IN THE HIGH COURT OF SOUTH AFRJCA

In the matter between: 
CHRISTOPHER THIBANE 
versus 
THE STATE

JUDGMENT

The appellant stood trial for murder in the Regional Court, Parow, before Presiding Officer Dr Samela. It was alleged that he had murdered the deceased by shooting him several times. His petition for leave to appeal against his conviction was granted by Their Lordships Desai and Davis.

He pleaded not guilty and his defence was one of an alibi. He made certain formal admissions, the import of which was misunderstood by the magistrate, which in turn, in my view, led to various misdirections and irregularities. These admissions were noted in terms of Section 220 of Act 51 of 1977, and they related to the cause of death as being gunshot wounds, the correctness of the post-mortem report, the absence of further injuries to the deceased and the deceased's identity.

The State's case is very simple and without going into great detail, the broad picture is the following. The deceased was sitting in Thembas Spaza Shop, Langa, enjoying some chips and a Coke, while others were drinking and playing pool. The appellant, accompanied by friends, entered the shop, but he then left it. The deceased asked one, Belinda, to go out and see what the appeflant was up to. The appellant came back into the tavern and fired several shots at the deceased with what was described as a pistol similar to that used by the police. The deceased had stood up and attempted to shield himself with an empty beer crate. He had also tried to hide under the pool table, but it was too low to the ftoor and he reverted to the protection of the beer crate. The appellant went outside and from a window he fired more shots at the deceased who was still inside the tavern. The number of shots fired varies from witness to witness.

Apart from this disparity, there are other difficulties relating to the facts of the case, but in view of the conclusions that I have come to relating to the fairness of the trial itself, I will not deal with or make any final judgment on the merits of the State's and defence's respective cases.

The admissions made by the appellant in this case are made every day in the criminal courts in order to shorten the proceedings, but it is important to remember what the admissions do not cover. For instance, the admission of the cause of death and the correctness of the post-mortem report did not absolve the State from:-
a)	Proving the events leading up to and including the actual shooting and that it was the appellant who did the shooting that caused the death of the deceased.
b)	Identifying the firearm if possible from the bullet recovered from the deceased, as well as from the many empty shell casings and embedded bullets in the wall of the shebeen, and reconciling these items with the weapon used by the appellant.
c)	Proving the other elements of the crime of murder.

The language is not very coherent, but 1 have quoted directly from the record.

The prosecutor continued to almost harangue the appellant about this when he gave evidence:-
"I don't know whether you are in a position to explain why you wanted to see if there's a report about the gun or the bullet, are you in a position to explain why you wanted that report? — Yes.

In the context this actually seems to be a reply by the accused justifying why he wanted the ballistics report. The record does not reflect that, but the context reflects that it must have been the appellant saying this.

Now this is extraordinary. As I've said before, this case cried out for a ballistics report and the attitudes of the magistrate and the prosecutor are very difficult to understand and 1 find it disturbing. The resultant misdirections and irregularities in interfering with essential and reasonable cross-examination, as well as querying the defences motives in asking for the ballistic report, cannot in my view be compatible with a fair trial.

“

The criticism of the defence is misplaced, in my view. Instead of berating the defence, the magistrate should have instructed the prosecutor to produce the signed original forthwith. The defence's cross-examination on this aspect then obviously just fizzled out.

When the State witness Maqoboze gave evidence, he said that he had signed his statement, but he had not read it. The defence tried to put contradictory portions thereof to the witness, but the magistrate disallowed it, saying:-

"Enige vraag wat op sy geloofwaardigheid betrekking kon gehad het was dus ter sake en toelaatbaar."

4. When the appellant gave evidence, the magistrate indulged in some inappropriate conduct that, seen cumulatively, is also not compatible with a fair trial in my view. For example, after the magistrate had asked only six questions about appellant's age, place of birth, etcetera, he snapped at him>

"Please answer me, don't waste my time."

When the appellant hesitated about where he had been born. This irritable reaction was uncalled for and was wholly unwarranted.
When the appellant gave evidence in mitigation of sentence, the magistrate cross-examined him on the merits of the case when he asked:-

"What do you think made the witnesses come to court and lie about you committing such a serious crime?"

He also grilled him on why he had not called his mother as a defence witness, extracting evidence that seems to be dangerously close to breaching the attorney/client privilege, and a short extract from the record will illustrate this point:-

"Your lawyer said to you you must call your mother, he wanted to call her to come?"

Answer:-

"He asked me who I'm going to call and I said I'm going to call my mother because I was with her.
So it was your attorney who said you must call her?
The accused's reply is inaudible.   The Court goes on:-

It is realised that these possible misdirections took place during the sentencing phase, and that they are perhaps not all that significant at that stage of the proceedings. However, in my view they all go onto the scale in order to determine the cumulative effect of the misdirections and irregularities on the trial as a whole.

"I am not putting it as a fact or anything, I'm just wanting you to comment about an allegation that the accused may be a gang member?"

I think that this vague and unfounded sort of prejudicial questioning should not have been allowed without a factual basis, and not mere speculation, having first been made.

5. Although there is no appeal against the sentence, the magistrate was quite obsessed with appellant's lack of remorse, which in turn was directly related to his alibi, and there are many references in the record that illustrate this. One extract from the record was addressed to the appellant's mother who was giving evidence in mitigation:-

“

"Now on what? You can't ask something that is new, you can't come here with something new."

"In terms of Section 322(1) of the Criminal Procedure Act, a Court of Appeal may allow the appeal if it thinks that the judgment of the triat Court should be set aside on the ground of a wrong decision of any question of law, or that on any ground there was a 'failure of justice'. Therefore a failure of justice must indeed have resulted from the irregularity for the conviction and sentence to be set aside. In construing when an irregularity has led to a failure of justice, regard must be had to the constitutional right of an accused person to a fair trial, tf an irregularity has resulted in an unfair trial, that will constitute a failure of justice as contemplated by the section and any conviction will have to be set aside."

I agree and it so ordered.

				CLEAVER, J