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[2018] ZAWCHC 79
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S v Fransman and Another (17531; 17532) [2018] ZAWCHC 79; 2018 (2) SACR 250 (WCC) (22 June 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
[Reportable]
(
Coram
:
Henney J et Sher J)
High
Court Ref No: 17531 & 17532
Case
No: C90/17 and C83/17
Magistrate’s
Serial No: 14/17 and 13/17
In
the matter between:
THE
STATE
v
ANDRIES
FRANSMAN
NTSIKELELO
KOWA
REVIEW
JUDGMENT: 22 JUNE 2018
HENNEY
et SHER JJ:
Introduction
[1]
This judgment deals with two separate matters that were submitted for
automatic review by the magistrate of Clanwilliam, who
presided over
both. The issue for consideration is unique to these cases. In the
first matter of
S v Andries Fransman
(the “Fransman
case”) the accused was charged with one count of housebreaking
with intent to steal and theft, which
was allegedly committed on or
about 22 –23 January 2017. After his arrest on 23 February 2017
the accused made several appearances
in court and on 9 March 2017 his
right to legal representation was explained by the magistrate and he
elected to conduct his own
defence and to enter a guilty plea.
[2]
The magistrate then proceeded to question him in terms of the
provisions of s 112(1)(b) of the Criminal Procedure
Act
[1]
(“the Act”).
Upon conclusion thereof the magistrate was satisfied that the accused
had pleaded guilty to the lesser
charge of theft and after the plea
was accepted by the prosecutor the accused was convicted accordingly
and thereafter sentenced
to 24 months imprisonment in terms of the
provisions of s 276 (1)(i) of the Act.
[3]
In the second matter of
S
v Ntsikelelo Kowa
(the “Kowa case”), the accused was charged with
contravening ss 65(1)(a) and s 12 of the Road Traffic Act
[2]
(the “RTA”). It was alleged that on 15 November 2015 on
the N7 National Road in the district of Clanwilliam he drove
a motor
vehicle whilst he was under the influence of intoxicating liquor, and
without being in possession of a valid driver’s
licence.
[4]
After the accused was summonsed to appear before the magistrate, he
elected to conduct his own defence and to plead guilty to
both
charges. The magistrate then similarly proceeded to question him in
terms of the provisions of s 112(1)(b) of the Act and
on conclusion
thereof he was duly convicted as charged.
[5]
In respect of the first count he was sentenced to a fine of R10 000
or 12 months imprisonment of which R8000 or 10 months
imprisonment
was suspended for a period of 5 years on condition that he was not
again convicted of contravening the
relevant provisions
of the RTA during the period of suspension.
[6]
In respect of the second count he was sentenced to a fine of R800 or
60 days imprisonment which was wholly suspended for a period
of 5
years on similar conditions.
[7]
When the review came before this court on 17 May 2017 it was returned
to the magistrate with a query pertaining to the questioning
of both
accused in terms of the provisions of s 112(1)(b) of the Act. The
magistrate was required to explain why such questioning
had been so
cryptic and whether it constituted a true and accurate representation
of the proceedings in both matters, and why a
complete record was not
kept in light of the fact that the magistrate’s court is a
court of record, as much as the High Court
is.
[8]
The magistrate only formulated a response to this query a year later
on 8 May 2018 before thereafter returning the case records
to this
Court.
The
magistrate’s response
[9]
In her response the magistrate confirmed that all lower courts are
courts of record and that ordinarily everything which is
said during
formal proceedings before such courts should form part of the record
thereof. She said that although the record
in both matters
appeared incomplete and somewhat cryptic, the questioning of the
accused had not been so. According to her, notwithstanding
the
abbreviated notation thereof her questions were put in full sentences
and in a form clear enough for the accused to understand
and to
answer properly.
[10]
The magistrate said that it was unfortunate that she had noted the
questions in an abbreviated manner. She was aware that this
was not
the correct procedure to follow and now that it had been brought to
her attention she would make every effort to ensure
that such an
omission would not occur again. She said that she could understand
the court’s misgivings as to whether she
had been satisfied
that the accused in both matters properly pleaded guilty to all the
elements of the charges, given her incomplete
recordal of what
transpired. However, she assured the court that she had been
completely satisfied, in both matters, that each
accused had pleaded
fully to all the elements of the charges.
The
record in s 112 (1)(b) and 112 (2) proceedings
[11]
In
S v
Baron
[3]
it was held that s 112(1)(b) proceedings are intended to protect
especially an unrepresented or illiterate accused from the
consequences
of tendering an ill-considered plea of guilty.
[4]
As such, the record of the questioning in terms of s 112(1)(b) as a
whole (ie including the answers thereto) should form part of
the
record of the trial.
[12]
Although the judgment in
Baron
was handed down in the
pre-constitutional era, the sentiments expressed therein are of even
greater application today
especially if regard be had to
the provisions of s 35 of the Constitution, which guarantee an
accused’s right to a fair trial.
This includes the right to be
treated fairly during plea proceedings in terms of the provisions of
s 112(1)(b), when an accused
has elected to waive his or her right to
remain silent, and the fairness of such proceedings should
consequently be safeguarded
by the magistrate who presides over them.
[13]
To this end the magistrate should take especial care to ensure that
the questioning of the accused is carried out carefully
and with
scrupulous regard for the elements relevant to the charges at hand,
and it should further appear from the contents of
the record that
such questioning took place in a clear manner and in terms which the
accused understood. In addition, in the case
of a written notation of
the questioning the record ought, as far as possible, to be a
reproduction of what actually transpired
and should not simply be an
ex post facto
attempt at reconstructing what the magistrate
believes to be the gist of what was said, for by doing so aspects of
what was essentially
evidentiary material before the court might, to
use a colloquial phrase, thereby be lost in the subsequent
‘translation’.
[14]
Rule 66 (1) of the Magistrate’s Court rules provides that “
the
plea and explanation or statement, if any, of the accused, the
evidence orally given, any exception or objection taken in the
course
of the proceedings, the rulings and judgment of the court and any
other portion of criminal proceedings, may be noted in
shorthand...
either verbatim or in narrative form”
or may be recorded
“
by mechanical means.”
[15]
In
S v
Phundula; S v Mazibuko; S v Niewoudt
[5]
it was
pointed out that it should always be the aim of the presiding officer
when questioning an accused not only to make sure that
he/she
actually committed the offences in question, but also to ensure that
the record faithfully reflects the proceedings in which
that was
determined, even if the manual, narrative form is used instead of an
audio recording.
[16]
It should be remembered that ultimately the record of the proceedings
in a criminal trial is not only there for the benefit
of the
magistrate, but for any other court which may have to consider it
subsequently, and as such it should be an objective and
accurate
portrayal of what transpired during those proceedings.
The
Fransman
case
[17]
During the s 112(1)(b) questioning in
Fransman
, the accused
admitted that his plea of guilty was made freely and voluntary. He
further admitted that the incident happened on
the date, and at the
place, alleged in the charge-sheet. When he was asked by the
magistrate to recount what happened he said that
whilst he was on his
way to his mother’s home he had passed by the complainant’s
house and had noticed that the front
door was standing ajar. As he
did not see anybody in the house he entered it and took a television
set which he sold for R300.
He was later arrested by a policeman
after the buyer had informed him that the accused was the person who
had sold the television
set to him.
[18]
In order for the magistrate to cover the elements of housebreaking,
intent and unlawfulness, she proceeded to ask the following
questions:
“
V:
Deur?”
A: Wawyd oop. Nie
verder oopgemaak . Kon net ingestap het.
V: Eienaar permanent
onteien?
A: Ja
V Hoekom?
A: Geld nodig gehad
V: Weet verkeerd en
strafbaar?
A: Ja
”
[19]
Although this form of cryptic notation of the questioning in terms of
s 112(1)(b) is not to be encouraged as it might not always
result in
a true and accurate reflection of the actual proceedings, from our
assessment of the record the admissions which were
made in the
answers given by the accused properly established his guilt on the
lesser charge of theft on which he was convicted.
We are therefore of
the view that despite its shortcomings the proceedings in respect of
the conviction were in accordance with
justice in terms of the
provisions of s 302 of the Act, and in our view the sentence which
was imposed was also an appropriate
one.
The
Kowa
case
[20]
In
Kowa
the situation is somewhat different. On
questioning by the magistrate in respect of count 1 the accused said
that he pleaded
guilty freely and voluntarily and he admitted that
the incident took place on the N7 highway, a public road within the
area of
jurisdiction of the court, while he was driving in the
direction of Vredendal. This part of the questioning by the
magistrate,
even though it was in a similar cryptic form, resulted in
the accused providing answers which were uncontroversial. However,
the
following further questions which were put with a view to
ascertaining whether the accused’s driving skills were
impaired,
and the manner in which these questions were framed, raise
some difficulties:
“
V: Wat gebeur?
A: Stokvel gehad.
Einde van die jaar. Geld uitdeel. Ek het gedrink. Nie besef so dronk.
Bier en brandewyn gedrink. Weet nie hoeveel
nie. Eienaar van
motorvoertuig baie dronk. Besluit ek moet bestuur want nie so dronk.
Op N7 polisie ons gestop en ek is gearresteer
vir dronk bestuur. My
hospitaal toe geneem en bloed getrek. Nie padblokkade. Polisie my net
gestop.
V: Bestuursvermoë
aangetas?
A: Kan nie onthou hoe
my bestuursvermoë was. Was motor voertuig agter my.
V: Mense gekla heen en
weer oor pad?
A: Kan nie stry want
was aand en ek het gedrink.”
Then
in a follow-up question he was asked:
“
V: Indien
nugter sou beter bestuur of nie bestuur?
A: Stem saam.”
[21]
From the manner in which this questioning proceeded it is not
apparent that the admissions which the accused made on this aspect
were clear and unequivocal. As is apparent, he said he was not ‘so
drunk’ (sic) and could not remember whether his
driving skills
or abilities were impaired at the time. Although he made reference
to a motor vehicle which was behind him
it is not clear whether
this was at a time when he was driving or when his vehicle was
stationary, and the relevance of this vehicle
in relation to the
offence in question was never made clear. In this regard it is not
apparent from the questioning whether the
occupants of the vehicle
observed that he was driving his vehicle inappropriately or back and
forth across the road or whether
someone else saw this, or even
whether this in fact happened at all. It was merely suggested to the
accused by the magistrate that
‘persons’ had complained
that he was driving back and forth across the road. In the
absence of such an allegation
in the charge-sheet it is not apparent
where this averment came from. It was not in direct answer to any
preceding question which
was posed by the magistrate and it was
simply put in the form of a statement to the accused, and his answer
acceding to such a
possibility hardly constituted an admission that
his driving abilities were impaired. In the circumstances it is a
cause for concern
that the magistrate even put such a statement to
the accused. Either she was indulging in conjecture or she was
privy to
information which was not included in the charge-sheet, but
which may have been obtained elsewhere.
[22]
If this is the record of the proceedings in respect of which the
magistrate says that she was satisfied that the accused admitted
all
the material allegations in the charge-sheet and upon which she based
her conviction she surely could not have arrived at such
a
conclusion. We are not satisfied from the record we have before us
that the accused properly made the necessary admissions which
were
required in order for the magistrate to be satisfied, beyond a
reasonable doubt, that the accused’s driving abilities
were
impaired so as to conclude that he was guilty of driving under the
influence of intoxicating liquor in contravention of s
65 of the RTA.
[23] As a court of review
we are required in terms of s 302 of the Act to make a determination
as to whether the proceedings before
the magistrate were in
accordance with justice. Given the deficiencies in the record which
we have highlighted, we find ourselves
unable to make such a
finding. In the circumstances the conviction on this charge
cannot stand and must be set aside.
Inordinate
Delay
[24]
This is unfortunately once again one of those many instances where a
matter which is subject to automatic review has been delayed
inordinately. It was remitted back to the magistrate on 22 May 2017
with a query and a directive that the magistrate should reply
thereto
on or before 15 June 2017. From the official court date stamps it
seems that the query was received by the magistrate on
29 May 2017
but her response thereto was only finalised on 8 May 2018, almost a
year later, and the matter was only returned to
the registrar’s
office on 25 May 2018.
[25]
In trying to explain the delay the magistrate says that she requested
the clerk who dealt with the reviews to furnish her with
the original
files relating to the two matters; that the clerk initially forgot
about her instructions and then upon her reminding
him, took some
weeks to trace the files. The magistrate further states that when she
eventually received the files she was simply
swamped with work,
having taken over as head of office and having to mentor a colleague
who had replaced her in the criminal courts.
She said that it was
only ‘now’ (presumably this meant in May 2018) that she
had been able to catch up on the backlog
of matters she had to deal
with. She said that she was aware that queries in review matters were
urgent and that the responsibility
to attend to them rested squarely
on her shoulders.
[26]
Regrettably, the explanation which was given by the magistrate is not
acceptable. She failed firstly, to comply with the directive
that the
review query should be answered on or before 15 June 2017. One would
have expected that in the event that it was not possible
for her to
do so as a result of factors beyond her control, she would as a
matter of common courtesy and with a view to discharging
her duty to
report back to this court, have timeously informed the Registrar
accordingly. But that aside, we are unable to
accept that her
workload was of such a nature that she did not have any opportunity
or time within a period of 12 months, to answer
the review query.
Even on her own sparse explanation it is very apparent that she did
not give the matter the attention it should
have enjoyed.
[27]
As the magistrate correctly stated, matters sent to the High Court on
automatic review are inherently urgent, and the Act prescribes
a
specific procedure that has to be followed to expedite them. We
therefore find it astonishing that the magistrate regarded her
other
duties such as the training of a colleague as more pressing and
urgent. The urgency in review matters lies in the fact
that any
delay might adversely affect an accused’s constitutional
rights, which not only include the right to a fair trial,
but a host
of other rights, such as the right to dignity, freedom and access to
court, as well as the right to a speedy trial and
the right to appeal
or review.
[28]
In our view, the responsibilities which the magistrate had to attend
to could not be treated as being more urgent or pressing,
because her
primary function was to administer justice in terms of the
Constitution and this duty required her to attend to any
outstanding
queries in review matters as expeditiously as possible.
[29]
But in this regard it was not only the magistrate who was remiss in
discharging her duty towards this Court and it seems to
us that the
administrative component including the Clerk of the Court, and the
Office and Court Managers were also at fault.
[30]
Undue delays i
n
automatic
review
matters have become a regular occurrence in this division, so much so
that this Court recently expressed its displeasure
about this
unacceptable state of affairs in the reported matters of
S
v Jacobs; S v Swart; S v Damon; S v Jas; S v Klaasen; S v Swanepoel;
S v Xhantibe
[6]
in which we dealt with a number of late reviews from various
magistrates’ courts
[7]
in
the Western Cape, which in our view were symptomatic of a widespread
and endemic problem. With a view to eradicating this unacceptable
state of affairs we made a number of recommendations for
consideration by the relevant stakeholders, including 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, and the Judge-President.
[31]
Amongst the remedial measures we offered for consideration was the
introduction of an ‘outstanding automatic reviews’
list
(modelled along the lines of the reserved judgment list which this
Court and certain of the other divisions of the High Court
keep), in
which the particulars of all outstanding reviews (with reference to
each magistrates’ court, and the case
numbers and names
of the parties and the presiding officers concerned) would be kept,
and updated on a weekly/bi-monthly or monthly
basis. We pointed
out that the Heads of the Magistrates’ Courts within this
division, including the Regional Court
President and the heads of the
administrative regions were required to account to the
Judge-President for the management of their
courts
[8]
and the Judge-President was responsible
[9]
(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 included the
management of procedures to be followed in respect of case-flow
management
[10]
and the finalisation of any matter before a judicial officer
including any outstanding judgment, decision or order.
[11]
Case-flow management in turn 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 (the ‘PEEC’) under the control and
supervision of the Judge-President.
[12]
[32]
In light of the particular problems which were being experienced at
certain of the magistrates’ courts we have referred
to
[13]
we directed 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. The idea of making
such an order
was for us to determine whether there were other accused who were
awaiting but unable to exercise their constitutional
rights of
review, as well as whether there were accused whose rights of review
had been rendered nugatory because of undue delay,
and we were of the
view that it would also reveal the extent of any administrative,
systemic problem at these courts.
[33] Finally, given the
widespread delays experienced at all the magistrates’ courts
from whom we had matters before us, we
directed 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 should report back to us in 3
months in respect of the outcome of such audits and any remedial and
disciplinary measures which
had been instituted pursuant thereto, in
order to address these deficiencies and lack of resources.
[34]
Pursuant to these directives and recommendations the Regional Head
appointed a task team comprising of the Director of Legal
Administration and Court Operation and the Area Court Managers of the
Bellville and the Wynberg clusters, to conduct an operational
audit
of each of the magistrates’ courts concerned, in respect of
administrative and systemic deficiencies and lack
of resources with
particular reference to the transcription, processing and
transmission of the records in automatic review cases.
The task team
consulted members of the administrative staff at the relevant courts
and the two Chief Magistrates of the clusters
referred to, as well as
the Regional Head of the Office of the Chief Justice. Subsequently,
the task team prepared a full report
which was submitted to us in
November 2017.
[35]
In the report, the team identified various systemic and
administrative deficiencies including staff shortages and lack of
resources, and technological and personnel challenges pertaining to
the use of outdated DCRS (Digital Court Recording Systems) equipment
and software and transcription services, which were being phased out
pending the introduction of a new wholly digital CRT (Court
Recording
Technology) system. The team also identified a number of persons at
each of the various courts which it was of the view
had been
negligent in the discharge of their duties and in respect of whom
disciplinary action was to be taken.
[36]
The team further pointed out that as a result of our judgment the
Acting Deputy DG: Court Services in the Department of Justice
had
issued a Circular
[14]
in
October 2017 to all Clerks of the Criminal Courts and Court and Area
Court Managers, in which their attention was drawn to the
relevant
legal provisions and departmental prescripts including those set out
in Circular 14 of 2010
[15]
which provided that all magistrates were to keep personal review and
appeal registers which were to be checked, monthly, not only
by the
magistrate of the district or the responsible senior magistrate
concerned
[16]
but also by the
Court and Area Court Managers.
[17]
[37]
A repeated refrain in the report, which was emphasised a number of
times, was that there were inadequate control measures in
place and a
‘general’ lack of proper checking and monitoring by the
administrative component as well as by members
of the magistracy,
both in regard to incomplete records as well as in regard to review
register entries. The team found that ‘in
general’
magistrates were not keeping proper personal review registers, as
prescribed in terms of Circular 14 of 2010 and
overall there was a
lack of communication between the Clerks of the relevant magistrates’
courts and the Registrar’s
office, in regard to the ‘tracking
and tracing’ of automatic review matters and queries pertaining
thereto.
[38]
The team reported that together with the Area Court Managers the
Regional Head would monitor compliance with the requirements
of
Circular 71 of 2017, and a monthly audit on outstanding reviews would
be introduced for each cluster, the result of which would
be
submitted to the Director Court Operations and the Provincial Head:
Office of the Chief Justice, for reporting and ‘high
level
monitoring’ purposes, including for further deliberation at
PEEC meetings. We note that as part of their recommendations
as to
how to deal with this problem the Chief Registrar of this Court and
the Provincial Head: OCJ agreed that there should be
a monthly
‘schedule’ ie a list as well as a monthly audit of
outstanding reviews from the magistrates’ courts.
[39]
It is disconcerting that notwithstanding these laudable attempts at
putting a system in place which will prevent a recurrence
of
egregious delay in such matters and which will adequately monitor and
ensure timeous compliance with their duties in this regard
by
magistrates and administrative managers, almost a year after the
judgment we handed down there are still magistrates who appear
not to
understand the urgency associated with automatic review matters and
the importance of resolving queries in regard to such
matters,
expeditiously. And clearly there is still no proper monitoring and
control system in place at an administrative level,
both locally as
well as at the Registrar’s office. Had there been a proper
system of control and monitoring in place this
matter would have been
picked up and the query attended to long ago. Instead, it appears
that there are still magistrates, Clerks
and Court and Area Court
Managers who are not attending to their duties in regard to these
matters, and the current system that
is in place is still not able to
detect defaulters and allows for outstanding reviews to linger,
unresolved, for lengthy periods
of time. This is not in the interests
of justice and cannot be allowed to continue.
[40]
Were it not for the magistrate deciding eventually to respond of her
own accord to the outstanding query it would probably
have remained
undetected and unresolved.
[41]
It has become obvious to us that apart from having to rely only on
attempts by Court and Area Court Managers and Chief Magistrates
to
enforce stringent compliance at the level of the magistrates’
courts, in order to eradicate this problem there should
be an active
and complementary support system in place at the level of this
Court whereby the Chief Registrar not only keeps
a record/list of
outstanding reviews but takes pro-active steps to follow up on any
outstanding queries in relation to such matters,
and on a monthly
basis reminds recalcitrant magistrates and managers to attend to
them, on pain of being reported to the Magistrates’
Commission
and the relevant Chief Magistrates.
[42]
In
Jacobs
et al
we warned
[18]
that
if
an accused’s constitutional right of review was effectively
stymied and rendered nugatory because of egregious delay, his
constitutional right to a fair trial will have been infringed and
this may constitute a failure of justice which will result in
this
Court not only declining on review to certify that the proceedings
were in accordance with justice, but also setting them
aside or
making any other order in connection with them as would seem likely
to promote the ends of justice
.
We
pointed out that
judicial
pro-activism required that this Court move beyond being a merely
passive bystander lamenting lengthy 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 had a duty not only to the accused in the particular review
before it but also to other unrepresented accused
who might have been
sentenced at a particular magistrate’s court where there was a
clear problem in the timely processing
and transmission of the
records in automatic review matters, to ensure that effective
measures were taken to resolve such deficiencies.
[43] We wish to reaffirm
the sentiments we expressed in
Jacobs
and to urge the relevant
stakeholders to conduct a careful and thorough re-appraisal of the
entire system which has been adopted
in regard to automatic reviews,
with particular reference to the issue of undue delay, both in regard
to the forwarding of the
records in such matters to this Court, as
well as in regard to the way in which queries which have been raised
by this Court are
processed and responded to
.
To this end we
have provided for an order which directs the Regional Head of the
Department of Justice to conduct a full retrospective
review of the
system which has been put in place since the date of the Head’s
report to this Court in November 2017, with
particular reference to
the number of automatic reviews referred from all magistrates’
courts in the Western Cape to this
Court and the outcome of such
matters (including matters which were subject to queries). In
addition, we have provided for an order
directing the Regional Head
to investigate the circumstances which gave rise to the fact that the
review query was not attended
to, and whether anyone of the
functionaries or officials concerned were derelict in their duties in
this regard.
[44]
In addition we are of the view that as far as the magistrate is
concerned the matter should be referred to the Magistrates
Commission, for it to consider whether her conduct in relation to the
delay warrants the institution of disciplinary proceedings.
In
discharging its duty in this regard we would hope that the Commission
will also actively engage the other role-players in formulating
an
effective strategy that will prevent any future unnecessary and
unreasonable delays by magistrates within this division in submitting
cases for review, and in responding to queries in such matter. A
progress report in this regard, should similarly be submitted
to the
Registrar of this court on or before 30 September 2018.
[45]
In the result, we make the following order:
45.1 The proceedings in
S
v Fransman
are declared to be in accordance with justice (in
respect of both conviction and sentence), and the record in this
matter is returned
herewith.
45.2 In regard to the
matter of
S v Ntsikelelo Kowa
:
45.2.1 the conviction and
sentence on count 1 (the contravention of s 65(1)(a) of the Road
Traffic Act 93 of 1996 by driving a motor
vehicle whilst under the
influence of intoxicating liquor), are set aside on the grounds that
the proceedings in respect of this
count are not in accordance with
justice; and
45.2.2 The conviction and
sentence in respect of count 2 (the contravention of s 12 of the Road
Traffic Act, 93 of 1996 by driving
a motor vehicle without a licence)
are declared to be in accordance with justice; and the record in this
matter is returned herewith.
45.3 The Chief Registrar
of the High Court shall furnish a copy of this judgment 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’ head(s) for the Citrusdal
magistrates’ court, as well as the
head of such court.
45.4 The Magistrates’
Commission is directed to conduct an enquiry into the failure by the
presiding magistrate in the
Fransman
and
Kowa
matters
to attend to the outstanding query from this court dated May 2017
until May 2018, with a view to considering whether such
conduct was
improper, negligent and/or remiss in any way and if so, shall
consider whether disciplinary proceedings should
be held in
regard thereto, and the Secretary of the Commission shall report back
to this court in regard to the outcome of such
enquiry and
disciplinary proceedings, if any, on or before 1 October 2018.
45.6 The Regional Head of
the Department of Justice is directed to conduct an enquiry in order
to determine:
45.6.1 the circumstances
which resulted in the query which was addressed to the magistrate in
May 2017 in respect of the aforesaid
matters only being responded to
in May 2018, with particular reference as to
45.6.2 whether the Clerk
of the Criminal Court and the Court and/or Area Court Managers of the
Citrusdal Magistrate’s Court
and/or any other officials were
negligent and/or remiss in their duties in regard to the aforesaid
query and/or in failing to taking
steps to ensure that it was
attended to timeously, and pursuant thereto
45.7 The Regional Head
shall furnish this Court as well as the Secretary of the Magistrates’
Commission on or before 1 October
2018 with his report in this
regard, which report shall indicate whether any disciplinary action
was taken in terms of the preceding
paragraph and the outcome
thereof.
45.8 The Regional Head of
the Department of Justice shall (together with the Chief
Magistrate(s) and judicial administrative/’cluster’
head(s) for the Citrusdal magistrates’ court and with the
assistance of the Regional Head of the Office of the Chief Justice
and the Chief Registrar, as well as the Magistrates’
Commission), conduct a full retrospective review of the system which
was put in place in regard to the processing, forwarding, monitoring
and control of automatic reviews from all magistrates’
courts
in the Western Cape since the date of the Regional Head’s
report to this Court in November 2017, with particular reference
to
the issue of undue delay, both in regard to the forwarding of the
records in such matters to this Court, as well as in regard
to the
way in which queries which have been raised by this Court in relation
to such matters are processed and responded to, and
shall provide
this Court with a comprehensive report in this regard, by no later
than by 15 November 2018
_____________
RCA
HENNEY
Judge
of the High Court
__________
ML
SHER
Judge
of the High Court
[1]
Act 51 of 1977.
[2]
Act 93 of 1996.
[3]
1978 (2) SA 510
NC.
[4]
Id
at 512F-G;
S
v Samuels
2016 (2) SACR 298
(WCC) at para [21].
[5]
1978(4) 855 TPD.
[6]
2017 (2) SACR 546
(WCC) (16 August 2017)
[7]
Including Caledon, Montagu, Vredendal and Ceres.
[8]
[8]
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.
[9]
In terms of
S 8(4)(c)
of the
Superior Courts Act 10 of 2013
and cl 4
of the Norms and Standards.
[10]
Cl 4 (v)(a) of the Norms and Standards.
[11]
Cl 4 (v)(b).
[12]
Cl 5.2.4 (ii).
[13]
Notably the Caledon and Montagu courts.
[14]
No. 71 of 2017.
[15]
Which was circulated to all magistrates by the Chief Magistrates’
(Heads of Court) Forum on 8 March 2010.
[16]
In terms of Circular 14/2010.
[17]
In terms of Circular 71/2017.
[18]
Note 6 at para [40].