THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case No: 246/08
No precedential significance

HAROLD NOMAZOZA

Appellant

and

THE STATE

Respondent

Neutral citation: Nomazoza v S (246/08) [2008] ZASCA 151 (27 November

2008).

Coram:
CLOETE, MAYA JJA et BORUCHOWITZ AJA

Heard:
19 NOVEMBER 2008

Delivered:
27 NOVEMBER 2008

Summary:
Guilt of accused not proved.

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ORDER
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On appeal from: High Court, Johannesburg (Horn, Msimeki JJ sitting as court
of appeal).

The following order is made:
The appeal succeeds. The order made by the court below, to the extent that it
involves the appellant, is set aside and the following order substituted:
'The appeal by Harold Nomazoza succeeds. His conviction and sentence are
set aside.'

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JUDGMENT
______________________________________________________________

CLOETE JA (MAYA JA and BORUCHOWITZ AJA concurring):
[1] The appellant stood trial in the regional court of the Southern Transvaal
(Johannesburg) as accused 3 together with four others on a charge of theft of
a motor vehicle. He was legally represented and pleaded not guilty but was
convicted and sentenced to four years' imprisonment. His co-accused,
numbers 1 and 4, were also convicted and accused 2 was acquitted after
conclusion of the State case. The trial magistrate granted leave to appeal to
the Witwatersrand Local Division. That appeal was dismissed but leave to
appeal to this court was granted. There is also an application before this court
to remit the matter to the regional court to hear further evidence.

[2] The State case was that after the complainant's vehicle had been
stolen between 10h50 and 11h15 at the corner of Market and Eloff Streets in
the Johannesburg City Centre, the appellant was found in the driver's seat at
the Farraday taxi rank where the vehicle was being stripped. Inspector Mokobi
said that when he and colleagues arrived at the taxi rank the appellant was in
the driver's seat, accused 1 was in the passenger seat and accused 2 and 4
were at the front of the vehicle by the engine and the bonnet was open.
Inspector Serlongo, who arrested the appellant and could therefore be
expected to know where he was when the arrest took place, said that he was
unable to identify which accused was where, save by reference to the names
as recorded in his statement. However, he claimed to remember that accused
1, who was the only one of the accused who had a light complexion by which
he said he recognised him, was sitting in the driver's seat. He was then
referred to his statement by the prosecutor and he said that it was the
appellant who was seated on the driver's side and accused 1 was in fact on
the passenger's side. Then, in further cross-examination, he again said
accused 1 was in the driver's seat but immediately thereafter said that Harold
Nomazoza, ie the appellant, was sitting there. The only other State witness,

Inspector Ramafemo, could not say where either accused 1 or the appellant
was when they were arrested.

[3] The State case against the appellant therefore depends primarily on
the evidence of Inspector Mokobi. But  both Inspector Serlongo, and Inspector
Ramafemo who arrested accused 2, contradicted Inspector Mokobi as to
where accused 2 was when they arrived; and the magistrate discharged
accused 2 at the end of the State case inter alia on the basis that 'he was not
in front of the motor vehicle', where Mokobi said he was.

[4] The magistrate found that the 'evidence against [the appellant] is
absolutely overwhelming'. As the above analysis shows, the State evidence
was not as solid as the magistrate made out.

[5] The appellant's case was that he left Glenanda Primary School, where
he was employed as a painter, at about 09h30 with the permission of the
headmaster. He went home, collected some documents and took a taxi to the
Johannesburg City Centre where he went to the Old Mutual at 11h30; and ten
minutes later, he went to Capital Alliance. He said that he had documents to
prove all of this but they were not handed in by his legal representative and
after an adjournment, the witnesses who could have supported his version
were not called to testify on his behalf. He was not, however, asked by the
prosecutor to produce the documents and he was accordingly not cross-
examined on their contents. The appellant then said that he had gone to the
Farrady taxi rank to catch a taxi and that he had been there for a while when a
policeman arrested him at a shack a little distance away from the vehicle in
question because, according to the policeman, he had been pointed out as
the person who had been driving the stolen vehicle.

[6] The appellant's evidence that he was an innocent bystander and was
fetched from a shack near the taxi was corroborated by accused 1 (who said
he did not know the appellant) when cross-examined by the prosecutor. The
appellant was not shaken in cross-examination in any way whatever. His
version is not so improbable that it can be rejected out of hand, as the

magistrate did. The record shows that the appellant was in possession of a
document reflecting his visit to Old Mutual and the business he transacted
there, and another document from Capital Alliance generated as a result of
instructions he gave at Old Mutual. I fail to understand why those documents
were not handed in as evidence by the appellant's legal representative. They
plainly did not constitute hearsay evidence, as the magistrate found they
would have done: there is nothing which would offend against the hearsay
rule if a witness were to say 'I visited Old Mutual and they gave me this
document; in consequence of my visit and the instructions I gave, and my
subsequent visit to Capital Alliance, I received that document'. And if the
appellant had legitimate business in the Johannesburg Central Business
District it is unlikely that he would, before transacting that business, steal a
vehicle and after transacting it, assist in stripping the vehicle, particularly
because the State failed to prove any connection, social or otherwise,
between the appellant and his co-accused; and he would have had an entirely
legitimate reason for being at the Farraday taxi rank. I find it unnecessary
however to consider the application by the appellant to lead further evidence
because I am satisfied that the State did not prove his guilt beyond a
reasonable doubt.

[7] In my view the appeal should succeed. The following order is made:
The appeal succeeds. The order made by the court below, to the extent that it
involves the appellant, is set aside and the following order substituted:
'The appeal by Harold Nomazoza succeeds. His conviction and sentence are
set aside.'

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T D CLOETE
JUDGE OF APPEAL

Appearances:
Counsel for Appellant:
S P Janse van Rensburg
Instructed by
David H Botha, Du Plessis & Kruger Inc,
Johannesburg
Symington & De Kok, Bloemfontein

Counsel for Respondent: Ms C E Britz

Instructed by
The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein