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[2018] ZAWCHC 106
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S v Gordon (171298) [2018] ZAWCHC 106 (29 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
REVIEW
171298
In
the matter between
THE
STATE
V
MAXWELL GORDON
JUDGMENT DELIVERED ON 29
AUGUST 2018
THULARE
AJ
[1]
This matter came before this court on review. The matter commenced in
the District Court sitting at a periodical court in Darling
and after
the conviction of the accused, was referred to the Regional Court for
sentencing. The Regional Magistrate, sitting in
Malmesbury, expressed
doubt on whether the proceedings were in accordance with justice, and
referred the matter to the High Court.
[2]
The Regional Magistrate did not present the Memorandum that she had
compiled, to the District Court Magistrate (the Magistrate)
before
submission to the High Court. The matter was referred back to the
Magistrate for the statement, if any, on the comments
of the Judge as
well as a response, if any, to the Memorandum of the Regional
Magistrate.
[3]
The accused was convicted on 21 February 2017. The Memorandum of the
Regional Magistrate is dated 15 September 2017. The referral
of the
matter back to the Magistrate was ordered on 12 December 2017
immediately after receipt of the record. The Magistrate in
his
statement expressed his shock at only receiving the Judges’
referral back for his statement only on 11 June 2018, that
is, some
six months later. According to the Magistrate, the record including
the referral back was simply archived without being
referred for his
attention. Except that his statement is dated 14 June 2018, the
statement bears no stamp as an indication of when
it was received by
the clerk of the court or by the Registrar of the High Court.
[4]
The accused enjoyed legal representation from Legal Aid South Africa,
but terminated their mandate just before plea. The State
put two
charges to the accused, to wit, housebreaking with intent to steal
and theft, and as an alternative, unlawful possession
of goods in
regard to which there was a reasonable suspicion that the goods had
been stolen and the accused was unable to give
a satisfactory account
of such possession. The accused pleaded not guilty to the main charge
and guilty to the alternative charge.
[5]
The record of proceedings simply state that the provisions of section
115 Act 51
of 1977 as well as section
220 Act 51
of 1977 and the
right to remain silent were fully explained. What was in fact
explained is not recorded. In any event, the accused
told the court
that he was sitting around a fire in the evening at his home when his
friend Elroy arrived with a brown sling bag
and a tog bag and asked
the accused to secure the items and that he, Elroy, would come and
fetch later. Elroy also told the accused
that he was going to fetch a
flat-screen television. The accused further said that he did not pay
much attention to what Elroy
was up to.
[6]
The Magistrate asked him at that point:
“
What
did you think?”
The response is
recorded as:
“
I thereafter thought
that he was stealing the goods the police found the items with me the
next day. I deny the housebreaking. I
did not check what was in the
bags that were in my possession”
.
(
The proceedings were recorded in
Afrikaans and this is my interpretation).
In
the next line the Magistrate recorded in Afrikaans what I interpret
as follows:
“
Alt: Court not
satisfied that the accused intended to plead guilty.”
The case was postponed for trial.
[7]
At the end of the testimony of each of the three witnesses, the
record simply reads that rights to cross-examination were explained
fully. The accused had no questions to the witness who had oversight
of the house during the temporary absence of the occupier
of the
property broken into. After her testimony the matter was postponed
for representations. It is not clear from the record
as regards the
source of and about what were these representations.
[8]
Items which were later identified by the complainant as the property
of the occupier were found behind a shack at his home during
the
absence of the accused, by the police. The report given to the police
was that the accused’s bedroom is in the main house
behind
which the shack is situated in the yard. The accused was traced,
based on information that the police received from an undisclosed
source, on the strength of which he was arrested. The sergeant who
arrested the accused testified that after his arrest the accused
told
them where he had hidden another item, a flat screen television set,
which was at a church in town.
[9]
The arresting officer, Sergeant Sakiwe Mnyamane, could not recall
whether the accused asked the police that they go to Elroy,
who
brought the items to accused, when the accused put this to him.
Subsequently, the arresting officer denied that the accused
made such
a request. The communication between the police and the accused,
including the circumstances under which the accused
took the police
to the church where the flat screen television was discovered, were
never fully explored, against the background
of the accused’s
right not to be compelled to give self-incriminating evidence. The
arresting officer also testified that
the accused told him that he
broke in and that he was on parole.
[10] After the closure of
the State case the following is noted on the record:
“
Rights
explained to accused and that he could call witnesses and right to
remain silent explained also that the extenuating statement
made is
not evidence unless it is confirmed under oath and that the
admissions made stand as evidence. Accused understands. Accused
elect
to testify in person.”
[This
is my English interpretation from Afrikaans].
[11] This court raised a
number of comments to assist the Magistrate with the concerns for
purposes of his statement. Amongst others
were the following:
“
2.
The proceedings were not mechanically recorded.
3. The matter was
postponed for 21 days for judgment, yet no reasons, part of the
composite of a judgment were delivered. It appears
that this is
serious dereliction of duty.
4. The accused faced
two counts. The verdict is only in respect of one count. Is this not
serious dereliction of duty.
5. In the absence of
reasons, on what basis can it be said that the Regional Magistrate
was in a position to satisfy himself that
the accused was convicted
in accordance with justice, to enable him to sentence the accused.”
Amongst
others, the statement of the Magistrate has the following comments:
“
3.
The Periodical Court of Darling does not have a Recording Machine,
therefore all proceedings follow in writing.
4. It is also practice
that in such instances unless requested, the reasons for judgment and
or sentence are not in writing.
5.
The accused faced one (1) count of Housebreaking with intent to steal
and theft and the Alternative Count of Possession of Stolen
Property.
He was convicted of the Main Count. My entry on the original J15
should have read ALT and not “KL.2”. The
J4 was typed
wrongfully as the accused was never convicted of two (2) Counts. See
also copy off Annexure B of the charge sheet
as well as page 3
(typed) which refer to the Main and the Alternative Charge.”
[12]
It is not clear as to whether what follows the Magistrate’s
remarks was a unilateral reconstruction of the record or
a judgment
on conviction. The structure of a judgment generally has an
Introduction
,
a set out of the
Facts,
the
Issues,
the
Law,
the
Analysis,
the
Relief
and
the
Order. (IFILARO).
Although
each judicial officer has his or her own style, the narrative that is
before the court lacked the necessary components
constructed to
fulfill eligibility to be classified as a judgment of a court. It did
not show that it was an output of industry
in the performance of
judicial functions.
[13] This matter showed
that the number of years that a Magistrate had spent on the bench, on
its own, does not mean that knowledge
and skill had been acquired
over time in this particular field of judicial office. The Magistrate
was not a new appointee to judicial
office, and had 26 years on the
bench. It is unfortunate that a person holding his rank for such a
long period did not accept the
nature of a Magistrates’ Court,
which is set out in section 4(1) of the Magistrates’ Courts
Act, 1944 ( Act No. 32
of 1944) (the 1944 Act) as follows:
“
Nature
of the courts and force of process
(1)
Every court shall be a court of
record.”
[14]
The sum of what he knew over the years did not include the knowledge
that he presided over a trial court in which he had a
duty to ensure
that his acts and the proceedings before him were captured and
preserved for authority, truth, testimony and memory
especially for
the possibility of review and appeal. The number of years on the
bench did not yield knowledge provided or learned
as a result of
previous research or study which provided useful sound understanding
of the duties on him as a presiding officer.
The Magistrate was
indifferent and nonchalant in his attitude towards his duties to keep
a proper record.
[15] Section 35(3)(h) of
the Constitution of the Republic of South Africa, 1996 (Act No. 108
of 1996) (the Constitution provides
as follows:
“
35.
Arrested detained and accused persons. –
(3)
Every accused person
has a right to a fair trial, which includes the right –
(h)
to be presumed innocent, to remain silent, and not to testify during
the proceedings;”
[16]
The attitude of the Magistrate leaves a disconcerting revelation of a
lack of knowledge or appreciation of his constitutional
obligations.
The principle of Ubuntu which is at the core of being and defines
Africa, is simply absent. Nothing on the record
gave any hope that
the Magistrate played his crucial role of giving content and meaning
to the rights of an unrepresented accused.
There is no indication
that the accused was amongst others, informed that he was under no
obligation to make a statement indicating
the basis of his defence.
It is impossible to conclude that the accused was not denied his
fundamental right to remain silent.
This rule forbids compelling a
man to give evidence which incriminates him - [
R
v Camane and Others
1925 AD 570
at
575].
[17]
There is nothing to indicate that the accused was warned that he is
under no obligation to answer questions put to him during
the plea
stage, which is an irregularity whose effect in the circumstances is
very material. There is no trace of a consideration
of accused’s
constitutional rights as demanded by section 35 (3) of the
Constitution. The conduct of the Magistrate was incompatible
with the
thrust of section 115 of the Criminal Procedure Act, 1977 (Act No. 51
of 1977) (the CPA) when dealing with an unrepresented
accused, and
section 35(3) of the Constitution. I am under a constitutional
obligation to consider the record before me through
the lens of
section 35(3), which is a provision in our supreme law. The
Magistrate failed to keep the record in such a manner that
the
particularity of the explanations given would be judged to be
adequate – [
S v Daniels en n’
ander
1983 (3) SA 275
(AA) at 299G-H].
[18]
It must appear from the record of proceedings that the accused was
asked whether an admission made by him may be recorded as
such and
that the accused was told of the effect of making a formal admission.
It must appear from the record that the purpose,
which is to relieve
the State of the necessity of proving the admitted fact by evidence,
was explained and that he was under no
obligation to make any
admission or to assist the State in proving the case against him. The
Magistrate must satisfy himself that
the decision to make formal
admissions had been made with full understanding of its meaning and
effect, and that the accused was
under no misapprehension that he was
obliged or expected to supply the State or the court with it –
[
S v Daniels, supra
at
399H-300B].
[19]
Cross-examination imposes certain obligations. There is a general
rule that when it is intended to suggest that a witness is
not
speaking the truth on a particular point, to direct the witness’
attention to the fact by questions put in cross-examination
showing
that the imputation is intended and to afford the witness an
opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending his or her
character.
[20] It is essential to
bear in mind that the rule includes that if a point in dispute is
left unchallenged in cross-examination,
the party calling the witness
is entitled to assume that the unchallenged testimony is accepted as
correct – [
President of the RSA v South African Rugby
Football Union
2000 (1) SA 1
(CC) at para 61]. The statement at
para 63 is very apposite in the explanation to be given to an
unrepresented accused which reads:
“
It
should be made clear not only that the evidence is to be challenged
but also how it is to be challenged.”
[21]
This general rule is a precept of fairness. It must be applied with
caution in a criminal trial. Where, despite the absence
of a
challenge, doubt arises about the plausibility of incriminating
evidence, the accused should benefit -[
S
v Mavinini
2009 SACR 523
(SCA) at para
13]. The intrinsic features of the evidence not challenged or other
evidence tendered at the trial should provide
some basis from which
such evidence is accepted. The explanation given to an unrepresented
accused, understood by him or her and
effect if any given thereto,
provide inherent guarantees for the fairness of accepting such
evidence. In the absence of a record
of the explanation for
cross-examination given timeously, it is difficult to conclude that
the proceedings were conducted in a
manner that was fair to the
accused.
[22]
It cannot be fair if an accused who clearly lacked familiarity with
courtroom strategy and tactics as well as legal knowledge,
was
ambushed with an explanation of his right to cross-examination after
the evidence which he did not listen to with an informed
mind, was
tendered against him. Unsophisticated accused are generally not
orientated in any way and arising out of ignorance, do
not know what
their role is and what is expected of them by the courts during
evidence-in-chief. The orientation and induction
of accused person
should ensure that such accused find their position in relation to
the unfamiliar circumstances of a court and
formally introduce them
to what is expected on what is to follow. In my view, fairness to an
unrepresented accused demands that
the right to cross-examine and the
purpose of cross-examination should be fully explained to him or her
before the first State
witness is sworn in, affirmed or warned.
[23]
“
The right to remain silent
has application at different stages of a criminal prosecution. An
arrested person is entitled to remain
silent and may not be compelled
to make any confession or admission that could
be used in evidence against that person
–
[
S
v Boesak
2001(1) SA 912 (CC) at para
24; Section 35(1)(a) and (c) of the Constitution)]. On the record
before me, when the testimony of the
accused’s alleged
admission was tendered, there was no indication that the element of
compulsion was considered. It
is incumbent upon a judicial
officer receiving such evidence, to consider whether State compulsion
or coercive means were not employed,
which element of State
compulsion or coercion would have impacted on the accused’s
right to remain silent.
[24]
The evidence of an admission made extra-curially by any person in
relation to the commission of an offence shall be admissible
in
evidence against him at any criminal proceedings in relation to that
offence if it is proved to have been made by that person
and to have
been voluntarily made – [
S v
Litako
2015 (3) SA 287
(SCA) at para
38; Section 219 of the CPA]. The Magistrate had a responsibility to
approach the evidence of the arresting officer
on the accused’s
alleged admission with a high degree of consciousness to the
accused’s constitutional rights and what
the interests of
justice required and to provide a right answer.
[25]
The Magistrate had a duty to inform the accused, and also to warn him
of the courses which were open to him at the close of
the State case
in relation to whether he should give evidence or not and to note on
the record that such an explanation had been
given – [
Rex
v Nqubuka
1950 (2) SA 363
(T) at 364].
He should have explained the rights to the accused in such a manner
that his open-mindedness, his impartiality and
his fairness was
discerned from the extent, form and manner of explanation. The
explanation should demonstrate adequate assistance
to the
unrepresented accused.
[26] The role of a
presiding officer in a criminal trial of an unrepresented accused was
set out in some length in
S v Rudman; S v Johnson; S v Xaso;
Xaso v Van Wyk NO
1989 (3) SA 368
(ECD) at 377D-379A. It is not
wrong to conclude that the Magistrate broke every rule set out
therein in the trial before him. There
is no trace, on the record,
that the Magistrate was true to the rules and was awake to his
responsibilities, which rules and responsibilities
were summed up as
follows in
S v Rudman supra
at 379A-C:
“
From
this brief review of the rules of practice which have been evolved by
the South African judiciary it is apparent that the presiding
judicial officer in the trial of an undefended accused is required to
take a more active part than a judicial officer is permitted
in the
orthodox accusatorial system, thereby, in some measure, redressing
the disadvantage the undefended accused may suffer from
the lack of
legal representation. The value to an undefended accused of, and the
benefit he derives from, judicial assistance emphasizes
the
importance of an unfaltering judicial observance of the rules of
practice intended for the protection of the undefended accused,
but
in no way minimizes the importance of legal representation.”
[27]
Three further matters called for comment in this matter. The first is
that, where a Regional Magistrate to whom a matter is
referred to by
a District Magistrate for purposes of sentence, for one or other
reason holds the view that the matter needs the
attention of the High
Court before such sentence is imposed, our sacred principle of
audi
alteram partem
places a duty on the
Regional Magistrate. He or she should provide his or her Memorandum
to the District Magistrate, for his or
her statement, which should
accompany the record to the High Court. Failure to do so does not
only deny the District Magistrate
of an opportunity to be heard on
the Memorandum, but unduly causes a delay as the High Court would
ordinarily prefer to hear the
Magistrate on the Memorandum so
compiled.
[28]
The second is the decentralisation and devolution of services to the
Magistrates’ Courts. The responsibility for provision
of key
services to the Magistrates’ Courts, like the Court Recording
Devices, Clerks of the Courts and Court Interpreters
appear to reside
with Regional Offices in the Department of Justice and Constitutional
Development. The Regional Office, Western
Cape, appear to have the
responsibility to provide these key services to the Periodical
Courts, whereas it appears that they do
not have the authority to
decide on the staff establishment.
[29]
Perhaps the complex layers of government around provision of Court
Support Services result in overlapping mandates which are
themselves
a barrier to effective and efficient support to the Magistrates. In
my view, this overlap has the result that the Regional
Head has the
responsibility for, and not the authority to attend to the staff
establishment to support the courts. This overlap
of mandates results
in insufficient staff establishments, and in my view, contributes to
the delays in the processing of reviews
and appeals from the
Magistracy and the absence of interpreters in many courts in the
Western Cape.
[30] The last, which is
also related to reasons for delays in the processing of reviews and
appeals, is the language of record.
The first comment to the
Magistrate was couched in the following terms:
“
1.
The proceedings were conducted in Afrikaans, against the background
of the direction of the Chief Justice that English is the
language of
record of all courts in the Republic of South Africa.”
The remarks hereon in the
statement of the Magistrate read as follows:
“
2.
I am aware of the directives of the Chief Justice and of the
Honourable Judge President Hlophe dated 28 February 2018.
The
proceedings in this case already started in Afrikaans on 11 July 2016
before another Presiding Officer. This trial was dealt
with at the
Periodical Court of Darling. Because the accused decided to conduct
his own defence and is also Afrikaans speaking,
I decided to proceed
in Afrikaans.”
[31]
The linguistic transformation of the South African legal system is
work in progress along other frameworks of the nation. The
Constitution recognized the historically diminished use and status of
indigenous languages and enjoins the State to take practical
and
positive measures to elevate the status and advance the use of these
languages –[Section 6 of the Constitution].
[32]
Academics have the intellectual integrity and moral courage to argue
about what the language of record should be in our courts
[
The
Role of African Languages in the South African Legal System: Towards
a Transformative Agenda
; A thesis
submitted in fulfillment of the Requirements for the degree of Master
of Arts, Rhodes University by Zakeera Docrat, November
2017]. They
can afford to argue about the law. Judges do not have the luxury to
argue about what the law should be. They have a
Constitutional
obligation to apply the law. The nation expects of Judges to resolve
disputes expeditiously in a manner that is
user friendly, practical
and cost effective.
[33] In his book on the
All African Convention,
The Awakening of a People
, 1974, Isaac
Bongani Tabata, in Chapter 4 at page 24 discussed the “Compromise”,
and gave a pyramid which I think is
very helpful to understand the
position of the Heads of Courts, led by the Chief Justice of the
Republic, on the language of record
in courts. I would replace
Tabata’s layer of liberals with political, economic and social
interests. The learned author said
the following:
“
An
analysis of the situation leads us to the fact that the reasons for
the “Compromise” are inherent in the past development
of
the people. It may help us to visualise the political structure as a
pyramid where the masses constitute the broad base, above
them are
the intellectuals, and above that again are (
political,
social and economic interests
)
while the … leaders constitute the apex of the structure.”
[34]
The leadership of the Judiciary had the difficult task to trace the
correct footing in balancing the needs and preferences
of the
population as a whole, considering the sometimes competing interests
of, but free from, any misplaced allegiance of the
masses, the
intellectuals, economic, social and political influences in the
spirit of one, sovereign, democratic state founded
on our
constitutional values. As the nation walks towards achieving the
progressive realization of an elevated status and advanced
use of all
languages in our courts, the Heads of Courts could only cut the cloth
to the size that fits the nation today.
[35]
In the spirit of section 6(3)(a) of the Constitution, the Heads of
Courts elected English as the official language for the
purposes of
litigation in our courts. In that way, litigants from Khayelitsha
cannot shop for their own Judge by constructively
excluding
Binns-Ward J from their matters through the use of isiXhosa, in the
same way that litigants from Langebaan cannot shop
for their Judge by
excluding Boqwana J by conducting the proceedings in Afrikaans, or
litigants from the Cape Flats exclude Dolamo
J by using the
lingua
franca.
[36]
The expense and delay occasioned by both transcription and
translation is immediately mitigated by the use of English. CD’s
on which proceedings are recorded no longer return with the line
“
The
record cannot be transcribed because of the use of an unknown
language”
, whereafter another
delay for the translation would be on the cards, whilst it could be a
matter like the present, where the release
of the accused forthwith
was warranted. The expense related to transcription and translation,
more so because most litigants in
the Magistrates’ Courts are
indigent and the State has to pay, is immediately camped.
[37]
Until and unless the Department of Justice and Constitutional
Development has available resources and systems to expeditiously
transcribe and prudently translate court records of proceedings from
other languages than English, Magistrates in this Division
should
heed the directive of the Chief Justice. The courts respect the
rights of litigants and witnesses to use the language they
understand. If that language is not English, the courts have
proceedings interpreted into the language that a court service user
understands. The language of the court proceedings, however, remains
English.
[38]
Periodical Courts are generally in far-flung areas away from the
cities and towns. They are generally found in townships, villages
and
farms. These are generally settlement areas where the vast majority
of the previously disadvantaged people are found. They
are vulnerable
because of levels of illiteracy. This matter showed that even the
guardians sometimes need to be guarded. The provision
of elementary
resources like functionally literate Clerks of the Court, Court
Machines and Court Interpreters are very necessary
at these courts.
It cannot be, that justice is divisible and those from outside the
cities find themselves in the island of miseries
within the sea of a
democratic and constitutional South Africa.
[39] For these reasons,
the court found that the proceedings were not in accordance with
justice and the immediate release of the
accused was ordered.
I
would further make the following order:
(a) The conviction of the
accused is set aside.
(b) A
copy of this judgment is to be served on the Honourable Minister for
Justice and Constitutional Development, to draw his attention
to the
plight of periodical courts for resources.
(c) A copy of this
judgment is to be served to the Magistrates Commission and the
National Prosecuting Authority.
…………………………………………………
.
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
………………………………………………
.
MI
SAMELA
JUDGE
OF THE HIGH COURT