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[2016] ZAWCHC 33
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Samuels v S (A558/13, 9/1227/13) [2016] ZAWCHC 33; 2016 (2) SACR 298 (WCC) (31 March 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Appeal
Case No. : A558/13
Magistrate’s
Court Case No. : 9/1227/13
DATE:
31 MARCH 2016
In
the matter between:
JANINA
SAMUELS
..................................................................................................................
Appellant
vs
THE
STATE
............................................................................................................................
Respondent
JUDGMENT
DELIVERED ON THURSDAY 31 APRIL 2016
DLODLO,
J
[1]
This is an appeal against the Appellant’s conviction on a
charge of Contempt of Court and the sentence subsequently imposed
by
the Magistrate – Wynberg district on 7 June 2013
(“the
trial Court”
). The matter is before this Court after Leave
to Appeal in terms of Section 309B of the Criminal Procedure Act 51
of 1977 (“the
Criminal Procedure Act&rdquo
;) was granted by the
trial Court on 2 August 2014.
A
BRIEF FACTUAL MATRIX
[2]
It is common cause that at the time of her conviction, the Appellant
who was then a forty-four (44) year old single mother of
four (4)
children had been living in an informal structure in the area known
as Hangberg together with her sixteen
(16) year old son. She
had constructed the informal dwelling herself on 12 October 2012 and
was then employed as a
contract worker who then earned R180.00
per day. As we gather, the Appellant had been on the
housing waiting
list for fifteen (15) years. This we gather
from Exhibit A which is an extract from the housing data base.
On 31 May
2013 the Appellant appeared before the Court on a charge of
Contempt of Court as mentioned in the introductory portion of this
judgment. Having been advised of her rights as to legal
representation, the Appellant made an election to act in person
and/or to represent herself. On that date she was released from
custody after having been granted bail in the sum of one
thousand
rands. The granting of bail was of course subject to certain
usual conditions. On that particular day the
proceedings were
adjourned and the case postponed until 7 June 2013. The records
specifically mention that the proceedings
were postponed to the
latter date for “
the accused’s
plea
”
.
[3]
According to the charge sheet, the charge against the Appellant
related to her failure to comply with an interim interdict granted
by
this Court on 30 September 2010 and which was made final on 10
November 2011. In the charge sheet the State alleged that
the
interdict applied to the area known as Hangberg, Hout
Bay in the magisterial district of Wynberg and the said
interdict
made the following provisions:
“
1.
Preventing the building, extension or completion and/or fresh
occupation of current or new informal structures (or the re-erection
of those that have been dismantled) on or above the area commonly
known as The Sloot;
2.
Restraining and interdicting the unlawful occupants of erven
33-2844, 33-1510, 33-1860 and any other person from unlawfully
occupying or invading the vacant properties which have been acquired
by the City of Cape Town;
3.
Restraining and interdicting anyone from building, completing,
extending and taking occupation of any further informal structures:
(i)
Anywhere in the area known as Hangberg; and
(ii)
On or above and under the Sloot in Hangberg.”
It
needs to be mentioned that the Second Respondent cited in both the
interim and Final Orders granted by this Court on 30 September
2010
and 10 November 2011 respectively was described as follows:
“
The
unlawful occupants of erven 33-2844, 33-1510, 33-1860 and State land
west of Hout Bay unmeasured and unregistered commonly referred
to as
33-0000/5 Hout Bay whose identities are not known to the Applicants
and those intending to occupy erven 33-8176, 33-8474,
33-2844,
33-1510, 33-1860 and State land west of Hout Bay unmeasured and
unregistered commonly referred to as 33-0000/5 Houtbay.”
[4]
The State alleged in the charge sheet that on 18 January 2013, the
Deputy Sheriff had served a notice on the Appellant notifying
her of
the existence of the High Court Orders and also informing her that
she was in contravention of the Order and giving her
seven (7) days
“
to vacate the informal structure
and demolish it.”
The State
alleged that the Appellant failed to comply with the aforementioned
notice.
[5]
According to the record of proceedings on 7 June 2013 the Appellant
appeared before the Court as scheduled. She confirmed her
earlier
election, namely, to represent herself. The Prosecution put a
charge to her and when asked what her plea was, she
pleaded guilty to
the charge preferred against her by the State. The record of
proceedings, however, does make it appear
that before
the charge was put to the Appellant, the charge sheet was amended in
terms of
Section 86
of the
Criminal Procedure Act to
include, in
reference to the area known as the Sloot, the words “
onder
en and/or under.”
[6]
Upon pleading guilty the trial Court thereafter proceeded to question
the Appellant in terms of
Section 112(1)
(b) of the
Criminal
Procedure Act. Importantly
, in answer to the question
“
waar presies is u
woning?
”
(
by
the trial Court
) the Appellant
answered “
dis langs die
Sloot, maar aan die onderkant van die
sloot. Dis nie op of bo die Sloot nie.”
Strangely
the trial Court then questioned the Appellant as to whether she
received a notice from the Sheriff on 18 January 2013
which stated
that she must “
afbreek en
ontruim.”
The response by
the Appellant to this question was somewhat curious. She
answered “
ek het verstaan
dis `n hooggeregshof bevel en dat ek moes geuit
het, maar ek het nêrens gehad om heen te gaan nie. Daarom
het ek nie
gegaan nie.”
In
answer to the question as to whether the Appellant knew that she was
committing an offence and that she could be punished for
doing so,
the Appellant answered “
Ja.”
[7]
Even though the trial court did not expressly say it accepted and
was satisfied that the Appellant correctly
pleaded
guilty to the charge preferred against her, it does appear to have
accepted the Appellant’s plea of guilty.
One is
obliged to deduce so because the trial court
thereafter permitted the prosecution (ostensibly in
terms of
Section
112
(3) of the
Criminal Procedure Act) to
present evidence on the
charge. The State then led the evidence of one
Jan Gerber, an advocate employed
by the Western Cape Department of
Community Safety. Mr Gerber whose evidence was subsequently
reconstructed, testified
inter-alia
that
he was overseeing the investigation and prosecution of persons
who had breached the High Court Order. At
the conclusion
of his evidence, Mr Gerber proposed that the Appellant be given a
suspended sentence on condition that she breaks
down her unlawful
structure and that should she fail to do so, the suspended sentence
should then be put into operation.
Strangely, the trial court
obliged and proceeded to sentence the Appellant to undergo
imprisonment for the period of three (3)
months the whole of which
was suspended on two conditions. The first condition was that
the Appellant not be found guilty
of Contempt of Court within the
three year period of suspension. The second condition was that
the Appellant “verwyder
and ontruim” her structure on or
before 20 June 2013.
[8]
On 22 July 2013 the Appellant (by that stage represented by the Legal
Resources Centre) filed a simultaneous application for
condonation and an application for Leave to Appeal in terms of
Section 309B
of the
Criminal Procedure Act. The
Appellant
advanced a number of grounds of appeal in the application for Leave
to Appeal. These included but were not limited
to the following
as paraphrased by Mr Magardie:
“
(a)
The court a quo had erred in finding as a matter of fact in finding
that the Appellant was guilty of Contempt of Court;
(b)
The court a quo had erred by permitting the amendment of the charge
sheet which prejudiced the Appellant in her defence contrary
to the
provisions of Section 86 of the Act;
(c)
The court a quo had erred in that having elicited the answers given
by the Appellant pursuant to the questioning in terms of
Section 112
(1) (b) of the Act, the Court ought to have been in doubt as to the
Appellant’s guilt. In these circumstances
the Court ought
to have invoked the provisions of Section 113 of the Act, recorded a
plea of not guilty and required the prosecutor
to proceed with the
prosecution;
(d)
The condition imposed by the court a quo as part of the suspended
sentence, requiring the Appellant to “verwyder en ontruim”
her home, was not legally competent. The condition amounted in
form and effect to an Order evicting the Appellant from her
home, in
circumstances where there had been no enquiry as the relevant
circumstances which Section 26(3) of the Constitution and
Section
4(7) of the Prevention of Illegal Eviction from and Unlawful
Occupation of Land Act 19 of 1998 (“PIE”) requires
to be
considered before an Order is granted evicting a person from their
home.”
APPLICABILITY
OF CERTAIN PROVISIONS OF THE
CRIMINAL PROCEDURE ACT AND
THE RELEVANT
LEGAL PRINCIPLES
[9]
In order to address the concerns that an amendment to the
charge sheet prejudiced the Appellant, it is necessary
to set out
infra
the provisions of
Section 86
(1) of the
Criminal
Procedure Act. It
reads as follows:
“
86(1)
Where a charge is defective for the want of any essential averment
therein, or where there appears to be any variance between
any
averment in a charge and the evidence adduced in proof of such
averment, or where it appears that words or particulars that
ought to
have been inserted in the charge have been omitted therefrom, or
where any words or particulars that ought to have been
omitted from
the charge have been inserted therein, or where there is any other
error in the charge, the court may, at any time
before judgment, if
it considers that the making of the relevant amendment will not
prejudice the accused in his defence, order
that the charge, whether
it discloses an offence or not, be amended, so far as
it is necessary, both in that part
thereof where the defect,
variance, omission, insertion or error occurs and in any other part
thereof which it may become
necessary to amend.”
[10]
It is important to mention that the amendment can be effected “
at
any time before
judgment.”
However, the
probability that the accused person will be prejudiced is, of course,
greater as the trial proceeds to
its end because the
defence would not have borne the amendment in mind. In the
interest of completeness one perhaps needs
to mention that in an
extensive and complex trial involving several charges the central and
decisive particulars have far-
reaching and
important consequences and accordingly the Court will be
slow to allow an amendment at the late stage
clearly because such an
amendment can prejudice the accused person. See
for instance
S v Heller
1971
(2) SA 29
(A);
S v Mpambanso
2013 (2) SACR 186
(ECB).
Fortunately,
in casu
this
has no application.
[11]
The test for prejudice is whether the accused will, (as far as the
presentation of his case is concerned) be in
a weaker position than
that in which he or she would have been had the charge been in
the amended form when the plea was
tendered. This does not talk
to being deprived of a handy technical point.
There will be prejudice
if the accused person could reasonably have
presented or sought other evidence or would have cross-examined
differently had the
charge sheet read differently and an adjournment
or other indulgence cannot remove the prejudice. In the words
of Innes CJ
in
R v Herschel
1920 AD 575
at 580 “
the
cases where such prejudice cannot be avoided by a
suitable adjournment must be few indeed.”
In
the instant case, in my view, prejudice does not even arise.
There is no defence put forth by the Appellant on which the
latter
would conceivably be prejudiced by the amendment. Moreover,
this I prefer to call, cosmetic amendment
to the charge
sheet, hardly raised issues of the moment. The Appellant had
not even pleaded when this amendment was made
to the charge sheet.
To say that it prejudiced her in her defence is untenable.
[12]
In any event after the amendment had been effected the charge
was then put to the Appellant
and she proceeded to plead guilty
thereto. Where is prejudice? The latter is of course a
rhetoric question.
There is none at all. Prejudice
is prejudice to an accused person if the amendment sought and granted
affects the merits
of the defence put forth by the accused person.
Indeed
Section 86
(1) places no onus on the prosecution to establish
the absence of prejudice before the Court may for
instance, order
and/or sanction the changes in the indictment to be
amended. See
S v
Maqubela
and Another
2014
(1) SACR 378
(WCC). Ordinarily where the Court intends amending
the charge sheet, it always must afford the accused person (legally
represented
or acting in person) an opportunity to adduce evidence or
make submissions in order to show prejudice and postpone the
proceedings.
I need to conclude this aspect by stating that the
Court can amend a charge sheet
mero motu
or on the application of either the
State or the accused. I hasten to add though that in each case
the Court should inform
the accused that it is considering an
amendment in order to afford him an opportunity to indicate
prejudice. See
S v Gelderbloem
1962 (3) SA 631
(C).
[13]
There is merit in the contention that the Court ought to have
resorted to invoking the provisions
of
Section 113
of the
Criminal
Procedure Act. The
answer given to the question by the Court
“
waar presies is u woning?”
was as mentioned
supra
“dis langs die Sloot, maar aan die onderkant van die Sloot –
dis nie op of bo die Sloot nie.”
It
is rather unfortunate that the trial court stopped the
Section 112(1)
(b) questioning halfway. But from the answer given it became
abundantly clear that the Appellant may very well not be resident
in
the area covered by the widely worded interdict order alleged to have
been breached.
[14]
Clearly, I would be surprised to gather that the trial magistrate
became satisfied that the Appellant correctly
pleaded guilty to the
charge preferred against her. Her answer to the question of
whether she received a notice
from the Sheriff was in fact more
telling that she never understood nor intended to commit Contempt of
Court. I repeat the
answer
infra
to facilitate this
discussion:
“
Ek
het verstaan dis `n hooggeregshof bevel en dat ek moesge uit het,
maar ek het nêrens gehad om heen te gaan nie. Daarom
het
ek nie gegaan nie.”
[15]
If the last answer can be described as not having amounted to a
defence then I would never comprehend
how otherwise an undefended,
uneducated and unsophisticated accused person must
communicate with the Court in disclosing
her defence on a charge of
Contempt of Court. There was undoubtedly inadequate questioning
by the trial court. But
what was solicited by the totally
inadequate questioning was enough to show that this accused person
actually means to plead
not guilty to the charge preferred against
her. The provisions of
Section 113
were put by the Legislature
in the
Criminal Procedure Act in
their clear wisdom to cater for
instances such as the present one.
[16]
Section 113
of the
Criminal Procedure Act provides
as follows:
“
(1)
If the court at any stage of the proceedings under
section 112(1)
(a)
or (b) or
112
(2) and before sentence is passed is in doubt whether
the accused is in law guilty of the offence to which he or she has
pleaded
guilty or if it is alleged or appears to the court that the
accused does not admit an allegation in the charge or that the
accused
has incorrectly admitted any such allegation or that the
accused has a valid defence to the charge or if the court is of the
opinion
for any other reason that the accused’s plea of guilty
should not stand, the court shall record a plea of not guilty and
require the prosecutor to proceed with the prosecution:
Provided that any allegation, other than an allegation referred to
above, admitted by the accused up to the stage at which the court
records a plea of not guilty, shall stand as proof in any court
of
such allegation.
(2)
If the court records a plea of not guilty under subsection (1) before
any evidence has been led, the prosecution shall proceed
on the
original charge laid against the accused, unless the prosecutor
explicitly indicates otherwise.”
[17]
It must be mentioned that criterion for a change of plea envisaged
in
Section 113
quoted above is reasonable doubt. If the Court
has a reasonable doubt whether the accused person admits, admitted or
still
admits an allegation in the charge sheet or whether such
admission was correctly made regarding either guilt or the possible
existence
of a defence, a plea of not guilty must be noted. As
held in
Attorney-General, Transvaal v
Botha
1993 (2) SACR 587
(A), the
doubt can arise from replies during the initial questioning or during
argument, from information regarding sentence
or from questions there
or from other material which is furnished. The section indeed
applies to the entire process from
the initial questioning until just
before the sentence is imposed on the already found
guilty accused person.
We now live in a Constitutional era.
The Constitution of the Republic of South Africa ensures in Section
35 (3) that the
accused’s right to a fair trial is borne in
mind particularly the accused person’s right to the presumption
of innocence,
the right to remain silent and the right to be
protected against self-incrimination.
[18]
When the presiding officer engages in the questioning of an
accused person who has tendered a plea of guilty
to the charge, he in
the first place seeks to confirm the guilty plea. In fact the
presiding officer under
Section 112 (1) and (2)
acts as an inquisitor and not as umpire, the purpose being to make a
determination whether a trial is at
all necessary. The
accused’s guilt must appear prominently from his or her answers
to the questioning. Thus the presiding
officer determines whether the
accused person’s guilt appears from his or her answers to the
questioning. I fully associate
myself with the sentiments
expressed in
Hiemstra’s Criminal
Procedure
as updated by Albert Kruger
to the effect that the inquisitorial and purely preliminary nature of
Section 112 also manifests itself
in the fact that it is not
concerned with evidence but with unattested statements and that the
process is not a trial but an investigation.
Indeed before an
admission by an accused person during the Section 112
(1) (b) proceedings can stand as proof under
Section 113 (1) the
content and ambit of the admission must be clear. The State
loses nothing when the plea
of guilty is altered to the
one of not guilty in terms of
Section 113
of the
Criminal Procedure
Act. I
say so because all admissions which have not been
withdrawn remain proof of the particular allegation.
[19]
Contempt of Court has essential elements which must be proved,
just like any other crime. Contempt
of Court consists in
unlawfully and intentionally violating the dignity, repute or
authority of a judicial body. See
Milton,
South
African Criminal Law and Procedure
,
Volume ll, 3
rd
edition
1996 page 164. In
S v Beyers
1968 (3) SA 70
(A) it was correctly held
that a person who unlawfully and intentionally disobeys a Court Order
commits an offence. The State
has an obligation (as in any
other criminal prosecution) to prove beyond a reasonable doubt that
the offence was committed intentionally
and with the necessary
mens
rea
. The Appellant
faced a particular species of Contempt of Court in the instant
matter. This is Contempt
of Court
ad
factum praestandum –
non-compliance
with a Court Order requiring a respondent to do or not do something.
[20]
The Supreme Court of Appeal has stated that the test for when
disobedience of a civil order constitutes Contempt
is whether the
breach was committed “
deliberately and
mala fide
”.
See
Frankel Max
Pollak Vinderine Inc. v Menell Jack Hyman
Rosenberg & Co Inc
[1996] ZASCA 21
;
1996 (3) SA 355
(A) at 367 H-I;
Jayiya
v Member of the
Executive Council for Welfare, Eastern Cape
2004 (2) SA 602
(SCA) paras 18 and 19. Mr
Magardie referred us to
Fakie NO v
CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA). The latter case is truly a leading case
on the correct characterisation of Contempt of Court in the
form of
disobedience of a civil Court Order. Cameron JA (as he
then was) writing for the full bench of the Supreme Court of
Appeal stated the following elucidating formulation:
“
Deliberate
disregard is not enough, since the non-complier may genuinely, albeit
mistakenly, believe him-or herself entitled to
act in the way claimed
to constitute the contempt. In such a case good faith avoids
the infraction. Even a refusal
to comply that is
objectively unreasonable may be bona fide (though unreasonableness
could evidence lack of
good faith).
These
requirements – that the refusal to obey should be both wilful
and mala fide, and that unreasonable non-compliance, provided
it is
bona fide, does not constitute contempt – accord with the
broader definition of the crime, of which non-compliance
with civil
orders is a manifestation. They show that the offence is
committed not by mere disregard of a court order,
but by the
deliberate and intentional violation of the court’s dignity,
repute or authority that this evinces. Honest
belief that
non-compliance is justified or proper is incompatible with that
intent.”
[21]
Perhaps it is of paramount importance to mention as well that the
purpose of questioning in terms of
Section 112
of the
Criminal
Procedure Act is
to protect an accused person, who, as in the instant
case, is not only undefended but is clearly uneducated and exhibits
no sophistication,
from the adverse consequences of an
ill-considered plea of guilty. At the risk of repeating what I
have stated already
earlier in this judgment I reiterate that the
questioning and answers must cover all the essential elements of the
offence which
the State in the absence of a plea of guilty would be
required to prove. See in this regard
S v Doud
1978 (2)
SA 403
(O). Botha JA in
S v Naidoo
1989 (2) SA 114
(A)
at 121F stated the following:
“
It
is well settled that the section was designed to protect an accused
from the consequences of an unjustified plea of guilty,
and
that in conformity with the object of the Legislature our courts have
correctly applied the section with care and circumspection,
and on the basis that where an accused’s responses to the
questioning suggest a possible defence or leave room
for a
reasonable explanation other than the accused’s guilt, a plea
of not guilty should be entered and the
matter clarified by
evidence.”
It
remains abundantly clear from the answers given by the Appellant
pursuant to the trial court’s questioning of the Appellant
in
terms of
Section 112
(1) (b) of the
Criminal Procedure Act that
the Appellant’s non-compliance with the Order was not
deliberate,
mala fide
or
unreasonable.
[22]
In the first place the Appellant believed that she was not in breach
of the Court Order. This is evident
from her statement
that her home was not on or above the Sloot. Importantly, the
Appellant told the magistrate that
she did not demolish and
vacate her home as required by the Order because she had
nowhere else to go.
The fact is that there was no
evidence placed before the trial Court to gainsay any of these
statements, in particular that the
Appellant would be rendered
homeless if she were forced to comply with the interdict and the
notice served on her by the Sheriff.
[23]
I fully agree with Mr Magardie that the trial Court ought to have
been in doubt from the questioning of the Appellant
as to whether the
latter had the necessary intention to deliberately and
mala
fide
to disobey the High Court Order.
In effect the Appellant stated that she did not comply with the
interdict because she had
nowhere else to go if she had to demolish
and vacate her informal structure. I mean this was to her for
all intents and purposes
a home and the only home.
[24]
In conclusion, I return to her answer on the questions put to her by
the trial Court. The cumulative effect of her statements
that
her home was not on or above the Sloot, that she had nowhere else to
go (if required to “
verwyder
”
her home) and the fact that the
Appellant was not legally represented, ought to have raised doubt
about whether she
was admitting all the elements of the offence, of a
degree sufficient for the trial Court to invoke the provisions of
Section 113
of the Act. I hold that failure by the trial Court
to act in terms of
Section 113
of the
Criminal Procedure Act in
the
instant matter and in these circumstances constituted a serious
misdirection which indeed resulted in a failure of justice.
The
misdirection which is so serious that it results in the failure of
justice is of course a material misdirection having the
effect of
vitiating the proceedings before the trial Court.
[25]
Indeed the second condition of the suspended sentence imposed by the
trial Court requiring the Appellant to remove and vacate
her informal
structure by 20 June 2014 failing which the three (3) month suspended
custodial sentence would become operative, is
inconsistent with
Section 26 (3) of the Constitution and is thus both incompetent and
invalid. Section 26 (3) of the Constitution
provides that
no-one may be evicted from their home or have their home demolished
without an Order of Court made after considering
all relevant
circumstances. When one considers the sentence imposed on the
Appellant in the instant matter, it becomes
plain that in
effect the sentence compels her to choose between homelessness and
imprisonment. One would have thought that
the Magistrate would
by now be alive at the decision by this Court in
S
v Koko
2006 (1) SACR 15
(C) where the
following guiding formulation was given:
“
Although
the second condition of suspension was, strictly speaking, not an
order for the eviction of the accused from the premises,
it obliged
him to vacate the same by 30 June 2004, failing which he, as
happened, could be arrested and brought before a competent
court in
terms of the provisions of
s 297
(9) of the
Criminal Procedure Act,
for
the purpose of having the suspended portion of the sentence put
into operation or further suspended in the exercise of the court’s
discretion (see S v Titus
1996 (1) SACR 540
(C) at 543 h – i).
As the obvious purpose of the imposition of the second condition of
suspension was to indirectly
achieve the same result as an order of
ejectment, it, for practical purposes, in my view, should be equated
therewith and, in any
event, would ensure that the full measure of
the protection afforded by s 26 (3) of the Constitution is accorded
the accused.”
“
The
magistrate by having imposed the second condition of suspension,
without having conducted an enquiry into and considered all
the
relevant circumstances, in my view, failed to act in accordance with
the law. I, accordingly, incline to the view that
the second
condition of suspension was invalidly imposed.”
[26]
In conclusion it must be pointed out that a Court which grants an
Order the effect of which is to evict a person from their
home is
obligated under Section 26 (3) of the Constitution to take all
relevant circumstances into account before
granting such an Order.
See,
inter alia
Port Elizabeth Municipality v Various
Occupiers
[2004] ZACC 7
;
2005 (1) SA 217
(CC). Eviction Orders are not
ordinarily made by Criminal Courts. It is not necessary for
purposes of this judgment
to enumerate the relevant circumstances
envisaged in Section 26 (3) of the Constitution which must be taken
into consideration
before such an Order can be competently made.
It suffices to mention that the condition requiring the Appellant to
“
verwyder en ontruim
” her home was imposed by the
trial Court without any judicial enquiry at all into the personal
circumstances of the Appellant,
the circumstances under which she
occupied the land in question and built thereon her informal
structure, her knowledge of the
interdict at the time it was granted,
the rights and needs of her children, the consequences of eviction or
the availability of
suitable alternative accommodation for the
Appellant and her children. Counsel representing the Respondent in
this appeal wisely
conceded k,
inter alia
as follows:
“
Die
klagstaat is ook so swak geformuleer dat dit nie duidelik is wat
presies die misdryf was nie. Was dit omdat die appellant
op of
bo of onder die sloot `n struktuur opgerig het?
Die
getuie Gerber het verklaar dat die hofbevel gemik was op strukture
wat “op of bo” die sloot opgerig was.
Dit
blyk verder nie uit die oorkonde wat die bewoording was van die
kennisgewing wat die balju op die appellant beteken het nie.
Dit
is dus glad nie duidelik dat die appellant `n misdryf gepleeg het of
nie en indien wel, sy die nodige mens rea gehad het nie.
Dit
word aan die hand gedoen dat, gegewe die lang tydsverloop, die
skuldigbevinding en vonnis bloot tersyde gestel word.”
ORDER
[27]
On the strength of the above reasoning I make the following Order:
(a)
The Appeal against both conviction and sentence is upheld.
(b)
The conviction and the subsequently imposed sentence are set aside.
(c)
The matter is remitted to the trial Court in terms of
Section 312
of
the
Criminal Procedure Act; the
trial Magistrate is directed to
ensure that the provisions of
Section 113
of the
Criminal Procedure
Act is
complied with.
DLODLO,
J
I
agree
NUKU,
AJ
APPEARANCES:
For
Appellant : Adv S Magardie
Instructed
by : Legal Resources Centre
3
rd
Floor Greenmarket Place
54
Shortmarket Street
CAPE
TOWN
For
Respondent : Adv J H Theron
Instructed
by : Director of Public Prosecutions Private Bag 9003 CAPE TOWN