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[2017] ZAWCHC 140
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Cooper v District Magistrate, Cape Town (WCC) (1699/2017) [2017] ZAWCHC 140; 2018 (1) SACR 369 (WCC) (24 November 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
REPORTABLE
Case
Numbers: 16996/2017
In
the matter between:
NEVILLE
COOPER
Applicant
and
MAGISTRATE
MHLANGA
Respondent
JUDGMENT
DELIVERED 24 NOVEMBER 2017
Andrews
AJ
Introduction
[1]
This is a
review application for the setting aside of the conviction and
sentence of the Applicant under case number 24/1270/2016
in the Cape
Town District Court., in terms whereof, Respondent convicted
Appellant of contravening the provisions of Section 55
(1) of the
Criminal Procedure Act
[1]
, as
amended and subsequently sentenced him to pay a fine of R3 000.00
(three thousand rand) or three (3) months imprisonment.
The
matter was argued on 23 November 2017. The Respondent is not opposing
the application and has filed a notice to abide.
Factual
Background
[2]
The salient features of the factual matrix as set out by Applicant in
his supporting affidavit and gleaned from the court record,
can in
brief be summarised as follows. The Applicant was arraigned on a
charge of contravening the provisions of Section 305 (1)(q),
read
with section 1 and section 305 (6) of the Children’s Act
[2]
.
His first appearance was indicated on the summons as 28 July 2016. On
13 December 2016, the matter was postponed to 1 March 2017.
[3]
Applicant
avers that he had been experiencing chest pains since 28 February
2017 which necessitated that he attend at Tableview
Medicross early
on the morning of 1 March 2017 to consult with a doctor. Applicant
further avers that he informed his attorney,
Mr Arnold, that he would
not be able to attend court because he was unwell and was advised to
obtain a medical certificate from
the doctor, which he duly did.
[4]
The
Applicant further avers that he contacted his legal representative
later that morning to enquire about his matter and was informed
by Mr
Arnold that the trial had been postponed to 10 March 2017. According
to Applicant, he was unaware that a warrant of arrest
had been
authorised in his absence. On 10 March 2017, Applicant attended at
court together with his legal representative.
According
to Applicant, the Respondent, who ignored the presence of Applicant’s
legal representative, immediately called
him into the witness box and
conducted a warrant enquiry as to his absence form court on 1 March
2017. Applicant was subsequently
found guilty and sentenced for
failure to attend court, which fine was immediately paid by
Applicant.
Grounds
for Review
[5]
Applicant
contends that the proceedings were irregular and that his
constitutional rights to a fair trial as enshrined in section
35 (3)
of the Constitution of the Republic of South Africa
[3]
were infringed. Furthermore it is contended that the
jurisdiction of section 55 (2) of the Criminal Procedure Act was
exceeded.
Applicant further avers that Respondent acted unreasonably
in rejecting his explanation
Legal
Principles
[6]
It is trite that an accused person’s rights are enshrined in
the Constitution and in this regard, section 35 (3) of Act
108 of
1996 states that ‘
Every
accused has a right to a fair trial, which includes the right - (a)
to be informed of the charge with sufficient detail to
answer it; (b)
to have adequate time and facilities to prepare a defence
…
(h)
to be presumed innocent, to remain silent, and not to testify during
the proceedings; (i) to adduce and challenge evidence…’
In addition, everyone, including an accused person has the inherent
right to dignity.
[4]
[7]
Section 170
of Act 51 of 1977, is applicable in circumstances when an accused
fails to appear in court after a matter has been adjourned.
The
provisions of section 170 is as follows:
‘
170 Failure of accused to
appear after adjournment or to remain in attendance
(1)
An accused at criminal
proceedings who is not in custody and who has not been released on
bail, and who fails to appear at the place
and on the date and at the
time to which such proceedings may be adjourned or who fails to
remain in attendance at such proceedings
as so adjourned, shall be
guilty of an offence and liable to the punishment prescribed under
subsection (2).
(2)
The court may, if
satisfied that an accused referred to in subsection (1) has failed to
appear at the place and on the date and
at the time to which the
proceedings in question were adjourned or has failed to remain in
attendance at such proceedings as so
adjourned, issue a warrant for
his arrest and, when he is brought before the court, in a summary
manner enquire into his failure
so to appear or so to remain in
attendance and, unless the accused satisfies the court that his
failure was not due to fault on
his part, convict him of the offence
referred to in subsection (1) and sentence him to a dine not
exceeding R300 or to imprisonment
for a period not exceeding three
months.’
[8]
This
section corresponds with section 55(3) and 72 (4) in cases where
persons have been summoned or warned to appear in court and
who
subsequently fail to do so. It is trite that the court has the same
powers in a section 170 (1) enquiry as conferred on it
through these
provisions save that in the section 170 (1) enquiry the provision is
wide and without qualification.
[5]
‘
Where
the court holds a summary enquiry in terms of sub-s (2) into a
failure to attend, considerations of justice and common sense
demand
that the court must inform the accused that there is an onus on him
to tender a reasonable excuse – in the unlikely
event, that is,
that this reverse onus passes constitutional muster
[6]
…The
accused must also be advised that he may call witnesses and give
evidence himself
[7]
’
[8]
[9]
At the
summary enquiry, it is trite that the accused bears the onus of
explaining his or her failure to attend court, which is to
be
conveyed to him through the Presiding Officer. The matter of
S
v Chaplin
[9]
is provides guidelines in respect of the enquiry. In this regard,
Scott J stated as follows:
‘
What this section
contemplates is that the mere failure to appear will justify a
conviction in the absence of an explanation. In
other words, what is
presumed is that the failure to appear was wilful in the sense that
it was due to the fault of the accused
person. It follows that an
accused person must be informed of the onus upon him, otherwise he
might be justified in tendering no
explanation, in the belief that
his mere failure to appear did not in itself indicate that he was at
fault and that the State had
failed to establish fault on his part.
…Wilfulness will be presumed in the absence of an explanation
by the respondent.
In such circumstances, that is to say where
wilfulness is to be presumed, justice and common sense require that
that the presiding
officer should inform the respondent that in the
absence of an explanation he will be presumed to have acted
wilfully.’
[10]
[10]
It is incumbent on the presiding officer to actively attempt to
determine the truth and maintain a balance in fairness to the
accused.
[11]
[11]
As previously stated, there is conformity between this enquiry and
section 72 (4). In light hereof, the matter of
S
v Singo
[12]
has relevance. In this regard, Ngcobo J stated that, in answer to the
question ‘
[d]oes
the phrase “unless such person satisfies the court that his
failure was not due to fault on his part” limit the
right to be
presumed innocent and the right to remain silent?’
stated that:
‘
[25] This court has on
several occasions considered provisions in statutes that impose a
legal burden, which has now become known
as a reverse onus. A legal
burden requires an accused to disprove on a balance of probabilities
an essential element of an offence
and not merely to raise reasonable
doubt. It is by now axiomatic that a provision in a statute that
impose a legal burden upon
the accused limits the right to be
presumed innocent and to remain silent.
[26] A provision which imposes a
legal burden on the accused constitutes a radical departure from our
law, which requires the State
to establish the guilt of the accused
and not the accused to establish his or her innocence. That
fundamental principle of our
law is now firmly entrenched in section
35(3)(h) of the Constitution which provides that an accused person
has the right to be
presumed innocent. What makes the provision which
imposes a legal burden constitutionally objectionable is that it
permits an accused
to be convicted in spite of the existence of a
reasonable doubt….’
Discussion
[12]
From the
record of proceedings it is clear that the Applicant’s legal
representative attempted to explain the absence of the
Applicant. The
legal representative requested that the court hold over the warrant
of arrest based on the explanation tendered
for Applicant’s
absence from court. The court found, ‘
no
sufficient reasons justifying hold over w/a (sic)’
[13]
. What follows on the record is ‘
w/a
held over’.
The word ‘
not’
appears to have been inserted between the words ‘
w/a
and held’
and then deleted again. As it stands, the record reflects that the
warrant of arrest was held over. When the amendment was effected
has
not been indicated as the amendment was neither initialled nor dated.
If the warrant of arrest was held over, then it follow
that there
would have been no need for an enquiry to be held.
[13]
Based on
the further conduct of the matter, it is evident that the warrant of
arrest had to have been authorised to justify the
holding of an
enquiry. I pause here to mention that the warrant of arrest was
authorised in terms of section 55 of Act 51 of 1977.
This is
evidently incorrect as the Applicant was previously warned to be at
court on 1 March 2017. Section 55 only finds application
where a
person appears in court on a summons. Consequently, a person after
receiving a summons will thereafter appear in court
in accordance
with a warning under section 72.
[14]
It therefore flows that the warrant of arrest should have been
authorised in terms of Section 170 of Act 51 of 1977.
[14]
The
Appellant avers that his legal representative failed to inform him
that his failure to attend court resulted in a warrant of
arrest
having been authorised. The Applicant states in his affidavit that he
presented at court on 10 March 2017. When his case
was called, his
legal representative placed it on record that he was present and was
absent from court on the previously date because
he had been ill. The
attorney proceeded to hand up the medical certificate to Respondent
who summarily called Applicant to the
witness box where he was
interrogated about his absence, the chest pains he had suffered and
the manner in which he had travelled
to hospital
.
According to the
Applicant, Respondent appeared to take issue with the certificate of
the doctor. Respondent also questioned Applicant
about the medical
tests which were run. As Applicant was not in a position to expound
on the medical intricacies, he proposed to
Respondent that the doctor
be called to give evidence in this regard and according Applicant,
Respondent ignored the suggestion.
According to the Applicant,
Respondent not being satisfied with his explanation remarked that if
Applicant was well enough to drive
to Medicross on the morning of 1
March 2017, then he could have come to court whereafter Applicant was
found guilty and sentenced.
[15]
[15]
The record
of proceedings provides a clear exposition the enquiry. What is
evident is that Applicant conceded that there was no
reason that he
could not attend the hospital during the evening. Appellant also
conceded that he could have phoned his attorney
earlier. The record
does not reflect the reasons given by Respondent for the verdict
which followed.
[16]
In this
regard, Applicant contends that this is indicative of the fact that
the Respondent did not apply his mind.
[16]
According
to Applicant, he was not informed of the charge, the nature of the
proceedings nor was he informed of his rights. In this
regard, it is
alleged that Respondent did not make it clear to Applicant that he
was being charged with a criminal offence, and
the commensurate
penalty provisions upon conviction.
Respondent
failed to afford Applicant a fair opportunity to prepare for the
hearing, present a defence and or call witnesses and
failed to
explain and apply the correct onus at the enquiry.
[17]
The
Applicant refutes the accuracy of the information reflected
pro
forma
form
indicated that his rights to appeal and to legal representations were
explained and that he elected to conduct his own defence.
Applicant
contends that this was never canvassed with him. In fact, it is
argued that it made no sense for him to have elected
to conduct his
own enquiry as his legal representative who was being paid to
represent him at court was present in court. In this
regard,
Applicant further contends that it would have been unwise of him to
have done so.
[17]
Conclusion
[18]
Based on
the exposition of events it is evident that a number of procedural
irregularities were highlighted. In addition, a myriad
of Applicant’s
constitutionally entrenched rights were infringed. Applicant’s
version in this regard is undisputed
by Respondent. It is incumbent
on the court to advise the accused of the burden of proof and ask the
accused whether he wishes
to testify and or call witnesses. Failure
to do so constitutes a material error in law.
[19]
It is common cause that Applicant presented the court with a medical
certificate. If Respondent had any reservations as to
the veracity or
authenticity of the medical certificate presented in court, the
author thereof could have been called as a witness
to clarify any
aspects for the benefit of the court to enable the court formulate an
appropriate finding which would ultimately
be in the interest of
justice and in accordance with justice. An accused has the right to
be treated with dignity and respect and
the robust manner in which
the inquiry was conducted suggests that Respondent was not alive to
these basic and fundamental human
rights firmly entrenched in South
Africa’s constitutional democracy.
[20]
I am
furthermore of the view that the manner in which the inquiry into the
Appellant’s failure to attend court was conducted
amounted to a
substantial injustice as it infringed on his constitutionally
entrenched rights to a fair trial. His right to access
to justice was
curtailed when his legal representative was ignored and presence not
acknowledged during the enquiry. It is of concern
that Respondent,
who his called upon in the exercise of his judicial function to
administer the law without fear, favour or prejudice;
had a complete
disregard to the rights of the accused. In addition, the legal
principles pertaining to the enquiry were misapplied
to the prejudice
of the Applicant. In this regard, I am in agreement with the
Applicant that the summary hearing was irregular
and that Respondent
materially misdirected himself by applying the reverse onus. I
furthermore find that Respondent incorrectly
found the Applicant
guilty of contravening the provisions of section 55 of Act 51 of 1977
instead of section 170(1) of Act 51 of
1977. In the
circumstances, and having regard to all these glaring irregularities,
I am of the view that the proceedings
conducted on 10 March 2017 were
not in accordance with justice and falls to be set aside.
[21]
Turning to
the sentencing component of the enquiry,
Section
1 of the
Adjustment
of Fines Act 101 of 1991
[18]
has relevance and can be applied to Section 170 (2). In this regard,
the maximum fine imposed can be adjusted upwards.
I
am of the view, in applying the Adjustment of Fines Act that the
amount payable in respect of the fine imposed is not an incompetent
sentence. However, seen in the totality of the evidence, a finding in
this regard will be moot as the proceedings were already
found to be
irregular.
[22]
In the
result I would make the following order:
(a)
The
conviction and sentence imposed of the Applicant under case number
24/1270/2016 in the Cape Town District Court on 10 March
is set
aside, as per the draft order marked “X” annexed hereto.
_________________________
ANDREWS,
AJ
I agree and it is so ordered.
_________________________
BAARTMAN,
J
Appearances:
Counsel for Applicant: Adv M Ipser
Instructed
by: Arnold & Associates
For Respondent: State Advocate –
LM Gava
[1]
51 of 1977.
[2]
38 of 2005.
[3]
Act 108 of 1996.
[4]
Section 10 of At 108 of 1996 ‘
Everyone has inherent dignity
and the right to have their dignity respected and protected’.
[5]
Hiemstra’s Criminal Procedure (LexisNexis) 22-67.
[6]
S v Ngubeni
[2008] ZAGPHC 178
;
[2009] 1 All SA 185
(T) at
[15]
.
[7]
S v Bkenlele
1983
(1) SA 515
(O) and
S v Du Plessis
1970 (2) SA 562
(E) at 564-5.
[8]
Du Toit et el ‘
Commentary
on the Criminal Procedure Act’
(Juta) 22-105.
[9]
1995 (2) SACR 490
(C) at 494d-j.
[10]
See also
S v Baloyi
[1999] ZACC 19
;
2000 (1) SACR 81
(CC) at
[29]
.
[11]
Ibid
at [31].
[12]
2002 (2) SACR 160 (CC).
[13]
Record of proceeding page 36.
[14]
Section 55 (2) of Act 51 of 1977. ‘…
Provided that
where a warrant is issued for the arrest of an accused who has
failed to appear in answer to the summons, the person
executing the
warrant – (a) may, where it appears to him that the accused
received the summons in question and that the
accused will appear in
court in accordance with a warning under section 72..’
[15]
Paragraphs 15 and 16 of Applicant’s founding affidavit.
[16]
See typed record of enquiry on page 43.
[17]
See page 2 of Applicant’s supplementary affidavit – page
45 of record.
[18]
‘
(1)
(a) If any law provides that any person on conviction of an offence
may be
sentenced
to pay a fine the maximum amount of which is not prescribed or, in
the
alternative,
to undergo a prescribed maximum period of imprisonment, and there is
no indication to the contrary, the amount of
the maximum fine which
may be imposed shall, subject to section 4, be an amount which in
relation to the said period of imprisonment
is in the same ratio as
the ratio between the amount of the fine which the Minister of
Justice may from time to time determine
in terms of section 92 (1)
(b) of the Magistrates' Courts Act, 1944 (Act 32 of 1944 ), and the
period of imprisonment as determined
in section 92 (1) (a) of the
said Act, where the court is not a court of a regional division....
(2)
If any law (irrespective of whether such law came into operation
prior to or after
the
commencement of this Act) provides that any person may upon
conviction of an offence be sentenced to pay a fine of a prescribed
maximum amount or a maximum amount which may be determined by a
Minister or, in the alternative, to undergo a prescribed maximum
period of imprisonment, or be sentenced to such a fine and such
imprisonment, the amount of the maximum fine which may be imposed
shall, notwithstanding the said penalty clause, but subject to
section 4, be an amount calculated in accordance with the ratio
referred to in subsection (1) (a): Provided that this provision
shall not apply if the maximum amount of the fine prescribed
in the
law or
determined
by the Minister exceeds the maximum amount calculated in accordance
with the ratio referred to in subsection (1)(a).’