IN THE NORTH WEST HIGH COURT MAHIKENG CA 44/2014. In the matter between: And CRIMINAL APPEAL KGOELE J, GUTTA J

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1 IN THE NORTH WEST HIGH COURT MAHIKENG CA 44/2014 In the matter between: KHITSANE SELLO Appellant And STATE Respondent CRIMINAL APPEAL KGOELE J, GUTTA J DATE OF HEARING : 13 MARCH 2015 DATE OF JUDGMENT : 17 APRIL 2015 FOR THE PLAINTIFF : Adv. J. Engelbrecht (SC) FOR THE RESPONDENT : Adv. S. Jika JUDGMENT KGOELE J: 1

2 [1] The appellant stood trial in the Magistrate s Court of Swartruggens on the following charges:- Main charge = Contravention of Section 4(1) (a) (i) (aa) read with Section 1,2, 4(2), 24, 25, 26(1) (a) of the Prevention and Combating of Corruption Activities Act 12 of Alternative charge = Contravention of Section 4(1)(a)(ii)(cc) read with Section 1,2,4 (2), 24, 25, 26(1) (a) of the same Act. [2] He pleaded not guilty to both charges and was subsequently convicted of the main charge and sentenced to four years imprisonment in terms of section 276(1) (i) of Act 51 of His appeal is directed at both the conviction and sentence. The appellant further sought by notice an amendment of his Notice of Appeal to include further grounds, and the amendment sought was duly granted by this Court at the hearing of this Appeal. [3] The crux of the arguments before the trial Court comprised of a credibility finding because of the direct opposing versions from the appellant and the complainants (the Boulangers). The complainants version was that the appellant solicited a bribe of R from them, which was paid. On the other hand the appellant denied soliciting a bribe. Most of the evidence which was led before the trial Court was common cause. The only issues in dispute were what transpired after the appellant had stopped the complainants for exceeding the speed limit. [4] The complainant, Daniel Xavier Boulanger and his wife s testimony can be summarised as follows:- On 3 May 2012 when they were 2

3 travelling from Swartruggens Plaza Tollgate on the N4 road towards Swartruggens, they were stopped by the appellant who told them that they had exceeded a speed limit by travelling at 73.6 km/h in a 60 km zone. A conversation ensued between them wherein they were told to pay R They were further told that if they pay R they will be allowed to proceed. When they demanded a receipt for the amount they were supposed to pay, they were told by the appellant that receipts are not issued for such trivial amounts and further that it was a bribe. They refused to pay the R and demanded to be issued with a Notice to appear in Court, which was thereafter issued by the appellant. They then proceeded to the South African Police Services at Swartruggens to lay a charge against the appellant and also, paid the fine. [5] The appellant, who is a traffic officer by profession, testified that after he stopped the Boulangers, he requested them to come and see the confirmation of the speed they were travelling at which was reflected on the camera, and they refused. When they wanted to know whether they can pay the fine there on the spot, he replied that it can only be paid at Court or Police Station as he had no receipt book with him. Whilst he was busy writing a Notice to appear in Court, he realised that the Boulangers were taking his pictures. On being questioned by the appellant why they are doing that, they replied by saying it is because he requested a bribe from them. After completing the Notice to appear in Court, he handed it to them and they drove away, but was later called to the Police Station. He denied that he requested a bribe and the evidence of the Boulangers that he only issued the Notice to appear in Court after they refused to accede to his request to hand 3

4 over R as a bribe. misunderstanding. He testified that it was all a [6] The trial Court accepted the evidence of the Boulangers and rejected that of the appellant as being improbable and not reasonably possibly true. [7] Although there were several grounds of Appeal raised, Advocate Engelbrecht SC submitted on behalf of the appellant that the following are the main crux of the Appeal before this Court:- that the trial Court entered into the arena and cross-examined the defence witness; that the trial Court erred by taking the failure of the appellant to supply a reason why the State witness would falsely implicate him; that the trial Court s line of questioning the appellant and the defence witnesses clearly demonstrated a bias adverse to the defence version; that the appellant did not receive a fair trial; that on the probabilities, there was a misunderstanding as alleged by the appellant because he at no stage attempted to dissuade the Boulangers from going to SAPS or concealing his identity. [8] In support of the fact that appellant did not receive a fair trial appellant s counsel relied on a number of passages in the proceedings before the trial Court. I am of the view that they need not all be requoted in this judgment except a few in order to avoid the judgment 4

5 being too bulky. Furthermore Counsel for the respondent, Advocate Jika, conceded in his heads of arguments and during the arguments in Court that the trial Court has indeed participated actively in the leading of evidence in this matter, especially at the time when the defence witnesses including the appellant were cross-examined. [9] A critical reading of the record of proceedings reveals that the trial Court entered into the arena by cross-examining the defence witnesses and the appellant on several occasions whilst not treating the state witnesses with the same conduct. At some stages the trial Court went to an extent of taking over cross-examination by the prosecutor as if they are partners in prosecution. The following can be cited as proof of this;- COURT: PROSECUTOR: COURT: Sorry that is one thing I do not understand were there two different speed measuring devices? That is what I also want to know? Sorry. -- It is one machine it can be used manually or automatically? Is it that, that machine you see the guy sitting next to the road here when you drive to Koster or you drive to Zeerust or you drive to wherever somebody sits there next to the camera and then weeks later you get a notice through the post with a photograph are we speaking of that machine? -- It is manual or automatic sometimes it can just you recall it you stop the car when it is coming or sometimes you just leave it automatically then later the registration number would get it. So it is the same device? -- Yes 5

6 That takes photographs of speeding motorists? -- Yes. And then later they receive through the post the summons, not the summons the notices or later the summons or whatever, you are speaking of the same thing? -- Yes So if the camera takes the photograph why is it necessary for you to stop the people? -- On that day I was using manual so it is when I stopped him writing down the ticket. Whenever he disputes the ticket I go through to the camera and show him here is your speed you were driving and then it shows your car on the screen. But then a separate notice is not issued in Koster through the post? -- No [10] The Trial Court further joined in, in a situation where it appears that the appellant was pressurized for an answer. The following can be cited also:- Right. Let me just ask you this: You said to him that you are going to give him a R fine is that correct? -- Yes So why did you ask Mr Mokoena how much is the fine? -- I did not want him to have a perception that is my knowledge, I am speaking it from just my head. I want him to hear from another person who was there in front of the camera. But why, why? COURT: PROSECUTOR: In other words if he has already told him where to find this why ask somebody else? I ask this oh how much is the fine? 6

7 [11] Again on page 92 of the record, line 20, the trial Court shows its frustration when the appellant does not give the prosecutor the answer he/she requires and the trial Court joins in with a tone which one can conclude was intimidating:- COURT: PROSECUTOR: Oh please come on you were here when they testified? --Yes Now why do you say I do not know, I do not know, I do not know? You see because according to the witnesses it did not happen like you said, like you testified, -- What I know is what happened that day. [12] The following also suggest the trial Court took over cross-examination as it is not clarity seeking:- COURT: Sorry just on this aspect: Whilst you were issuing the ticket these people claim you wanted a bribe is that correct? -- I saw them, whilst writing the ticket start taking photographs and I asked them what is happening and they said to me they are going to lay a charge of bribery against me. So in other words, and I repeat the question to you whilst you were issuing the summons these people started claiming that you wanted the bribe? -- Yes. And they were so adamant that they took photographs?-- They also refused. They were looking for my appointment card. Whilst I was 7

8 showing them my card they were taking a photograph of me. PROSECUTOR: COURT: As they testified? That they took the, you showed them your card, all right, and they were so adamant they said to you we are going to open a case against you? -- Yes. And when they said these things to you were they speaking nicely to you, were they shouting at you, were they angry, were they friendly? -- The driver was angry by the time he took out his license he was looking at the other side. Just stuck out his head. So when you, from the beginning they were aggressive towards you? -- The way they would speak to me they were talking to me nicely but I could see the satisfaction in their faces these people are not satisfied because of this ticket. So in other words what you are saying they were not shouting at you? -- Yes I could see that there was tension. They were not fine. Mr Sello I think the traffic officer s job might be in some respect the same as a magistrate s job it is not nice to be here in court. Now when you stop somebody next to the road you say to him listen you were speeding and you issue them with a traffic fine, do you see many happy faces? -- Sometimes there are people who acknowledge that they have done wrong and they just, I issue them with the ticket and they go peacefully without any hatred or anything. 8

9 Now the Boulanger s that afternoon did they accept that they were speeding? -- He asked me what speed he was driving and I said he was driving 73 in a 60 zone then he said to me I must issue them with a fine. He took out his license and just looked in the other direction. In other words he also acknowledged he was driving too fast? -- He just got his license so I think he acknowledged that he was driving at that speed because I could see the face he was not in a good way. And there was nothing between the two of you that could have gave rise to a misunderstanding? -- According to me I do not think so. In other words what happened, whatever happened then next to the road it is not a question of misunderstanding. The fact that these people went to the police station and laid a charge against you this means they intentionally are fabricating evidence to get you into trouble -- It is true. You said you normally work in Koster is that correct, Kgetleng Rivier but stationed in Koster? -- I am stationed in Koster but we work in Koster, Swartruggens and Derby. When the Boulanger s testified that you told them you can pay the fine in Koster was that a mistake from your side or are they lying about this as well, did you in fact say to them sorry, you said in Koster? -- I did explain them that this fine must me 9

10 paid here at Swartruggens even on the ticket itself it is stated Swartruggens so they asked the specifics for Koster. So the Boulangers are lying when they say you told them you could pay the fine, they could pay the fine in Koster? -- Yes. Sorry Mr Prosecutor I interrupted you for quite a while. [13] The following underlined remarks by the trial Court are not only admissible but unbecoming: COURT: Explain to us what happened? -- About what? Sir the prosecutor is asking you did you testify about everything that happened that day you said yes but obviously you did not. -- When we are on duty we try to concentrate on the driver not on the passenger so our focus was not on the passenger. All right explain to us how it came to be that photographs were taken that day? -- I do not know the reason why she took those photographs. AND COURT: You see that is why the prosecutor asked you whether you have heard everything you were four metres off, you heard everything, if this was said 10

11 COURT: PROSECUTOR: COURT: PROSECUTOR: you would have heard it. -- I have heard some of the things but this one I have not heard anything of. Just a moment. Sorry for interrupting but I think this is important. When the police came to you there where you were along the road and they told you listen there is people there at the police station they want to open a case of bribery against you did you even think that the police was talking about the Boulangers, did you know who might be the people that was at the police station wanting to open a case?-- I did not know. So there at the road when the Boulangers left you could not experience or see from their attitude that they are going to lay a charge or that they are unhappy about being issued with a fine? -- I only saw that they were unhappy. But according to you, you were surprised when you came near to the police station and you saw them there that they want to open? That it was these two people? Ja these two people, you were surprised to see them?. It was not shocking to find them there at the police station. Why, why was it not shocking?-- Because they were unhappy when they drove off. Right. I am going to ask you this, a lot of people that you write out fines are unhappy is that correct? -- Yes. 11

12 COURT But they do not come to the police station and open a corruption case? -- Yes. Ja. So why did you say now testify that you were not surprised when you saw them? -- I was amazed. Ja you were amazed. No, no, in one hand you said no you were not shocked and the other hand you say you were amazed now please decide? -- No I did not understand the question. [14] In R v Hepworth 1928 AD 265 at 277 it was held: A Judge is an administrator of justice, he is not merely a figurehead, he has not only to direct and control the proceedings according to rules of procedure, but to see to it that justice is done. [15] It is trite law that the Court has to conduct the trial to such an extent that its open-mindedness, impartially and fairness are manifest to all those in the trial and its outcome, especially the accused. In this regard one cannot ignore the judgment of the then Appeal Court in S v Rall 1982 (1) SA 828 (A) where it remarked:- While it is difficult and undesirable to attempt to define precisely the limits within which judicial questioning should be confined, the following broad, wellknown limitations should generally be observed: (1) The trial Judge should so conduct the trial that his open-mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused. The Judge should consequently refrain from questioning any witnesses or the accused in a way that, because of its frequency, length, timing, form, tone, contents or otherwise, conveys or is 12

13 likely to convey the opposite impression. (2) A Judge should also refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants. (3) A Judge should also refrain from questioning a witness or the accused in a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility. Any serious transgression of these limitations will in general constitute an irregularity in the proceedings. Whether or not the Appellate Division will then intervene to grant appropriate relief at the instance of the accused depends upon whether or not the irregularity has resulted in a failure of justice (see the proviso to s 322 (1) of Act 51 of 1977). That in turn depends upon whether or not the irregularity prejudiced the accused, or possibly whether or not the Appellate Division's intervention is required in the interests of public policy. Of course, if the offending questioning of witnesses or the accused by the Judge sustains the inference that in fact he was not open-minded, impartial, or fair during the trial, the Appellate Division will intervene and grant appropriate relief. (Headnote). [16] I furthermore cannot conclude without quoting the case of S v Mathabathe 2003 (2) SACR (T) at 33d-e where the following was said to emphasize the above:- While I have great sympathy for judicial officers sitting in the lower Courts in uncomfortable conditions and with inexperienced and sometimes incompetent prosecutors, this cannot excuse what is clearly a substantial deviation from the standard of conduct and impartiality required. There is no justification for swearing and clearly hostile questions of the presiding Magistrate. 13

14 [17] I fully agree with both Counsel that the trial Court seriously transgressed the well-known limitations to questioning by judicial officers as stated in the Rall matter quoted above. [18] I now turn to consider whether the transgression of these limitations by the trial Court constitute an irregularity in the proceedings. It is clear from the judgment on the trial Court that these transgressions prejudiced the appellant s case. This is borne by the fact that the trial Court continuously referred to the issue of why the State witnesses would falsely implicate the appellant when it was evaluating the evidence before it. The following are extracts of the trial Court s judgment:- At the heart of the court s criticism of the accused s evidence in chief is the probability of his version as to why this whole incident happened. Even in his evidence in chief the accused had difficulty in explaining why the State s witnesses would be falsely incriminating him. AND During questioning of the accused the prosecutor also concentrated on the probabilities of the matter. At that stage when the accused was questioned why the Boulangers were lying the accused simply responded that he was also shocked on it. When the prosecutor put it to the accused that the Boulangers could just as easily have claimed that it was Mokoena who was taking the bribe the accused responded by saying I do not know. The prosecutor phrased this same issue in four different ways to the accused. Each time the response was I do not know. The accused s 14

15 reluctance to conceive this point did not make a good impression on the court. There can be no doubt that this failure by the appellant to furnish reasons why the State witness would falsely implicate him influenced the trial Court in arriving at the conclusion it reached and an adverse inference was drawn from his failure to give an answer. [19] In addition, to the prejudice of the appellant the trial Court allowed the State Prosecutor ample opportunity to cross-examine the appellant on why should they falsely accuse him. Of significance is the fact that when the attorney of record of the appellant cross-examined the State witnesses there were no interventions at all by the trial Court. [20] From the aforesaid, I am of the view that the offending questioning of the witnesses and the appellant by the trial Court sustains the inference that in fact he was not open-minded, impartial or fair during the trial and this resulted in a failure of justice. This is the type of a case where the Court has to intervene and grant appropriate relief. The conviction of the appellant cannot therefore stand and fall to be set aside. The need to deal with the other grounds raised together with the Appeal against sentence also falls away. [21] Consequently the following order is made: The appeal succeeds; 21.2 The conviction and sentence of the appellant by the trial Court is set aside; 15

16 21.3 The appellant is acquitted. A M KGOELE JUDGE OF THE HIGH COURT I agree N. GUTTA JUDGE OF THE HIGH COURT ATTORNEYS: FOR THE APPELLANT : Alex Mathe Attorneys C/O Jerry Sithole Attorneys Merlite Building, 1 st Floor MAHIKENG 2745 RESPONDENT : Director of Public Prosecutions Megacity Complex East Gallery 3139 Sekame Road MMABATHO