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[2018] ZAWCHC 71
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S v Ramatar (171201/17) [2018] ZAWCHC 71; 2018 (2) SACR 414 (WCC) (30 May 2018)
Review case no: 171201/17
George Regional Court no.
R140/17
In the matter between:
THE
STATE
v
OMESHA RAMATAR
Coram
:
Sher
et
Henney JJ
JUDGMENT (ON REVIEW)
DELIVERED ON 30 MAY 2018
SHER, J:
1.
This
matter is before us on automatic review. The accused pleaded guilty
before the Regional Magistrate of George to a charge of
theft of
razor blades to the value of about R850. Although he was only 28
years old at the time he had a number of previous convictions,
including 4 for theft and 4 for robbery for which he had been
sentenced to varying terms of imprisonment. The offence in question
was committed only a few months after he had been released after
serving a sentence of 3 years for robbery.
2.
Because
of his long list of previous convictions the magistrate was of the
view that a further custodial sentence was unavoidable
and she
accordingly sentenced the accused to 24 months imprisonment. But as
he had a long-standing drug problem which required
treatment the
magistrate ordered that the sentence should be served in terms of the
provisions of s 276(1)(i) of the Criminal Procedure
Act
[1]
,
which would allow the Commissioner of Correctional Services to
discharge him once he was satisfied that he had complied with the
relevant treatment programs which he would be required to undergo
whilst in prison.
3.
On
the face of it the sentence which the magistrate imposed was fair and
appropriate and the proceedings appeared to be in order
at least
insofar as noting of the requisite elements of the offence was
concerned, during questioning in respect of the plea in
terms of s
112(1)(b) of the Act.
4.
However,
when the magistrate’s notes were compared with the transcript
of the recording of the plea proceedings it appeared
that a gross
irregularity might have occurred. In this regard it was apparent from
the transcript that at the inception of proceedings
and immediately
after the accused indicated that he wished to plead guilty the
magistrate asked the prosecutor whether the accused
had “
pleas
”
(sic) because, she said, if the accused was so eager to plead
(guilty) “
you
must know
”.
If one has regard for the prosecutor’s response this appears to
be a phonetic error in the transcription and what
the magistrate
actually asked was how many “
pc’s
”
ie previous convictions the accused had, because the prosecutor
informed her that there was “
one
previous robbery incident, the other one was withdrawn
”.
Apparently not satisfied with this response the magistrate then asked
the accused directly whether he only had one previous
conviction to
which he replied, quite candidly, that he had more, whereupon the
magistrate then proceeded to take his guilty plea
and to convict him.
5.
Given
that it appeared as if the magistrate sought to elicit information
pertaining to the accused’s criminal record prior
to conviction
she was asked to provide reasons for her conduct together with her
comments if any, in regard to why the proceedings
should not be set
aside on the grounds of a failure of justice due to a material
irregularity. In this regard s 211 of the Criminal
Procedure Act
[2]
provides that evidence of previous convictions shall not be
admissible prior to conviction in a criminal trial, except where
otherwise
expressly provided for in the Act, or where the fact of a
previous conviction is an element of the offence with which the
accused
has been charged. And s 197 expressly provides not only that
an accused shall not be asked whether he has previous convictions,
but he may not even be asked any questions which tend to show that he
has previously committed or has been charged with any offence
other
than the offence with which he has been charged.
6.
In
her reply the magistrate said that it was ’normal’ in
minor shoplifting matters for the state prosecutor to withdraw
the
charge and to divert the matter. The magistrate said that given the
accused’s insistence on pleading guilty to the charge
of theft
of goods which had a relatively minor value the court had ‘actually’
wanted to know if the matter could be
diverted and she should have
asked if the accused did not qualify for diversion but, according to
her, the prosecutor inadvertently
proceeded to divulge one of the
accused’s prior convictions.
7.
According
to the magistrate, as the accused proceeded to tender a guilty plea
in which he admitted all the requisite elements of
the offence and as
no credibility findings had to be made the information which was
elicited concerning the accused’s criminal
record played no
role in the guilty ‘verdict’ and the court was not
influenced by it. The magistrate also said that
when the accused’s
record was produced it appeared that he had numerous previous
convictions- a fact which the court did
not know beforehand. In the
circumstances the magistrate was of the view that the conviction was
in order.
8.
In
Dzukuda
[3]
the Constitutional Court reminded us that at the heart of the right
to a fair criminal trial and what infuses its purpose is for
justice
to be done and to be seen to be done. To this end a judicial officer
must conduct a criminal trial in such a manner that
her
open-mindedness, impartiality and fairness are manifest to all
concerned, especially the accused.
[4]
Impartiality, it has been said, is the ‘cornerstone’ of a
fair and just legal system and nothing is more likely to
impede
confidence in judicial proceedings than actual bias, or the
appearance thereof.
[5]
It is
important that the public should have confidence in the courts and
the system of criminal justice for upon this ‘social
order and
security’ depend.
[6]
Confidence allows for trust to develop, which ultimately results in
respect for the system and moral authority for the courts which
are
required to administer it. Unfortunately, trust and respect are
easily eroded unless there is a persistent and scrupulous adherence
to the fundamental requirement of impartiality.
9.
Justice
cannot be seen to be done when a presiding officer is partial and in
this regard it is well settled that not only actual
bias but even the
objective appearance or ‘reasonable apprehension’ thereof
(as it is more properly referred to) may
vitiate the proceedings,
rendering them a nullity.
[7]
10.
A
presiding officer should consequently refrain, at all times, from
questioning an accused in such a manner or to such an extent
as may
convey an impression that he/she is biased or partial, or that he/she
is precluded from objectively adjudicating upon the
issues before
him/her.
[8]
Where there is a
transgression of these limitations, which might prejudice an accused,
it will constitute an irregularity which
results in a failure of
justice.
[9]
11.
Appellate
courts have not hesitated to set aside criminal proceedings where a
presiding officer has exceeded the bounds of permissible
questioning
of an accused both generally
[10]
as well as in terms of s 112 (1)(b).
[11]
12.
The
section provides that where an accused pleads guilty to a charge and
the prosecutor accepts the plea the presiding officer shall
question
the accused with reference to the alleged facts of the case in order
to ascertain whether or not he admits the allegations
in the charge
to which he has pleaded and, if satisfied that he is guilty of the
offence, may then convict him on the basis of
his plea without any
evidence being tendered.
13.
The
purpose of the questioning which the magistrate is required to carry
out is to determine if the accused has committed the offence
with
which he has been charged, unlawfully and with the necessary
mens
rea
[12]
and it has been held that the provision is designed to protect an
accused, especially one who is unrepresented, from the adverse
consequences of an ill-considered plea of guilty.
[13]
14.
As
such, on this ground alone the magistrate’s questions were
irregular as they were not directed at satisfying the requirements
of
the section and had nothing to do with either the facts relevant to
the underlying allegations in the charge-sheet, or the accused’s
state of mind and knowledge of unlawfulness in relation to the
charge. And the magistrate’s explanation for what occurred
does
not hold any water and is disingenuous. If the magistrate thought
that this was potentially a matter for diversion, then she
could and
should quite simply have enquired whether this was so, from the
prosecutor. Instead she directed questions to the prosecutor
and the
accused in which she sought directly to elicit his criminal record,
even before she had taken his plea. And the reason
why she did so is
patently because she assumed, simply because the accused was eager to
plead guilty, that he must have had a criminal
record. That alone
indicates the biased lens through which the magistrate viewed the
accused. It is highly disconcerting that when
faced with the
transcript of what actually occurred, instead of owning up to her
improper conduct the magistrate sought not only
to provide an
explanation which was untenable and which is not borne out by the
transcript but sought to place the blame on the
prosecutor.
15.
It
is so that the prosecutor should not have revealed that the accused
had a criminal record and should instead have reminded the
magistrate
of the provisions of ss 211 and 197, but the reality is probably that
because the prosecutor stood in a subordinate
position to the court,
he/she felt obliged to answer the court’s questions directly
and truthfully. But it was the primary
duty of the presiding officer
to direct and to exercise control over the proceedings in such a
manner as to ensure that they were
conducted with due regard for the
principle of impartiality and the provisions of the Act. In the
circumstances one would have
expected that the magistrate would have
had the courage and sense of responsibility to admit to having erred
instead of seeking
to shift blame elsewhere and then aggravating
matters by putting forward an explanation which was untrue. In this
regard the further
statement which the magistrate made that it was
only when the accused’s record was produced that she became
aware that he
had more than one previous conviction is also not borne
out by the transcript. As we have previously pointed out, already
before
taking his plea the magistrate knew that the accused had more
than one previous conviction.
16.
Any
right-minded and reasonable observer who might have been in court at
the time could not have helped but to have grave doubts
as to whether
or not the magistrate would give the accused a fair deal, given that
she had elicited his criminal record even before
she took his plea,
and they would have had a reasonable apprehension of possible bias on
the part of the magistrate. That was enough
to destroy the confidence
which was necessary for the proceedings to enjoy the requisite
credibility and legitimacy they should
have had. The impression that
the magistrate was biased would have been further reinforced by the
fact that even though following
upon the accused’s conviction
the prosecutor indicated that the state was not intent on proving any
previous convictions,
the magistrate nonetheless insisted that she
wanted the accused’s ‘priors’ as he did not only
have a previous
conviction for robbery but had ‘others’.
17.
In
the circumstances the fact that the accused was properly convicted in
accordance with the admissions he made in his plea and
was fairly
sentenced thereafter does not mean that one can and should ignore the
fundamental unfairness that preceded this. Our
law does not
countenance a ‘no difference’ argument to this kind of
material irregularity, as contended for by the
magistrate. The
accused’s constitutional right to a fair trial was breached and
the proceedings were vitiated on the grounds
of a failure of justice
as a result of the magistrate’s apparent bias.
18.
In
Le
Grange
[14]
the Supreme Court of Appeal held
[15]
that where the proceedings in a criminal trial are vitiated by bias
there remains neither a conviction nor an acquittal on the
merits and
in terms of s 324 of the Act the accused can thus be retried. Whether
or not there should be a re-prosecution is a matter
for the
determination of the Director of Public Prosecutions who will, when
exercising his discretion, have regard for the public
interest and
the interests of justice as well the accused’s circumstances
including the time served by the accused.
19.
We
are also of the view that the magistrate’s conduct, both at the
time when the plea was taken as well as in response to
the request
for reasons, should be referred to the Magistrate’s Commission
and the Regional Court President, for their consideration.
20.
The
following Order is made:
1.
The
conviction and sentence imposed in the matter before the Regional
Magistrate of George under case no. R 140/17 are set aside.
2.
A
copy of this judgment is to be sent together with a copy of the
record in the matter under case no. R 140/17 to the Director of
Public Prosecutions, Western Cape, as well as the Magistrates’
Commission and the Regional Court President.
SHER J
I agree.
HENNEY J
[1]
Act
51
of 1977.
[2]
Act 51 of 1977.
[3]
S v Dzukuda &
Ors; S v Tshilo
[2000] ZACC 16
;
2000
(2) SACR 443
(CC) at para
[11]
.
[4]
S v Rall
1982
(1) SA 828
(AD) at 831H-832A;
S
v Mlimo
[2008] ZASCA 7
;
2008 (2) SACR 48
(SCA) at para
[10]
.
[5]
SACCAWU & Ors
v
Irvin & Johnson Ltd
[2000] ZACC 10
;
2000 (3) SA 705
(CC) at
para
[13]
.
[6]
S v Le Grange & Ors
2009 (2) SA 434
(SCA) at para [21];
referred to with approval in
Mulaudzi
v Old Mutual Life Inc Co (SA) Ltd & Ors, NDPP & Ano v
Mulaudzi
2017 (6) SA 90
(SCA) at para [47].
[7]
S v Roberts
1999 (2) SACR 243
(SCA) at para [26];
S
v Le Grange & Ors
2009
() SA 434 (SCA) at para [13].
[8]
Rall
n 4 at 832B-C.
[9]
Id
at
832H-833A
.
[10]
Rall
n 4;
Le
Grange
n
6;
S
v Tyabela
1989
(2) SA 22
(A);
S
v Maseko
1990
(1) SACR 107
(A
);
S v Aspeling
1998
(1) SACR 561
(C)
.
[11]
S v Williams
2008
(1) SACR 65 (C).
[12]
S v Nyanga
2004
(1) SACR 198
(C) 201b-e.
[13]
S v Baron
1978
(2) SA 510
(C) at 512F-G;
S
v Samuels
2016 (2) SACR
298
(WCC) at para [21].
[14]
Note 6.
[15]
Paras [30]-[31] relying on
S
v Naidoo
1962 (4) SA 348
(A) at 354D-F.