doubt.”
[25] The facts upon which the trial Court drew the inference have been set out earlier. In its judgment, the trial Court did not make any adverse finding about the appellant’s demeanour and credibility as a witness. In my view, there is a possibility that the caller who called himself Oupa could be the appellant because he had asked for Ntsonda’s telephone number and promised to call him later. That is the only reason which suggests that he could be the culprit. Apart from Johannes and the appellant, there were other accused who were jointly charged with them. But the ultimate test is proof beyond a reasonable doubt. The facts of this case do not exclude a further possibility that another person may have called to tempt Ntsonda to accept a bribe. In my view, this is a proper case where there is a reasonable possibility that the appellant is not guilty.
[26] The following order is therefore made:-
The conviction and sentence (on all counts) is set aside.


_______________

SAMKELO GURA

JUDGE OF THE HIGH COURT

I concur


_____________

R D HENDRICKS

JUDGE OF THE HIGH COURT

I concur



___________

A M KGOELE

JUDGE OF THE HIGH COURT

ATTORNEYS:
FOR THE APPELLANT: S M MOOKELETSI

FOR THE RESPONDENT: STATE ATTORNEY





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