Theft trial ‘was fatally irregular’

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A former Pinetown magistrate convicted of theft on Thursday appealed against his conviction and three-year sentence.

Mbongeni Frederick Mathe was found guilty in the Durban Regional Court in June 2007 of stealing R11 000 of maintenance money which should have been kept at the Pinetown court’s cash hall.

He was sentenced to three years’ imprisonment, which meant he would effectively serve six months behind bars.

Mathe is out on bail pending the outcome of his appeal.

Arguing for Mathe before Judge Kevin Swain in the Pietermaritzburg High Court, Advocate Jimmy Howse SC submitted that an integral part of the court record relating to Mathe’s sentencing was not transcribed.

“As matters presently stand, the record has not been reconstructed and is materially deficient. It is impossible to determine the appeal against sentence on the record as it stands,” Howse said, adding that in these circumstances the proper procedure would be to set aside the sentence and remit the matter for sentencing afresh.

Howse said Mathe had admitted receiving R15 000 from one Cynthia Jili, who was the mother and representative of the deceased person’sestate.

He immediately distributed R5 000 to the beneficiaries and the balance of R10 000 was to be deposited in trust via the clerk of the court at the “cash hall” at the Pinetown Magistrate’s Court for onward transmission to the Master’s office, and later distribution to the beneficiaries.

Deposit

Mathe’s defence was that he had given the R10 000 to the estate’s clerk, Mr Zondi, and instructed him to accompany Jili to the cash hall to make the deposit.

Mathe also denied receiving a separate interest payment of R1 200 from Jili at a later date.

Howse said that Jili, who testified for the State, was unable to continue cross-examination as she became tired and the matter was adjourned to the following day.

Jili did not return to court because she had allegedly been admitted to hospital. However, a medical certificate was notgiven to the court. Her daughter testified that her mother had suffered a stroke.

“This was the full extent of the inquiry and the State closed its case. The learned magistrate’s reliance on Jili’s evidence was not only a fatal irregularity, but also a material misdirection.

“It is not understood how the magistrate could exercise his discretion to allow her evidence where it was not challenged under cross-examination,” Howse said.

Howse said the finding by the magistrate that Jili had returned on a later date and paid Mathe R1 000 which he then stole was clearly wrong, as it was based solely on the evidence of Jili.

He argued that it was also significant that the State had not called Zondi as a witness to refute Mathe’s version.

“The onus is on the State to prove all issues beyond a reasonable doubt. The State made no effort to follow up Mathe’s version or call the witness to the stand,” Howse said.

With regard to sentence, Howse submitted Mathe was convicted of theft of a small amount and that he was a first offender with an impeccable work record.

“The sentence is, quite simply, startlingly inappropriate,” Howse said.

Judgment was reserved.