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[2017] ZAWCHC 82
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S v Jacobs, S v Swart, S v Damon, S v Jas, S v Klaasen, S v Swanepoel, S v Xhantibe (C1191-13; B927-14; 526-14; 14-17; 682-16; 1907-16; 310-17) [2017] ZAWCHC 82; 2017 (2) SACR 546 (WCC) (16 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
[
REPORTABLE
]
In
the matters of:
S
v
JACOBS
CASE
NO: C1191/13
and
S
v
SWART
CASE
NO: B927/14
and
S
v
DAMON
CASE
NO: 526/14
and
S
v
JAS
CASE
NO: 14/17
and
S
v
KLAASEN
CASE
NO: 682/16
and
S
v
SWANEPOEL
CASE
NO: 1907/16
and
S
v
XHANTIBE
CASE
NO: 310/17
JUDGMENT
DELIVERED ON 16 AUGUST 2017
SHER
AJ (HENNEY J concurring):
[1]
We have before us 7 matters which were sent to this Court for
so-called ‘automatic’ review from the Caledon, Montagu,
Vredendal, and Ceres magistrates’ courts in terms of
ss 302
and
303
of the
Criminal Procedure Act 51 of 1977
(“
the
CPA”
), which provide that the record of the proceedings in
which a reviewable sentence has been imposed by a magistrate shall be
forwarded
to the registrar of the High Court within 7 days, in order
that such proceedings may be reviewed by a judge in chambers.
In all these matters the records were sent for review well outside
the requisite period. The breach is particularly egregious
in
the case of the 2 matters from Caledon and the matter from Montagu.
[2]
In
S v Jacobs,
[1]
where the accused was convicted of house-breaking and theft of an
electric grasscutter and was sentenced to 2 years’ imprisonment
in terms of the provisions of
s 276(1)(i)
of the CPA on 7 March
2014, the record was only received on review more than 3 years
after the sentence was imposed and
a year after it would have been
served, that is, on the supposition that the accused served the full
term. In the other matter
from the Caledon court (
S
v Swart
),
[2]
the record of proceedings was sent for review 2 years after the
sentence was imposed. The accused was convicted of
house-breaking
with intent to steal and theft of a small amount of
cash and a cell phone and was given a sentence of 2 years’
imprisonment
which was suspended for 4 years. As will be apparent,
not only was the conviction unsound for the reasons we set out
herein, but
the terms of the suspended sentence were so widely framed
that it could have been put into operation since then in the event
that
the accused sustained a subsequent conviction for any offence
involving dishonesty committed in the period of suspension, no matter
how trivial.
[3]
In the Montagu matter of
S v
Damon
[3]
the accused was convicted of theft of a music system for which he was
sentenced to 2 years’ imprisonment on 19 November 2015.
On 17
June 2016, after he had served 7 months he was released on parole,
but he was re-admitted for violating his parole conditions
on 16
August 2016 and by now he too will long since have served the
remainder of his sentence. The record in his matter was
only
sent to this Court in June 2017, a year and 8 months late.
[4]
The delay in the submission of the record in respect of the 2 matters
from the Vredendal court is in the order of 4 months from
the date
when the sentence was imposed. In one of these matters the
accused, who was convicted of assault with intent to
cause grievous
bodily harm, was sentenced to 18 months’ imprisonment which was
suspended for 5 years on standard conditions.
[4]
In the other matter
[5]
the accused was sentenced to a fine of R2 000.00 or 18 months’
imprisonment half of which was suspended for 5 years,
after he was
convicted of being in possession of certain prohibited
dependence-producing substances.
[5]
In the case of the 2 matters from the Ceres magistrate’s court
the delay between the date of sentence and receipt of the
record by
the Registrar is in the order of 2 months. In one of these
matters
[6]
the accused received a suspended sentence of 6 months’
imprisonment after he pleaded guilty to a charge of common assault
and in the other matter
[7]
the accused was sentenced to a term of 6 months’ imprisonment
after he was convicted on a charge of theft.
[6] From these and other cases which
have come before judges of this division recently on automatic review
it is apparent that non-compliance
with the provisions of
ss 302
and
303
and lengthy delay in the submission of the records of
reviewable matters is fairly endemic throughout the outlying
magisterial
districts of the Western Cape and this judgment
constitutes an attempt, on our part, to put forward certain remedial
measures in
order to correct this situation. In the
circumstances, given the nature of the recommendations we make at the
end of this
judgment and the terms of the Order which we impose, we
direct that a copy of this judgment should be sent to the
Director-General
of the Department of Justice, the Regional Heads of
the Department of Justice and the Office of the Chief Justice for the
Western
Cape, the Director of Public Prosecutions for the Western
Cape, the Magistrates’ Commission, the Regional Court President
(Western Cape) and the Chief Magistrates and judicial
administrative/’cluster’ heads for the various courts
referred
to as well as the Head of Court of each of the magistrates’
courts concerned.
The
legislative provisions
[7]
S 302(1)(a)
of the CPA provides that proceedings in which a
sentence has been imposed by a judicial officer who has not held the
rank of magistrate
[8]
for a period of more than 7 years and which exceeds 3 months’
imprisonment (or R6 000.00) or in the case of magistrates
who
have held the rank for longer exceeds a term of imprisonment of 6
months (or R12 000.00), are automatically reviewable
by this
Court. In addition, s 85 of the Child Justice Act
[9]
provides that
[10]
any matter in which a child
[11]
has been sentenced to any form of imprisonment
[12]
(or any sentence of compulsory residence in a child and youth care
centre) is also subject to automatic review, irrespective of
the
length of the sentence or the period the judicial officer concerned
has held the substantive rank of magistrate or regional
magistrate,
[13]
or whether the child appeared before a district or regional
court.
[14]
Automatic review is not available to an adult accused who was legally
represented at the time
[15]
or who has noted an appeal.
[16]
[8]
Although s 302(1)(a) is couched in terms of a review of the
sentence which was imposed, and although review powers are
ordinarily
confined to considering whether there was any irregularity in the
proceedings, because s 303 requires certification
that the
proceedings are in accordance with justice the reviewing judge is
required to evaluate whether the entire proceedings
ie those
pertaining both to the sentence as well as the merits of the
conviction are not only formally in order and regular, but
also
whether they are fair, and in doing so it has long been accepted that
the reviewing judge exercises a function akin to that
ordinarily
exercised by an appellate court. As such, the process of automatic
review is aimed at ensuring both the validity as
well as the fairness
of the underlying conviction and sentence
[17]
and the powers of the reviewing judge are extremely wide
[18]
and include not only the power to alter or reduce the sentence
imposed
[19]
but also the power to quash the conviction
[20]
or to set aside or “
correct”
the proceedings,
[21]
or to make any other order which may promote the ends of
justice.
[22]
[9]
Automatic review was not derived from Roman-Dutch or English sources
and is a unique creation of our law. In the oftcited
decision
of
Letsin
,
[23]
it was described as an institution of vital importance to the
administration of justice in this country as the great majority of
accused who come before the magistrates’ courts are legally
unrepresented and criminal proceedings in these courts are not
considered to be properly concluded until the reviewing judge has
certified that they were in accordance with justice.
[24]
It was also said that it was part of the “
higher
calling”
of the
magistrates’ courts to see to it that any process in terms of
which a person is deprived of his personal liberty by
means of a
sentence of incarceration receives the
imprimatur
of a reviewing judge as
speedily as possible.
[25]
[10]
In
Manyonyo
[26]
it was held that the reason for the statutory insistence on the
expeditious forwarding of records for review in terms of s 303
is to promote the speedy and efficient administration of justice,
[27]
which should not be compromised by administrative incompetency, and
in
Joors
[28]
this Court
[29]
described automatic review
[30]
as a measure intended to lend substance to the constitutional right
which an accused has to review by a higher court
[31]
and the constitutional right of every detained person to challenge
the lawfulness of their detention.
[32]
The
effect of delay
[11]
Even before the introduction of the Bill of Rights it was an accepted
principle of common law that a gross irregularity during
the course
of a criminal trial could result in a conviction or sentence being
set aside, if it caused a failure of justice.
In
S
v Moodie
[33]
it was accepted that a failure of justice could occur where there was
an irregularity which was so gross a departure from established
rules
of procedure that it could be said that the accused had not been
properly tried
[34]
and in like vein in
S v
Mushimba and Ors
[35]
it was accepted that if an irregularity resulted in an accused not
receiving a fair trial, the conviction or sentence, as the case
might
be, could be set aside.
[36]
[12]
In regard to the effect that gross delay may have on the integrity
and validity of criminal proceedings, we have sought guidance
from
reported cases that have dealt with this issue in both pre- and
post-conviction proceedings.
[13]
In regard to pre-conviction delay, the cases must be considered in
the context of s 342A of the CPA which was introduced
as an
attempt on the part of the legislature to provide certain remedies
where there has been excessive delay in respect of bringing
an
accused to trial. Amongst these remedies is that of a stay of
proceedings and the most important cases dealing with pre-conviction
delay are those that concern applications in this regard. In
summary, the outcome of these cases
[37]
is that a permanent stay will only be granted in exceptional
circumstances or where there is significant prejudice to an accused
were the matter to proceed. Thus, it could fairly be said, the
tendency in regard to pre-conviction delay is not to upset the
applecart save in exceptional circumstances, and the courts will
generally be disposed towards leniency.
[14]
In
Sanderson
,
[38]
the Constitutional Court identified the principle factors which need
to be taken into account by a court in deciding whether or
not to
grant a permanent stay of prosecution on the grounds of undue delay.
[15]
It reiterated what was said in 1963 in
Letsin
[39]
viz that the vast majority of accused in South Africa are
unrepresented and thus to deny them a stay because they have not
asserted
their right to a speedy trial would be to “
strike
a pen”
through the
rights of the most vulnerable members of society.
[40]
At the same time, the Court also pointed out that it would be equally
unrealistic not to recognise that the administration
of the criminal
justice system in this country was under severe stress. These remarks
are still apposite some 9 years later.
[16]
The Court was of the view that the greater the prejudice to an
accused because of delay (be it in the form of continued
incarceration,
restrictive bail conditions or trial prejudice), the
shorter should be the pre-conviction period within which the accused
was to
be tried.
[41]
Consequently, cases involving incarceration or serious “
occupational
disruption or social stigma”
should be prioritised and expedited.
[42]
However, the Court held that delay in itself was not necessarily
determinative and in each case the nature and cause thereof
and the
role of the parties responsible therefor needed to be taken into
account.
[17]
So, for example, where an accused was to blame for a number of
postponements or delays in trial proceedings, he or she should
not be
allowed to rely thereon in order to vindicate his constitutional
right to a speedy trial.
[43]
The Court also recognised that there was a distinction between a
simple and a complex matter which required more time to
prepare, such
as cases where scientific or other analyses or the obtaining of
technical, medical or other expert reports was awaited.
[44]
The Court also expressed the view that systemic delays caused by
limitations in resources were probably more excusable than
individual
instances involving a dereliction of duty. But, at the same time, it
recognised that there had to be some proportionality
between the
sentence which could ultimately be imposed and the prejudice to an
accused caused by delay. So, in matters where
the period of
pre-trial incarceration caused by delay exceeded the maximum possible
period of incarceration which might be imposed
on sentence, the delay
would be considered to be unreasonable.
[45]
And the Court also warned that notwithstanding resource limitations
“
there must come a
time when systemic causes can no longer be regarded as
exculpatory”
[46]
as the Bill of Rights was not a set of aspirational principles of
State policy, and the State should make whatever arrangements
were
necessary to avoid a violation of an accused’s constitutional
rights. The Court further cautioned that delay should
not be allowed
to debase the presumption of innocence and thereby in itself become a
form of extra-curial punishment.
[47]
[18]
In
Bothma
[48]
the Constitutional Court added a further factor (to those set out in
Sanderson)
,
which needed to be weighed in the scale ie the nature of the offence
concerned. It held that:
“
The
less grave the breach of the law the less fair will it be to require
the accused to bear the consequences of the delay.
The more
serious the offence the greater the need for fairness to the public
and the complainant by ensuring that the matter goes
to trial”
.
[49]
[19]
It pointed out that the factors referred to in
Sanderson
should not be dealt with as
though they constituted a definitive checklist and in each case the
court was required to carry out
a balancing exercise
depending
on the facts before it.
[50]
In
Bothma
the issue was whether a 37-year delay in bringing an accused to trial
on a charge of rape and sexual abuse merited a permanent
stay of the
prosecution. The Court pointed out that local and international
jurisprudence recognized that the trauma and
shame suffered by
youthful victims of sexual offences often resulted in criminal
complaints only being lodged many years afterwards,
and public policy
therefore required that delays in regard to prosecuting such offences
should be treated differently. It
drew attention to the fact
that although the CPA provided that the right to institute a criminal
prosecution ordinarily lapsed
after the expiry of a period of 20
years, such a prescriptive bar did not apply in the case of serious
offences such as rape, murder,
genocide, and trafficking for sexual
purposes. This was a consideration which was also taken into
account by the Supreme
Court of Appeal in
Zanner
,
[51]
where the Court held that the societal demand to bring an accused to
trial in the case of a serious offence such as murder was
“
that
much greater”
and the Court should accordingly be that much slower in granting a
permanent stay
[52]
as the right to a fair trial required fairness not only to the
accused, but also to the public, as represented by the State.
[53]
[20]
That then,
as far as the treatment of pre-conviction delay is concerned.
As
far as post-conviction delay is concerned, and appellate delay in
particular, the approach of the Courts has been equally wary.
In
Pennington
[54]
the Constitutional Court referred to the decision of the Supreme
Court of Canada in
R v
Potvin
,
[55]
where it was held that a delay in the appeal process did not infringe
the constitutional right to be tried within a reasonable
time.
But the decision in
Potvin
must be seen in the context
of the particular wording of the relevant Canadian Charter right
[56]
which provided that any person “
charged”
with an offence had the
right to be tried within a reasonable time. The majority of the
Supreme Court held that the reference
to being ‘charged’
did not allow for this right to be extended beyond conviction, to
appeals. The Court adopted the
approach that the remedy for appellate
delay was not the reversal of a conviction as this would be
disproportionate to the interest
that had been harmed by the
infringement, but gross delay might possibly give rise to a right of
action for damages, or some other
form of relief.
[21]
There are two
caveats
that must be noted in respect of the decision in
Potvin
.
Firstly, the Supreme Court of Canada subsequently held in
R
v MacDougall
[57]
that the phrase “
charged
with an offence”
should not be restricted to a particular phase of criminal
proceedings and required an expansive interpretation which covered
both pre- and post-conviction proccedings. In
MacDougall
the delay had occurred in
sentencing proceedings and the Supreme Court took account not only of
the length thereof and the causes
for it, but also the prejudice
suffered by the accused, and it also considered whether by his
conduct he might have waived any
of his rights. It held that an
accused who entered a plea of guilty did not waive his right to be
sentenced within a reasonable
period of time thereafter.
[22]
In the second place, the corresponding right in our Bill of Rights is
phrased differently. It is a right to have a criminal
trial begin and
conclude without unreasonable delay
[58]
and although our general right to a fair trial
[59]
includes as a subspecies the right of appeal to or review by a higher
court,
[60]
this right is not expressly phrased in the context of time,
reasonable or otherwise.
[23]
In
Pennington
the Constitutional Court remarked that although undue delay in the
prosecution of a criminal appeal was undesirable, to say that
guilty
persons were to be excused from serving sentences imposed on them
because of delays associated with an unsuccessful appeal
would not be
consistent with fairness or justice.
[61]
But these remarks were
obiter
and the Court expressly left open the question of whether undue delay
might constitute an infringement of the constitutional right
to a
fair trial.
[62]
[24]
In
Sochop
[63]
this Court raised the question of whether an accused’s
constitutional right to have their trial begin and conclude without
unreasonable delay extended to appeal proceedings and, if so, whether
unnecessary delay could in and of itself result in an acquittal.
Blignaut J referred to a number of judgments in international
jurisdictions where the issue had been raised but not decided
conclusively,
one way or the other. In
Sochop
there had been a 5-year delay between the noting of an appeal and the
hearing of it, which was largely attributable to problems
in the
provision of Legal Aid. The Court pointed out that delays of
this kind prejudiced not only an appellant, but brought
the whole
criminal justice system into disrepute and the Court found it
especially disturbing that there were insufficient control
mechanisms
in place in the provision of Legal Aid to ensure that lengthy delays
could be avoided.
[64]
But, as the conviction was found to be unsound in any event, the
appeal was upheld on this ground and as far as the delay
was
concerned the Court simply directed that the judgment be brought to
the attention of the Director of Public Prosecutions and
the Legal
Aid Board.
[25]
The way in which appellate courts have dealt with the issue of delay
may be contrasted with how it has been dealt with by courts
before
whom matters have come on automatic review. Already in 1963 in
Letsin
the Court sought to place an obligation on presiding magistrates to
see to it that criminal trials were properly concluded by ensuring
that the record of proceedings were placed before the High Court for
review as speedily as possible.
[65]
In
Letsin
the
delay was minimal: the record was sent on review 9 days after
sentence instead of 7 and when reasons for the delay were requested
from the magistrate these were supplied a month later.
[26]
In
Raphatle
[66]
a 2-month delay in submitting the record was described as a matter of
“
great concern”
.
[67]
But the conviction was set aside on the grounds of another
irregularity, to wit that the presiding officer had failed to inform
the accused of his right to cross-examine.
[27]
In
Manyonyo
[68]
the remedy which the Court adopted for a (5 month) delay in
submitting the record was to direct that the magistrate should
provide
a full explanation to the Court, and since then this has come
to be expected practice
[69]
in the case of lengthy delay, but sadly, it is a practice which is
often not adhered to. The Court pointed out that the reason
for the
statutory insistence on the expeditious transmission of records on
review was to promote the speedy and efficient administration
of
justice, and to ensure that an accused was not detained unnecessarily
in matters where the reviewing Court might set aside a
conviction or
sentence. It raised the question whether lengthy delay
did not
per se
constitute a failure of justice which would preclude certification
that the proceedings were in accordance with justice,
[70]
but ultimately it held the delay in
casu
was not a sufficient ground
to set aside the conviction.
[71]
[28]
In 1998 this Court
[72]
reaffirmed in
S v Lewies
[73]
that the whole purpose of automatic review was to ensure that an
accused had a fair trial and one of the essential elements thereof
was to obtain finality in the proceedings as soon as was feasible.
Consequently, a delay of 3 months was held to have resulted
in a
serious miscarriage of justice for which the Court expressed the
strongest disapproval.
[74]
But, once again the Court stopped short of setting aside the
conviction on this ground and the review succeeded on the basis
that
the accused had been wrongly convicted, as his version had been
reasonably possibly true.
[29]
Six years later, in
Maluleke
[75]
a delay of more than 3 months was described as ‘certainly’
constituting an infringement of the accused’s rights
to a fair
trial, but the Court also stopped short of finding that it
constituted sufficient grounds for setting aside the conviction.
[76]
With reference no doubt to the approach adopted by the Canadian
courts (as referred to in
Pennington
)
it pointed out that there were 3 possible ways one could deal with
the issue of undue delay in automatic reviews. One approach
was
to only allow for a claim in damages, whilst another was to adopt the
attitude that as the accused still had a right to appeal
or institute
his own review, delay should not in itself ever result in the
proceedings being set aside. The third approach
was to hold
that where the delay was serious and no cogent and convincing reasons
therefor had been provided, the proceedings could,
in certain
instances, be set aside. But the Court held that it was not
necessary for it to make a determination in regard
to which approach
was to prevail, and as in the previous matters we have referred to it
held that the matter was capable of being
disposed of on other
grounds.
[77]
[30]
In the same year, this Court took the view in
Joors
[78]
that the extent to which the statutory provisions may have been
ignored to the resultant prejudice of an accused might, in itself,
constitute a factor material enough to exclude confirmation by the
reviewing judge of the proceedings
a
quo.
The Court held that
the relevant provisions “
certainly
bear closely enough on the concept of what is included in a fair
trial to beg the question as to what the result should
be of so
material an infringement of the right”
.
[79]
However, ultimately it too was loath to express a definitive view,
one way or the other, as to whether an egregious breach
of the
provisions in question could, of its own, result in a conviction
being set aside. In this regard the Court referred
[80]
to the ‘dubious’ consequence of completely absolving a
person of liability where there had been undue delay, but it
too left
the question open and was content with simply directing that a copy
of the judgment be referred to the Director of the
Legal Resources
Centre for consideration as to what assistance should be given to the
accused in order to achieve appropriate redress.
But, in doing
so, the Court expressed the view that there was no reason why
judicial pro-activism should be limited when it came
to the act of
fostering respect for the rule of law and an individual’s
constitutional rights.
[81]
[31]
In 2013 in the matter of
S v
VC
,
[82]
there had been a delay of 7 months from the time when the accused was
sentenced to the date when the record was forwarded for review.
The Court found that the delay had impacted on the fairness of the
trial, but its findings in respect of the consequences thereof
were
contradictory. It held, in one and the self-same paragraph,
[83]
that the failure to comply with the provisions of ss 302 and 303
constituted a failure of justice as a young offender had
been
deprived of recourse to the review process and had already served 10
months of the sentence which was imposed on him by the
time the
matter came under review, but it also found that the delay did not
constitute an irregularity, and ultimately it interfered
with the
sentence on the basis that it was unduly harsh.
An
evaluation: some guiding principles
[32]
The Constitutional Court held in
Zuma
[84]
that the right to a fair trial embraced a concept of substantive
fairness which was not to be equated with what might have passed
muster in our criminal courts prior to the advent of the
Constitution. An accused’s right of review and appeal is
a subsidiary part of this overall right to a fair trial.
[33]
Although the cases pertaining to pre-conviction delay are useful and
the principles set out therein offer some guidance, in
our view there
are a number of important distinctions between pre-conviction and
post-conviction proceedings which must be borne
in mind.
[34]
The principle consideration pre-conviction is that offenders should
be brought to justice, and with a view to realising this
objective
courts have leaned in favour of tolerating delay provided no other
irregularity is discernible in the proceedings.
This approach
has as much to do with the aim and purpose of bringing offenders to
book as it has with the realities of the constraints
upon the
criminal justice system in regard to limited resources, congested
court rolls and over-burdened courts. However,
it occurs to us
that post-conviction there is a somewhat inverse relationship with
delay inasmuch as the aim of the proceedings
is to obtain the court’s
confirmation of the integrity of the conviction and the fairness of
the sentence which was imposed
as soon as possible and generally, at
the post-conviction stage of criminal proceedings which originated
from the magistrates’
courts, there is much less congestion in
the criminal justice system and a lack of resources will not
ordinarily constitute a factor
of substance. As such, there is
much less room for delay to be tolerated post-conviction than pre-
and the objective should
surely be to process appeals and reviews as
expeditiously as possible.
[35]
In the second place, whereas the enquiry into pre-conviction delay is
generally more complex, and involves a number of elements
and factors
which are to be put into the scale such as the conduct of the
prosecution, possible motives for laying false charges,
the loss or
dissipation of evidence through the death of witnesses and the
disintegration of evidentiary material, the enquiry
in respect of
post-conviction appeal or review delay is generally a much simpler
one and the causes are usually much easier to
ascertain.
[36]
Thirdly, whilst it is so that in the context of delay the seriousness
of an offence is highly relevant pre-conviction ie the
more serious
the offence the greater the need for fairness to the public and the
complainant by ensuring that a matter proceeds
to trial and therefore
the greater the tolerance for delay,
[85]
in post-conviction proceedings the converse may often be applicable
ie the more trivial an offence for which a person has been
sentenced
to a term of incarceration or a sizeable fine, the more urgent and
compelling the need to have a speedy review or appeal.
The
contrast between the vantage points from which the courts approach
pre- and post-conviction proceedings, is aptly illustrated
by the
remarks of Sachs J in
S v
Coetzee and Ors:
[86]
“
The
starting point of any balancing enquiry where constitutional rights
are concerned must be that the public interest in ensuring
that
innocent people are not convicted and subjected to ignominy and heavy
sentences massively outweighs the public interest in
ensuring that a
particular criminal is brought to book”
.
[37] In our view, in order to maintain
the integrity of the criminal justice system and public confidence
therein it is important
that the system of automatic review which is
supposed to provide for a free, far-ranging and expeditious review by
the High Court
of proceedings in the lower courts, should be an
effective process, otherwise, quite frankly, there is no point to
it. Even
though the provision of Legal Aid has been expanded
dramatically in the urban metropoles, it has still not effectively
been extended
to outlying areas where poverty and crime are often at
their worst. We have frequently noted, when considering records in
automatic
reviews and criminal appeals which emanate from
magistrates’ courts which are located in outlying and
under-resourced areas,
that whilst many accused indicate on the
occasion of their first appearance that they would like to avail
themselves of legal aid
assistance, when it does not materialise and
they face the prospect of further extended delay whilst in custody
awaiting trial,
they often subsequently elect to conduct their own
defence in order to expedite the proceedings. The system of automatic
review
therefore still fulfils an extremely important function in the
administration of justice, at a time when great poverty and rampant
crime combined with a lack of legal aid resources often coincide and
are common features of our daily experience in the criminal
justice
system. And it serves as an important check on criminal proceedings
involving children.
[38]
In addition, in our view it would be unfair and fallacious to adopt
the attitude that if a conviction is sound, any post-conviction
delay
in the automatic review process is inconsequential and should always
be condoned. That would mean that only the innocent
are entitled to
an expeditious review. Apart from the arch cynicism inherent in such
a proposition and the fact that it goes against
the fundamental grain
that all are entitled to be treated equally before the law, it also
suffers from a failure to appreciate
that it is only if one has an
expeditious system of review that we can identify those unrepresented
persons who have been wrongly
convicted or sentenced, and thereby
prevent them from serving sentences that they should not.
[39]
Thus, if we are to be consistent and true in our application, where
an irregularity pertaining to delay in an automatic review
matter is
egregious and has resulted in prejudice to an accused, and such
irregularity has not been brought about through any act
or fault of
the accused, it should be treated in no lesser fashion than it would
ordinarily be treated in the context of the general
principles
applicable to a criminal trial ie that if there is a failure of
justice, this could, depending on the circumstances,
result in a
vitiation of the proceedings as a whole. Without the lower
courts being at risk in this regard there will be
no incentive for
them to ensure that the peremptory requirements of the statutory
review provisions are complied with and that
there is due and proper
adherence to the time periods and the procedures prescribed.
The very fact that from 1963 to date
the law reports are littered
with cases in which judges have regularly lambasted magistrates for
failing to comply with the provisions
in question (either by sending
through records well outside the time limits provided or by failing
to ensure that the records are
complete), illustrates that the system
is not working and that it is high time that effective measures be
put in place to rectify
this.
[40]
In our view, if an accused’s constitutional right of review is
effectively stymied and rendered nugatory because of egregious
delay,
for example where, by the time the matter is reviewed he has already
served the sentence that was imposed upon him, his
constitutional
right to a fair trial has been infringed and this may constitute a
failure of justice and a ground for the Court
not only to decline to
certify that the proceedings are in accordance with justice, but also
to set aside or correct the proceedings
[87]
or to make any other order in connection with the proceedings as
will, to the Court, seem likely to promote the ends of justice.
[88]
Judicial pro-activism requires that this Court move beyond being a
passive bystander lamenting lengthy and unnecessary delays
in the
automatic review process without doing something practical in order
to attempt to remedy systemic deficiencies and indeed,
in the
interests of justice the Court has a duty not only to the accused in
the matter before it but also to other unrepresented
accused who may
have been sentenced at a particular magistrate’s court where
there is a clear problem, to ensure that effecitive
measures are
taken to resolve such deficiencies.
[89]
[41]
Why the legislature saw fit to stipulate in s 303 that
proceedings subject to review must be sent to the High Court within
7
days from the date when the sentence is imposed, is not clear when,
as a matter of practicality, particularly where evidence
is led, it
will almost always be impossible for a magistrate to comply with this
time period. The reviewing judge must be
alive to this in-built
difficulty which almost in itself sets the system up to fail and it
should not be understood that this judgment
in any way seeks to lay
down a general principle or rule of law that mere non-compliance with
the peremptory period will in itself
constitute an irregularity, or
that if it constitutes an irregularity it will be of such a nature as
to necessarily and inevitably
vitiate the entire proceedings.
Each matter will have to be decided on its own facts.
Towards
some remedial measures
[42]
Already 7 years ago on 15 February 2010 the Chief Magistrates’
(Heads of Court) Forum noted
[90]
that it had been brought to their attention by judges of the High
Court and via judicial quality assurance reports that problems
were
being experienced with review and appeal matters not being processed
timeously and that “
serious
prejudice”
was being
caused thereby to the administration of justice. In the
interests of accountability and with a view to ensuring
that such
matters were attended to timeously and effectively the Forum
accordingly resolved that all magistrates were to keep personal
review and appeal registers which were to be checked, monthly, by the
magistrate of the district or the responsible senior magistrate
concerned. A specimen template datasheet was attached to the
resolution which set out the information which magistrates were
required to record in respect of reviewable sentences. This
information includes particulars as to the relevant dates when
the
sentence was imposed and when the record was sent for typing and
transcribing, as well as the date when the matter was despatched
to
the High Court. The datasheet also makes provision for recordal
of the dates when any query was raised by the reviewing
judge and
when the matter was returned to the High Court and finally, it makes
provision for insertion of the date when the matter
is returned from
the High Court, and the outcome of the review.
[43]
This resolution has been adopted by the magistracy as a performance
standard. Laudable as its contents may be, it appears
that as
each magistrate is required to keep their own personal register of
automatic reviews, control and supervision of these
matters still
lies largely in the hands of the individual magistrate and it does
not appear that the Heads of Court exercise effective
oversight over
these registers. Administratively, the registers resort primarily
under the control of the clerk of the relevant
court who accounts,
insofar as office statistics and records are concerned, to the Office
and Court Managers, who in turn account
to the Regional Head of the
Department of Justice. As we understand it, although the clerk
is also required to report monthly
to the Head of Office, outstanding
reviews are not included in the monthly reporting by the Head of
Office to the respective Chief
Magistrates and the judicial (or
so-called “cluster”) heads for the administrative regions
nor is a record of outstanding
reviews included in the
reporting which is rendered by these Heads of Court and the Regional
Court President to the Judge-President
of this Division.
[91]
[44]
As a result, because control over automatic reviews is still largely
a matter for the individual presiding magistrates concerned
and is
not regulated as part of a systemic uniform practice applicable
throughout the Western Cape magistracy the mechanisms in
place to
ensure that automatic review records are prepared and sent to the
High Court as soon as possible are fragmented and inadequate.
(i)
The introduction of an outstanding automatic reviews list
[45]
It has occurred to us that one of the possible mechanisms which might
be instituted as a remedial measure in this regard is
the
introduction of an outstanding automatic review list, modelled along
the lines of the reserved judgment list which certain
divisions of
the High Court now keep,
[92]
in which the particulars of all outstanding judgments with reference
to the case number and names of the parties and the judicial
officer
concerned is recorded. Inasmuch as this list is circulated not
only internally amongst judges, but also amongst members
of the
profession and the Office of the Chief Justice it has a salutary
effect in pressuring judges to ensure that their judgments
are handed
down within the period prescribed, save in exceptional
circumstances. It occurs to us that, were such a list to
be
kept in respect of outstanding automatic reviews from each
magistrates’ court within the Western Cape, and collated
regionally,
it would immediately be apparent to the Chief Magistrates
and the Regional Head of the Department of Justice when difficulties
are being experienced at a particular court, and the necessary
resources could immediately be diverted thereto in order to address
the problem.
[46]
In our view what we are proposing will not constitute an additional
burden on over-worked magistrates. In
Nyumbeka
[93]
this Court previously held that even though the preparation of
records for automatic review is primarily a function of the
administrative
component ie the clerk of each magistrate’s
court, it is ultimately the function of the magistrate concerned to
see to it
that a proper and complete record of the proceedings and
sentence that has been rendered in a particular matter that the
magistrate
has presided in, is sent to the High Court.
[94]
As was pointed out in
Letsin
a criminal matter which commences in the magistrate’s court is
not completed until any outstanding review in respect thereof
has
been concluded in the High Court and, in our view, in the same way as
it is the magistrate’s duty to hand down a judgment
timeously
in respect of both the conviction as well as in respect of the
sentence, in terms of
Nyumbeka
it is also accepted that post-sentence the magistrate’s duties
include ensuring that the record is properly prepared and
timeously
dispatched to the High Court. As such, (as was pointed out in
Letsin
and
Nyumbeka
)
magistrates have duties and functions which go beyond merely
adjudicating the matters before them. In terms of the
Constitution
and the law they have a duty to ensure that judgments of
their Court and matters relating thereto are given effect to and they
should not sit idly by and take it for granted that the
administrative component of their courts will implement and give
effect
to their directives.
[95]
The introduction of an outstanding automatic review list might serve
to spur magistrates on to take more responsibility for
their duties
in this regard and where there are deficiencies may also serve to
ensure proper oversight and assistance with the
provision of the
necessary resources from the relevant Office and Court Managers,
Heads of Court, Chief Magistrates and administrative
region/cluster
heads, as well as the Director-General and the Regional Head of the
Department of Justice.
[47]
The Heads of the Magistrates’ Courts within this division,
including the Regional Court President and the heads of the
administrative regions are required to account to the Judge-President
for the management of their courts
[96]
and the Judge-President is responsible
[97]
(subject to the over-arching authority and control of the Chief
Justice as Head of the Judiciary) for the co-ordination of the
judicial functions of all such courts. Those functions include the
management of procedures to be followed in respect of case flow
management
[98]
and the finalisation of any matter before a judicial officer
including any outstanding judgment, decision or order.
[99]
Case flow management is directed at enhancing service delivery and
access to justice through the speedy finalization of matters
and is
co-ordinated via the Provincial Efficiency Enhancement Committee,
which is led by the Judge-President.
[100]
In the circumstances, whether the introduction of an
outstanding automatic review list is feasible and whether it will be
an appropriate measure which will serve to assist in ensuring that
automatic reviews are processed and finalised efficiently,
effectively and expeditiously
[101]
is a matter that should be taken up by the relevant stake-holders and
Heads of Court with the Judge-President and the Provincial
Efficiency
Enhancement Committee, in conjunction with the Regional Head of the
Office of the Chief Justice.
(ii)
Audits and report-back
[48] Given the particular problems
experienced at the Caledon and Montagu magistrates’ courts we
are of the view that the
heads of those courts should account to us
(and the responsible Chief Magistrates and administrative/cluster
heads as well as the
Regional Head of the Department of Justice and
the Magistrates’ Commission), retrospectively in respect of all
matters involving
reviewable sentences which were imposed by their
courts within a period of 3 years from date hereof, in terms of the
order which
is set out hereunder. This will enable us to determine
whether there are other accused who are in custody who are awaiting
but
unable to exercise their constitutional right of review, as well
as accused whose right of review has been rendered nugatory because
of undue delay, and will also reveal the extent of the problem at
these courts. The Heads of Office of the Caledon and Montagu
magistrates’ courts are accordingly directed to furnish this
Court within 30 days of the date of this judgment with a record
of
all reviewable sentences which were imposed within this period, which
record should be in the format and should contain the
information as
per the template datasheet attached to the resolution of the Chief
Magistrates’ Forum of 15 February 2010.
[102]
[49] In addition, given the endemic
nature of the delays experienced at all the magistrates’
courts from whom
we have matters before us, we direct that the
Regional Head of the Department of Justice (with the assistance of
the relevant administrative/cluster
heads and Chief Magistrates)
should conduct an audit in respect of administrative deficiencies and
lack of resources at all of
such courts, and we invite the Regional
Head to report back to this Court in 3 months in respect of the
outcome of such audits
and any remedial and disciplinary measures
which have been instituted pursuant thereto, in order to address
these deficiencies
and lack of resources.
[50]
In this regard we draw the attention of the Regional Head (and the
administrative/cluster heads and Chief Magistrates and the
Magistrates’ Commission) to the explanations which were given
by the Head of Office of the Caledon and Montagu magistrates’
courts in respect of each of the matters from those courts which are
before us.
(iii)
The appropriate orders in respect of the 7 reviews
[51]
In the matter (ex Caledon) of
S
v Swart
[103]
the Head of Office, who was also the presiding officer, states that
the record was forwarded to the clerk of the court on 26 February
2015 for the proceedings to be transcribed but was “
once
again not correctly recorded”
(sic) by the DCRS clerk (this is presumably a reference to the clerk
responsible for the court’s digital recording system).
The
presiding officer has not provided any explanation for why she did
not follow up on the transcription or the preparation of
the record
thereafter, and it appears that she simply left the matter up to the
clerk of the court and the DCRS clerk.
[52]
From the sworn affidavit which was provided by the Office Manager it
appears that although the clerk of the court made a note
in the
review register to the effect that ‘a’ CD from the DCRS
clerk was awaited, there was no follow-up and the matter
was returned
to the presiding officer for her attention on the same day and “
no
movement happened afterwards”
(sic). The Office
Manager states that at some stage (no date is provided), it was
discovered that the clerk of the court
had never received the compact
discs from the DCRS clerk and had also never reported that she was
experiencing any difficulties
in regard to the preparation of the
record.
[53]
It was only on 22 June 2016, a year and a half after the
sentence had been imposed, that it was noted (by some undisclosed
person) that the record was still outstanding and a “
call”
was logged requesting that the recordings be retrieved. How it came
about that neither the presiding magistrate nor the DCRS clerk
or
Office Manager took any steps at all to follow up on the matter until
then has not been explained, and there were clearly inadequate
control measures in place from the start. The Office Manager avers
that the relevant discs were only received on 7 September
2016
and it was only at this time that they were sent off for
transcription, after which it was discovered that only part of the
recordings had been transcribed, and there was still a part which was
outstanding. But the explanation given by the Office Manager
is at
odds with the transcriber’s certificate (which appears on the
transcript) and which is dated 14 August 2015 ie
almost a year
earlier, and we note that the clerk of the court also appended a date
stamp to the first page of the transcription
on 18 August 2015
already.
[54]
In the circumstances it appears as if the record was already
transcribed and in the possession of the administrative component
of
the court by 18 August 2015 and the subsequent explanations
about recordings not being found do not make sense. Even were
these
explanations to be coherent, it is unacceptable for the Office
Manager to have simply waited for the transcriptions to be
effected
over a period of 3 months, and no attempt was made to explain why it
took so long for a relatively short record to be
transcribed.
Although it was finally presented to the presiding officer for
checking on 24 October 2016, the record which was sent
to this Court
is still incomplete as the plea proceedings were never transcribed.
[55]
The only evidence of any attempt on the part of the presiding officer
to attend to this is an e-mail which was sent by her
to the Office
Manager on 29 August 2016 enquiring as to the outstanding
transcription in respect of the plea proceedings.
No
explanation was tendered by the presiding officer (or the Office or
Court Manager) as to why it took a further 4 months from
the date
when the record was provided to her for checking, for it to be
despatched to the Registrar.
[56]
In the circumstances, the entire manner in which the matter was
handled from the date of the imposition of sentence in January
2015
is reprehensible and there appears to have been a fundamental
dereliction of duty on the part of all concerned, which in our
view
constitutes a gross irregularity which rendered the accused’s
constitutional right of review nugatory and which has
resulted in a
material failure of justice. The prejudice which the accused suffered
manifested itself in two forms. Firstly,
the accused received a
sentence of 24 months’ imprisonment which was suspended on
condition
inter alia
that he not be found guilty of having
committed an offence involving dishonesty, during the period of
suspension. The customary
proviso that the sentence would only
liable to be put into operation in the event that the accused
subsequently received an unsuspended
sentence of imprisonment was not
tacked on and, as it reads, even a relatively trivial offence
involving dishonesty for which the
accused was given a petty fine
would have triggered the putting into operation of the sentence.
From the record before us
it is not apparent if this has happened.
But this alone illustrates why it is so important that these types of
reviews be dealt
with promptly, even insofar as it relates to the
amendment of a possibly inappropriately wide sentence. But, in the
second place,
and more importantly in our view, the sentence was
founded upon a conviction which was unsound.
[57]
The appellant was convicted on the evidence of a single witness who
testified that in the early morning hours of 3 August
2014 she
was awoken by a scratching sound and found a man standing next to her
bed. He was wearing a balaclava which covered his
head and his ears,
and she claimed to have recognised him as the accused, from his
dreadlocks. In response to questions from the
court she said that
when she had awoken “
ek
het geskrik ek het gedog dit is ‘n spook … Ja en toe
hardloop die persoon uit? Ja, toe kyk ek sy bene en ‘n
spook het mos nie bene nie maar die spook het bene en toe vlieg ek
op”
.
[104]
[58]
It is thus apparent that the identification which the complainant
made occurred in a matter of split seconds after she
had been
aroused from her sleep and whilst she was in a state of fright. From
the evidence it also appears that at the time the
only light in her
room was indirect and emanated from the television and the bathroom.
The complainant said she jumped out of bed
and chased the accused out
of her house and into the street, but she was unable to catch up with
him. A few days later she
was handed her phone back at the
police station. The police told her they had been contacted by
one Gummies who had reported
that someone had tried to sell the phone
to him.
[59]
In cross-examination the complainant maintained that she had
recognised the accused at the time not only by his hair, but also
by
the dark green top and cap which he wore, but when she was asked by
the accused (who conducted his own defence) how she was
able to
recognise him as he was not the only Rasta in the area who wore such
a cap, she said she had recognised him by his ‘height’.
However, she also said the police had informed her that the accused’s
brother Boytjie was responsible for the break-in and
the police had
asked her that night whether she was certain it was the accused who
had broken into her home, or whether it could
have been Boytjie, and
she confirmed that they looked the same (“
hulle lyk
eenders”)
except that Boytjie was taller than the
accused.
[60]
In his evidence the accused denied that he had broken into the
complainant’s house. He said that he had been arrested
by
the police whilst he was at home with his brother, who also had a
Rasta hairstyle.
[61]
The accused’s brother in turn testified that on the night in
question he saw one Jonty outside the home of the complainant.
He was wearing a black cap with a fur lining which which covered his
ears and, according to him, it was Jonty who broke into the
complainant’s house, and he was present the following day when
Jonty sold the complainant’s cell phone to Gummies.
[62]
The accused also requested that a person who was with him in the
cells be called to give evidence on his behalf. However,
when
the court established that he was not favourably disposed towards the
accused and did not wish to testify for him, the court
called him as
a witness. He testified that the accused’s brother had
given the phone to him and he had in turn handed
it to Gummies.
So, in essence, this witness’ version appears to support what
the complainant was told by the police, and
the evidence as a whole
points to the possibility that it was either Jonty or the accused’s
brother who broke into the complainant’s
house on the night in
question, instead of the accused.
[63]
Although there were a number of contradictions between the testimony
of the accused and the witnesses who testified on his
behalf
(particularly in relation to where he was arrested and who sold the
phone to Gummies) in our view the evidence established
a reasonable
doubt as to whether or not it was the accused who broke into the
complainant’s home and stole her phone that
night. This
was a classic situation where it could not be said that the accused’s
version was not reasonably possibly
true, even if the court did not
believe it, and the accused should accordingly have been given the
benefit of the doubt. In the
circumstances had the matter been sent
on review timeously as it should have been, the conviction would in
all probability have
been set aside and the accused would never have
been at risk of having the suspended sentence put into operation.
In the
result, the accused was severely prejudiced by the delay and
this Court cannot certify that the proceedings
a
quo
were in accordance with
justice, and in our view the proceedings should be set aside on the
grounds of a failure of justice
[105]
and it will not suffice merely to quash the conviction.
[106]
[64]
In
S v Jacobs
[107]
(the other matter from Caledon) the record was received by the
Registrar some 3 years after a sentence of 2 years’
imprisonment
was imposed in terms of s 276(1)(i) of the CPA.
Once again, by the time the record was received the accused’s
constitutional right of review had been rendered nugatory as he had
long served the sentence which was imposed upon him. Although
the transcript of proceedings is barely intelligible, it appears as
if the accused was properly convicted of house-breaking with
intent
to steal and theft of an electric grasscutter pursuant to a plea of
guilty.
[65]
In her explanation in this matter the Head of Office (who similarly
was also the presiding officer) once again laid the blame
for the
delay at the doors of the clerk of the court and the DCRS clerk.
She said that upon its finalisation on 7 March
2014 the matter
was forwarded to the clerk of the court in order for the
transcriptions to be made, but neither the clerk of the
court nor the
DCRS clerk attended to their duties. Although the Head of
Office states that the DCRS clerk was issued with
a written warning
for “
non-compliance”
(sic) there is no indication
when this occurred, nor is there any indication that she followed up
on the matter at all, after she
had handed it over to the clerk of
the court, and she simply records that “
no suitable
explanation”
was forthcoming from the clerk of the court in
regard to the delay.
[66]
That there is a systemic problem at the Caledon court is apparent
from the concluding paragraph of the explanation which was
given by
the Head of Office, where she states that an investigation into the
late submission of reviews at her office has been
launched, but as at
the date of her covering letter she had not yet been informed of the
outcome thereof.
[67]
In his affidavit the Office Manager simply noted that the DCRS clerk
was served with a written warning by the Court Manager
at some stage
whereafter instructions were given for the transcription to be made,
but no date was provided for either of these
events. Although it is
apparent from the transcriber’s certificate that the
transcription had been completed by 15 September
2016, according
to the Office Manager on 30 September 2016 the matter was
“
referred back with a query”
by the presiding
officer because the original documentation “
was bound in
different sequence”
(sic) and a further transcription (?)
was effected on 13 October 2016, an electronic copy of which was
received on 17
October 2016. Once again
however, no attempt was made to explain why, although the record was
finally complete by 17 October
2016, it took some 5 months
before it was dispatched to the High Court.
[68] In the circumstances given the
length of the delay concerned and the inadequate explanations
tendered by the presiding officer
and the court’s
administrative component, in our view
prima facie
there has
similarly been a gross failure of justice in these proceedings. We
accordingly call upon the presiding officer and the
Director of
Public Prosecutions to show cause, if any, within 30 days from date
of this judgment, why we should not certify that
the proceedings in
this matter are not in accordance with justice and to favour us with
any submissions they may wish to make in
regard to an appropriate
remedy which should be imposed, with particular reference to whether
an order should be made that there
has been a failure of justice and
that the proceedings should be set aside in terms of s 304(c)(iii)
of the CPA.
[69]
In the Montagu matter of
S v Damon
the presiding magistrate
has indicated that part of the transcribed record was received by the
clerk of the court from the transcribers
on 1 December 2015, some 2
weeks after the sentence of 2 years’ imprisonment was imposed.
We note however that the transcriber’s
certificate is in fact
dated 25 November 2015. Be that as it may, from the explanation given
in this matter it is apparent that
there are also no proper control
measures in place at the Montagu magistrates’ court, because
the clerk of the court took
no steps to have the matter sent for
review and by his own admission the magistrate was blissfully unaware
of this until he came
across the case records by accident on 15 June
2017, lying amongst other documents held by the clerk of the court,
whilst trying
“
to get hold of
” another “
lost
case record
”(sic).
[70]
The magistrate blames the administrative component for their “
lack
of support and diligence
” and the clerk of the court, in
particular, for failing to present the case record to him “
for
certifying
” (sic) and points out that the record is still
incomplete, even though he forwarded it for review, as the judgment
and sentencing
proceedings were never transcribed and in his view “
it
is most unlikely
” that it will be possible to reconstruct
these proceedings. Consequently, and notwithstanding that the accused
has already
long served the sentence of imprisonment which was
imposed on him, the magistrate requests this Court to set aside the
conviction
and the sentence and order that a re-trial take place.
[71]
Although from a review of the evidence it appears that the accused in
this matter could have been properly convicted of the
theft of a
music system, in the absence of the magistrate’s judgment or
any reasons for it we are unable to form a view in
this regard.
Similarly, in the absence of the judgment pertaining to the sentence
which was imposed we are unable to form a view
as to whether or not
the sentence was fair and appropriate, or whether it was excessive to
the point which would ordinarily invite
an adjustment. We note from
the SAP 69s that the accused was on parole at the time when he
committed the offence with which he
had been charged, however neither
the particulars of the offence of which he had been convicted nor the
sentence which he was serving
at the time when he was released on
parole appear on the record, which reflects only that he had an
earlier conviction in terms
of which he was sentenced to a paltry
fine of R20 or 4 days’ imprisonment for possession of drugs, on
8 February 2014.
[72] In the circumstances, given the
length of the delay concerned and the inadequate explanations
tendered by the presiding officer
and the court’s
administrative component, as well as the deficiencies in the record
and the inability to reconstruct it,
in our view
prima facie
there
has similarly been a gross failure of justice in these proceedings.
We accordingly call upon the presiding officer and the
Director of
Public Prosecutions to show cause, if any, within 30 days from date
of this judgment, why we should not certify that
the proceedings in
this matter are also not in accordance with justice and to favour us
with any submissions they may wish to make
in regard to an
appropriate remedy which should be imposed, with particular reference
to whether an order should be made that there
has been a failure of
justice and that the proceedings should be set aside in terms of
s 304(c)(iii) of the CPA. We are
prima facie
of the view
that, whatever the outcome of the further proceedings in this regard,
given that the accused has already served his
sentence it would not
be fair or just to order a re-trial even if it were competent for us
to do so.
[73]
The matters from the Vredendal magistrates’ court purport to
have been sent some 2 months after the date when the sentence
was
imposed, and for some unexplained reason also appear only to have
been received by the Registrar a further 2 months later.
The
magistrate of Vredendal has only tendered an explanation in regard to
the late submission of one of these matters
v Jas.
[108]
From a perusal of the record therein it appears that the accused was
properly convicted on a charge of assault with intent
to commit
grievous bodily harm pursuant to a plea of guilty, and on 18 January
2017 he was sentenced to 18 months’
imprisonment which was
suspended for a period of 5 years on standard conditions.
[74]
In similar fashion as the magistrate of Caledon, the magistrate of
Vredendal records that neither the Office nor the Court
Managers are
able to furnish reasons for the delay in the transmission of the
record and the magistrate complains that the matter
was not placed
before him in order that he could check whether the transcripts were
“
in order”,
and although he requested the clerk of
the court to place the case record before him (the date when this is
alleged to have occurred
is not provided) it was only when he went to
search for the matter himself that he found it had been filed and the
record had not
yet been typed up. He complains further that
even after the transcript had been prepared the record was not placed
before
him and he again found it lying on the clerk’s table.
Consequently, the magistrate was of the view that the relevant
court
personnel had failed in their duty to see to it that review matters
were dealt with expeditiously, and he said that this
was not the only
matter from that court where the relevant time-frames had not been
adhered to.
[75]
In her explanation the clerk of the court states that although each
court has its own DCRS clerk who is responsible for keeping
that
court’s records and review registers the only time she sees the
review matters is when she is asked to assist in typing
up their
records or to process them, because the DCRS clerk cannot ‘get
to it’
.
She reports that during the period concerned
they experienced staff shortages as a result of which she was
required not only to
deal with her own duties as clerk of the court,
but also to assist with other administrative functions. She says that
as there
is no typist at the Vredendal court the typing work has to
be done by her and other members of staff, in addition to the other
work they have to do, often outside of ordinary office hours.
She points out that at the time they received a number of reviews
in
the same week from both the Lutzville as well as from the Vredendal
court and they had difficulty in typing up their records,
as not all
of the staff have laptops which allow them to continue typing after
hours. She also complains that the DCRS clerk
never informed
her about this particular review matter and did not ask her for
assistance in order to process it. Of some
concern to us is her
further remark that whilst she is ultimately responsible to see to it
that things are done timeously “
things have been done for
years”
in a certain way and “
people
(are)
not
willing to accept new ideas and there are problems which are being
experienced”
(sic).
[76]
It is therefore apparent from the explanation provided by the
magistrate and clerk of this court too that administrative
deficiencies
and lack of resources are largely to blame for the
difficulties in the timeous preparation and transmission of automatic
review
matters from Vredendal, and there is clearly an endemic
problem in a number of magistrates’ courts in outlying
districts
in the Western Cape which needs the urgent attention of the
Department of Justice with the necessary assistance and input of the
the judicial administrative/’cluster’ heads and Chief
Magistrates.
[77]
However, unlike in the other matters we have referred to the
explanations provided by the magistrate and the administrative
component of Vredendal in this matter are cogent and forthright and
properly cover the entire period of delay, which is not egregious,
and given these circumstances and the nature of the offences
concerned and sentences imposed, we are thus minded to accept their
explanations and to condone the delay. For the sake of completeness,
in the other Vredendal review (
S
v Klaasen
),
[109]
where no explanation was provided we can find no fault with the
conviction and sentence, and have assumed that the explanation
for
the failure to submit the record in this matter timeously is probably
the same as that given in the previous matter, and for
the same
reasons we are also prepared to condone the delay in relation to this
matter.
[78]
Finally, we turn to deal with the 2 reviews from the Ceres
magistrates’ court. In neither matter has the presiding
officer furnished any explanation for the delay of just short of 2
months between the date of sentence and the date of despatch
of the
matters for review. In
S
v Xhantibe,
[110]
the accused was properly convicted on a charge of theft of a number
of industrial belts, following a plea of guilty. He had
three
previous convictions for theft as well as one for house-breaking and
theft and was sentenced to 6 months’ imprisonment.
[79]
In the other matter,
S v
Swanepoel,
[111]
the accused was properly convicted of common assault pursuant to a
plea of guilty and was sentenced to 6 months’ imprisonment
suspended for 5 years on standard conditions. We can find no
fault with the conviction and sentence in either of the Ceres
matters
and given the relatively minor delay (comparative to the other delays
in the other matters we have referred to), and the
overall
circumstances, including the nature of the offences and the
punishments imposed we are not of the view that there has been
a
failure of justice, and we are disposed to certifying that the
proceedings in these matters are in accordance with justice.
Conclusion
[80]
In the result, we make the following Orders:
80.1 The Heads of Office of the
Caledon and Montagu magistrates’ courts are directed to furnish
this Court and the Regional
Head of the Department of Justice within
30 (court) days, with a retrospective record of all automatic review
matters (in terms
of ss 302 and 303 of the CPA) heard within a period
of 3 years of the date of this judgment, which record should be in
the format
and should contain the information as per the template
datasheet attached to the resolution of the Chief Magistrates’
Forum
of 15 February 2010 (as per Circular 14/2010, circulated to all
magistrates on 8 March 2010).
80.2 The Regional Head of the
Department of Justice (with the assistance of the relevant judicial
administrative/cluster heads
and Chief Magistrates) is directed to
conduct an audit in respect of administrative and systemic
deficiencies and lack of resources
in regard to the transcribing,
processing and transmission to this Court of the records in automatic
review matters (in terms of
ss 302 and 303 of the CPA) at the
Caledon, Montagu, Vredendal and Ceres magistrates’ courts, and
is to report back to this
Court and to the Magistrates’
Commission in 3 months in respect of the outcome of such audit and
(with reference to the contents
of paragraphs [51]-[56] and [64]-[76]
above) the remedial and other measures which have been instituted
pursuant thereto in order
to address such deficiencies and lack of
resources.
80.3 It is declared that the
proceedings in the matter of
S v Swart
(Caledon case no.
B927/14) are not in accordance with justice and the conviction is
quashed and the proceedings are set aside in
terms of ss 304(c)(i)
and (iii) of the CPA.
80.4 T
he
presiding magistrates in the matters of
S
v Jacobs
(Caledon C1191/13) and
S
v Damon
(Montagu 526/2014) and the
Director of Public Prosecutions are called upon to show cause, if
any, in writing within 30 (court)
days from date of this judgment,
why this Court should not declare that the proceedings in the
aforesaid matters are not in accordance
with justice, and in this
regard shall furnish the Court with any submissions they may wish to
make in regard to an appropriate
remedy which should be imposed, with
particular reference to whether an order should be made that there
has been a failure of justice
and that the proceedings should be set
aside in terms of s 304(c)(iii) of the CPA, and/or any such
other remedy as may be
in the interests of justice.
80.5 I
t
is declared that the proceedings in the matters of
S v Jas
(Vredendal 14/17),
S v Klaasen
(Vredendal 682/16),
S v
Xhantibe
(Ceres 310/17) and
S v Swanepoel
(Ceres 1907/16)
are in accordance with justice.
80.6 A copy
of this judgment shall be sent
to the Director-General of the
Department of Justice, the Regional Heads of the Department of
Justice and the Office of the Chief
Justice for the Western Cape, the
Director of Public Prosecutions for the Western Cape, the
Magistrates’ Commission, the
Regional Court President (Western
Cape) and the Chief Magistrates and judicial administrative/’cluster’
heads for the
Caledon, Montagu, Vredendal and Ceres magistrates’
courts and the head of each of such courts.
_________
HENNEY
J
________
SHER
AJ
[1]
Caledon case no. C 1191/13.
[2]
Case no. B 927/14.
[3]
Case no. 526/14.
[4]
S v Jas
Vredendal 14/17.
[5]
S v Klaasen
Vredendal
682/16.
[6]
S v Swanepoel
Ceres
1907/16.
[7]
S v Xhantibe
Ceres 310/17.
[8]
T
he
definition of “
magistrate”
in s 1 of Act 51 of 1977 only refers to a so-called district court
magistrate and not an additional or regional magistrate.
[9]
Act 75 of 2008.
[10]
Unless an appeal has been noted (s 85(2)).
[11]
Whether legally represented or not (s 85(2)(c)).
[12]
This will include a suspended sentence of imprisonment
vide
S v LM
2013 (1) SACR 188
(WCC) at paras [50]-[51].
[13]
S 85(1)(b).
[14]
S 85(1)(d).
[15]
S 302(3)(a) of the CPA.
[16]
S 302(1)(b)(i) – (iii) of the CPA.
[17]
S v Mokubung; S v Lesibo
1983 (2) SA 710
(O) 714H.
[18]
As set out in s 304.
[19]
S 304(c)(ii).
[20]
S 303(c)(i).
[21]
S 304(c)(iii).
[22]
S 304(c)(vi).
[23]
1963(1) SA 60 (O) at 61A-B.
[24]
Id
61F.
[25]
Id
61G.
[26]
S v Manyonyo
1997 (1) SACR 298 (E).
[27]
Id
at
300f.
[28]
S v
Joors
2004 (1) SACR 494 (C).
[29]
Per Binns-Ward AJ
et
Thring
J.
[30]
At 497d.
[31]
In terms of s 35(3)(o) of the Constitution.
[32]
In terms of s 35(2)(d) of the Constitution.
[33]
1961 (4) SA 752 (A).
[34]
At
758F-G;
759C-D.
[35]
1977 (2) SA 829 (A).
[36]
See
also
S v Lubbe
1981
(2) SA 854
(C) 860F-G.
[37]
McCarthy
v Additional Magistrate, Johannesburg
2000
(2) SACR 524 (SCA);
Wild
and Ano v Hoffert & Ors
1998
(3) SA 695 (CC).
[38]
Sanderson v
Attorney-General Eastern Cape
[1997] ZACC 18
;
1998
(1) SACR 227
(CC).
[39]
Note 23.
[40]
Note 32,
p
ara [26].
[41]
Id
p
ara [31].
[42]
Id.
[43]
At para [33].
[44]
Para [34].
[45]
Id
.
[46]
Para [35].
[47]
Para [36].
[48]
Bothma v Els
2010
(1) SACR 184 (CC).
[49]
Para [77].
[50]
Id
.
[51]
Zanner v Director of Public
Prosecutions Johannesburg
2006
(2) SACR 45 (SCA).
[52]
At para [21].
[53]
Id.
[54]
S v Pennington
and Ors
1997
(4) SA 1076 (CC).
[55]
R v Potvin
(1993) 16 CRR (2d) 260.
[56]
S 11(b) of the Charter of Human Rights.
[57]
[1998] 3 SCR 45
; [1998] 56 CRR (2d) 189.
[58]
S 35(3)(d).
[59]
In terms of s 35(3).
[60]
S 35(3)(o).
[61]
Para [43].
[62]
Para [41].
[63]
2008 (1) SACR 553 (C).
[64]
At
para
[30].
[65]
Note 23 at 61G.
[66]
1995 (2) SACR 452 (T).
[67]
Id
at
453h.
[68]
Note 26
.
[69]
Reaffirmed in
S v Mekula
2012 (2) SACR 521
(ECG) at para [13].
[70]
In terms of s 304(1).
[71]
Id
at
300g-h.
[72]
P
er
Traverso DJP
et
Conradie
J.
[73]
1998 (1) SACR 101 (C).
[74]
At 104c.
[75]
2004 (2) SACR 577 (T).
[76]
At para [12].
[77]
Id
.
[78]
Note 28 at 498i-499a.
[79]
Id.
[80]
With
reference to the commentary by
Chaskalson
et al
in
Constitutional Law of
South Africa.
[81]
Id
at
499f-500a.
[82]
2013 (2)
SACR 146 (KZP).
[83]
Para [5] at 149b.
[84]
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at para
[16]
.
[85]
Bothma
n
42 para [77].
[86]
[1997] ZACC 2
;
1997 (3) SA 527
(CC) at para
[220]
.
[87]
in terms of s 304(c)(iii).
[88]
In terms of s 304(c)(vi).
[89]
In
Wild
n 31 at paras [11]-[12] the Con Court held that where there is an
infringement of the right to a ‘speedy trial’ the
court
has a duty to devise and implement an appropriate remedy or
combination of remedies, depending on the circumstances.
[90]
In
Circular
14/2010 which was circulated to all magistrates on 8 March
2010.
[91]
In terms of cl 4 of the Norms and Standards for the Performance of
Judicial Functions (the “
Norms
and Standards
”),
issued by the Chief Justice by way of GN 147 on 28 February 2014.
[92]
In terms of
cl 5.2.6 of the Norms
and Standards, which provides that save in exceptional circumstances
every effort shall be made to hand
down a judgment that has been
reserved no later than 3 months after the date of the last hearing.
[93]
2012 (2) SACR 367 (WCC).
[94]
Id
para
[22].
[95]
Id
para [20].
[96]
Note 91
.
[97]
In terms of
S 8(4)(c)
of the
Superior Courts Act 10 of 2013
and cl 4 of the Norms and Standards.
[98]
Cl 4 (v)(a) of the Norms and Standards.
[99]
Cl 4 (v)(b).
[100]
Cl 5.2.4 (ii).
[101]
Which are amongst the principal objectives set out in the Norms and
Standards (
vide
cl 2).
[102]
A
s
per n 90.
[103]
Case No: B927/14.
[104]
Loosely translated into English as follows: “
I
got a fright and I thought it was a ghost…Yes and then the
person ran out? Yes, and then I saw his legs and a ghost does
not
have legs, but this ghost had legs and then I jumped up
”.
[105]
I
n
terms of the provisions of
s 304(c)(iii).
[106]
In terms of
s 304(c)(i).
[107]
Case no: C1191/13.
[108]
C
ase
no: 14/17.
[109]
Case No: 682/16.
[110]
Case No: 310/2017
[111]
Case No: 1907/2016.