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[2021] ZAWCHC 54
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S v Rossouw (C1053/2019) [2021] ZAWCHC 54 (24 March 2021)
In the High
Court of South Africa
(Western
Cape Division, Cape Town)
Case
No: High Court Ref No. 217/21
Magistrate’s
Serial No: 01/2020
Case
No. C1053/2019
In
the matter
between:
THE
STATE
And
MATTHEW
ROSSOUW
Accused
JUDGMENT
DELIVERED ON 24 MARCH 2021
LEKHULENI
AJ
INTRODUCTION
[1]
This is an automatic review in terms of section
302 of the Criminal Procedure Act 51 of 1977 (“
the
CPA”
). The accused, appeared
in the Somerset West district court on a charge of assault with
intent to do grievous bodily harm,
under case No C1053/2019. He
conducted his own defence, and after questioning by the magistrate he
was convicted and sentenced
to 12 months’ imprisonment.
FACTUAL MATRIX
[2]
The allegations against the accused were that on 29 September 2019,
he unlawfully
and intentionally assaulted one Anita Rossouw (his
mother) by hitting her with a beer bottle on her head once. On 29
November 2019,
the charge was put to the accused in terms of section
105 of the Criminal Procedure Act 51 of 1977 (“
the CPA”
)
and the accused pleaded guilty to the charge. The court then invoked
the provisions of section 112(1)(b) of the CPA. Upon questioning
by
the court, the accused admitted hitting the complainant with a beer
bottle but denied that he knew that what he was doing was
wrong and
punishable in law. Despite the fact that he did not admit
knowledge of the unlawfulness of his conduct, the court
noted that it
was satisfied that he admitted all the elements of the offence and
found the accused guilty as charged.
[3]
The State proceeded to prove previous convictions against the accused
and the matter
was postponed to 20 January 2020 for pre-sentence
reports consisting of both the Probation and Correctional Officers’
Reports.
On 20 January 2020, the prosecutor informed the court that
the Correctional Officer’s report was available and same was
handed
to the court as an exhibit. She also informed the court that
the Probation Officer’s report was not requested due to an
oversight
on the part of the State. The magistrate indicated that he
will not delay the matter any further more especially that the
accused
was in custody.
[4]
The magistrate proceeded with sentencing proceedings and noted the
recommendations
of the Correctional Officer to the effect that a
sentence in terms of section 276(1)(h) of the CPA was not a suitable
sentence.
The Court took into account the fact that the accused was
32 years old; that the accused was unmarried and that he had a child
who is living with the mother. The court eventually sentenced the
accused to a fine of 12 months’ direct imprisonment.
[5]
Months later, the matter was forwarded to the High Court for
automatic review in terms
of section 302 of the CPA. The matter was
previously allocated to a judge of this Court on 30 July 2020 for
purpose of considering
an automatic review in terms of s 302 of the
CPA. The then reviewing judge returned the record to the
magistrate, on 31 July
2020 with the following queries:
1.
On page 5 of the transcript the accused
says that he did not admit knowledge of wrongfulness, but without
further ado was convicted.
2.
On page 12 the accused was not informed of
his rights to make representations to the review Judge.
3.
Please explain why the conviction is
proper.
[6]
The matter was returned to this Court, on 08 March 2021 with the
response of the relevant
magistrate to the queries of the reviewing
judge. In his response, the presiding magistrate admitted
to
the fact that he read the record and have ascertained that the
accused did not admit knowledge of wrongfulness. He stated that
it
was an oversight on his part as he might have misunderstood the
interpreter. He chose to abide the decision of this court.
[7]
The matter was subsequently placed before me for consideration of the
review. It is
the duty of this Court in reviewing this matter to
ensure that the proceedings in the court
a quo
, as well as the
conviction and sentence, were in accordance with justice. It is
apposite to consider the procedure that unfolded
in the court
a
quo
before turning to the conviction and sentence.
[8]
The accused appeared in court for the first time on 10 October 2019
and his rights
to legal representation were explained to him. He
chose to conduct his own defence. The matter was postponed to 6
November 2019
for further investigations. On 06 November 2020, the
matter was postponed finally to 29 November 2019 for further
investigations.
On 29 November 2019, the prosecutor informed the
court that the investigations were complete. On this date, the court
still confirmed
with the accused if he still wanted to conduct his
own case and the accused confirmed that he did not want legal aid
representation.
The accused also informed the court that he was
going to plead guilty to the charge. The prosecutor informed
the court that
pursuant to the accused wanting to plead guilty she
would proceed to have the matter finalized.
[9]
Before she could put the charge to the accused, the prosecutor asked
the court for
permission to approach the accused before they could go
on record. After consulting the accused, she informed the court that
the
accused is admitting all the elements of the crime and the court
directed her to proceed reading the charge to the accused and she
obliged. After the charge was put to the accused, the court
asked the accused if he understood the charge against him and
the
accused confirmed that he did. The court proceeded to enquire from
the accused how he would plead to the charge, and the accused
indicated that he was pleading guilty. The prosecutor asked the court
to invoke the provisions of section 112(1)(b) of the CPA.
[10]
For the sake of completeness, the relevant parts of the court’s
questioning of the accused
in terms of section 112(1)(b) of the CPA
was as follows:
“
Court
:
Mr Rossouw were you upon or about 29 September 2019 at or near 29
[indistinct] in Macassar in the district of Somerset West?
Mr
Rossouw
: That’s correct your
worship.
Court
:
Thank you. Briefly tell this court in your own words as to what
happened there that is (
sic
)
made you to be standing before this court today pleading guilty to a
charge of assault with intent to do grievous bodily harm.
Tell us
what happened sir, we were not there. Try and speak up sir.
Mr
Rossouw
: Your worship I was in the home
(
sic)
in
the sleeping room
(sic)
while I was busy watching TV. My mother was busy preparing some food
for us to eat. Just before we go to eat your worship I go
to her and
ask her something, then we started to argue your worship because she
was screaming at me. After that I told her she
must stop screaming at
me your worship because I didn’t feel nice about it. Afterwards
I exit the house your worship and
took a beer bottle and hit my
mother with it.
Court
:
Did your mother during the argument lift her hand on you or hit you?
Mr
Rossouw
: No your worship.
Court
:
So you just went out and took a beer bottle and came back and hit her
with the beer bottle.
Mr
Rossouw
: That’s correct.
Court
:
Did you know that what you were doing was wrong and unlawful and that
should she lay a charge you will be arrested and brought
to the
courts for punishment?
Mr
Roussouw
: No your worship I didn’t
know.
Court
:
You didn’t know that if you hit someone with a beer bottle and
that person lays a charge you can be arrested and brought
to the
courts for punishment, you didn’t know?
Mr
Rossouw
: That’s correct your
worship. At the time of the incident I didn’t actually know
about it your worship.
Court
:
Mrs [indistinct] does the State accept the facts and the plea ma’am?
Prosecutor
:
Yes your worship the state accepts the facts and the plea.
Court
:
Thank you. Thank you sir the court is satisfied that you have
admitted all the elements of this offence. You are found guilty
as
you have pleaded guilty to the charge.”
DISCUSSION
[11]
It is trite law that section 112(1)(b) is designed to protect the
accused especially an undefended
accused, as it was the case in this
matter, from adverse consequences of ill-considered plea of guilty -
See
S v William
2008 (1) SACR 65
(C) at 6. S
ection
112(1)(b) of the CPA has to be applied with care and circumspection,
bearing in mind the presumption of innocence entrenched
in our
Constitution and the fact that where an accused's responses to
questioning suggests a possible defence, or leave room for
a
reasonable explanation other than the accused's guilt, a plea of not
guilty should be entered and the matter should be clarified
by
evidence. It must be stressed that in terms of section 112(1)(b) of
the CPA, the court should be satisfied not only that the
accused
committed the act but that he committed it unlawfully and with the
necessary
mens rea
- See
S v Lebokeng
1978
(2) SA 674
(O).
[12]
In
S v Nyanga
2004 (1) SACR 198
(C) Moosa J, observed as
follows:
“
Section
112(1)(b) questioning has two-fold purpose: firstly, to establish the
factual basis for the pleas of guilty and, secondly,
to establish the
legal basis for such plea. In the first place of the enquiry, the
admissions made may not be added to by other
means such as a process
of inferential reasoning…the second phase of the questioning
enquiry amounts essentially to a conclusion
of law based on the
admissions. From the admissions the court must conclude whether the
legal requirements for the commission of
the offence have been met.
They are the questions of unlawfulness,
actus
reus and mens rea.
These are
conclusions of law. If the court is satisfied that the admissions
adequately cover all these elements of the offence,
the court is
entitled to convict the accused on the charge to which he pleaded
guilty.”
[13]
I must say with respect that the questioning of the accused in this
matter by the learned magistrate
fell short of the above judicial
injunctions.
The court could not have been
satisfied that the accused admitted all the allegations in the
charge-sheet.
The accused did not admit that he knew that what
he was doing was unlawful. This, he repeated twice in response to
questions from
the court. The prosecutor also accepted the plea of
the accused notwithstanding the fact that the accused twice raised a
defence
in his answers when questioned by the court. In my view, the
presiding magistrate should have entered a plea of not guilty as it
was evident that the legal requirements for the commission of the
offence have not been satisfied.
[14]
It seems to me that the presiding magistrate was influenced by the
submissions of the prosecutor
in convicting the accused in these
circumstances without satisfying himself whether the accused admits
all the element of the offence.
As explained above, on 29
November 2019 the matter was on the roll for further investigations
to be conducted by the police. The
prosecutor informed the court that
the investigations were complete. The court verified with the accused
whether he still intended
to conduct his own case. The accused
informed the court that he did not intend to use the services of
Legal Aid SA and that he
intended to plead guilty to the charge. The
prosecutor informed the court that she was ready to finalise the
matter. The court
informed her to put the charge to the accused.
[15]
Prior to the prosecutor putting the charge to the accused, the
prosecutor requested permission
from the court to approach the
accused before the matter could proceed on record. After approaching
the accused, the Prosecutor
came on record and informed the court
that the accused is admitting all the elements of the offence even
before the charge was
put to the accused. It is not clear why the
prosecutor approached the accused however if it was to sway the
unrepresented accused
to admit all the elements of the offence, such
conduct with respect is wrong and has to be discouraged. An accused
person has to
plead freely and voluntarily and should not be swayed
or influenced how he should plead. Unfortunately, in this matter the
court
did
not establish directly from the
accused whether he was pleading guilty freely and voluntarily,
without being influenced thereto
by anyone.
[16]
The accused did not admit all the elements of the offence and the
court should have entered a
plea of not guilty in terms of section
113 of the CPA. In addition, there are a number of irregularities
that were committed by
the trial court. The accused was convicted as
charged, namely of assault with intent to do grievous bodily harm.
What has been
established is that the accused hit the complainant with a beer
bottle. It is not clear the degree of force that the
accused used to
hit the complainant with the bottle. Other than what is stated on the
charge sheet, it is not clear where on the
body was the complainant
struck with the said bottle. It is also not clear from the record
whether the complainant suffered any
injuries pursuant to the alleged
assault. The State did not lead evidence on the injuries sustained by
the complainant nor did
the prosecutor inform the court of the
injuries the complainant suffered.
[17]
The prosecutor did not submit any medical evidence to prove the
injuries sustained by the complaint,
if any.
Although
the actual injuries are not a requirement to be convicted of assault
with intent to do grievous bodily harm, it will have
a bearing on the
sentence imposed by the court (see
S
v Mofokeng
2013 (1) SACR 143
(FB) at
par 24).
At the time when the matter was heard, the prosecutor
informed the court that the investigation was complete
notwithstanding the
fact that the J88 Medical report was not
available. The prosecutor informed the court that she was prepared to
finalize the matter
without it.
[18]
In my view, the answers that the accused gave in response to the
questioning by the court did
not at all justify a conviction on
assault with intent to do grievous bodily harm. It must be stressed
that what distinguishes
assault with intent to do grievous bodily
harm from assault common is that in the case of assault with intent
to do grievous bodily
harm the offender must have intended to cause
the complainant grievous bodily harm - See
S
v Zwezwe
2006
(2) SACR 599
(N)
at
603
b
– d
.
The inquiry into the existence of such an intention requires
considerations of the following factors:
(i)
The nature of the weapon used and in what manner
it was used;
(ii)
The degree of force used and how such force was
used;
(iii)
The part of the body aimed at; and
(iv)
The nature of injury, if any, which
was sustained.
(See S v Dipholo 1983(4) SA 757
(T))
.
[19]
The list above is not a
numerus
clausus -
S
v Mapasa
1972
(1) SA 524
(E).
In
my considered view, there was no basis upon which the magistrate
could find that the accused was guilty of assault with intent
to do
grievous bodily harm. Even during sentence, the complainant was not
called to testify on the injuries she sustained and prosecutor
neither informed the court of the alleged injuries sustained by the
complainant.
[20]
Notwithstanding the irregularities highlighted above, I am of the
view that the prosecutor as
an officer of the court should have
informed the court on the injuries allegedly sustained by the
complainant. What is even more
concerning was that this was a family
feud. The slackness on the part of the prosecution to obtain a
Probation Officer’s
report could have been cured by the
evidence of the complainant. The prosecutor could have called the
complainant during sentencing
proceedings or at least filed a victim
impact report of the complainant.
The
Supreme Court of Appeal dealt with the role of prosecutors in
Porrit
& Another v The NDPP & others
(978/13)
[2014] ZASCA 168
(21 October 2014) at paragraph 11 stated
that:
“
Prosecutors
neither make the final decision on whether to acquit or convict, nor
on whether evidence is admissible or not.
Their
function is to place before a court what the prosecution considers to
be credible evidence relevant to what is alleged to
be a crime.
Their role excludes
any notion of winning or losing. It is to be efficiently performed
with an ingrained sense of dignity, the seriousness
and the justness
of judicial proceedings.”
(my underlining)
[21]
What is also glaring from the record of this matter is that after
convicting the accused as charged,
the court failed to inform the
accused of his right to give evidence under oath or call witnesses in
mitigation of sentence. The
Court also failed to hold an inquiry with
regard to
section 103
of the
Firearms Control Act 60 of 2000
.
Instead, the learned magistrate told the accused that in 2019 the
accused was declared unfit to possess a firearm. Despite this
error,
the court proceeded to declare the accused unfit to possess a firearm
licence without giving him the opportunity to make
submissions or
representations. This in my view, is in conflict with the notion of
fairness and justice envisaged in
section 35
of our Constitution
which requires that an accused person must have a fair trial.
[22]
The record further reveals that after sentence, the accused was
informed that the matter will
be referred to the High Court in order
for it to see if the proceedings before the court
a quo
were
in accordance with justice. The accused was not informed that he can
make written representations to the clerk of the court
within three
days of the imposition of sentence to accompany the record to the
reviewing judge. The accused in this matter was
acting in person and
in my view, the court ought to have informed him of this right,
especially given the fact that he was probably
not aware of it and
that the right of review in terms of section 302 of the CPA arises
only where the accused has no legal representation.
[23]
In
S v Jaipal
[2005] ZACC 1
;
2005 (4) SA 581
at para 39 the court stated that
‘a conviction and sentence will only be set aside if the
irregularity has led to a failure
of justice. If an irregularity
leads to an unfair trial, then that will constitute a failure of
justice. Each case will depend upon
its own facts and
peculiar circumstances.’ On a conspectus of all the facts
placed before me, I am of the view that the presiding
magistrate
failed to heed the judicial injunctions discussed above and therefore
committed a material misdirection which demands
interference by this
court.
[24]
I therefore find that not only did the Magistrate commit an
irregularity in this case but also
that such an irregularity led to a
failure of justice.
ORDER
[25]
In the result, I propose the following order:
25.1
The conviction and sentence imposed by the court
a quo
together
with the ancillary order in terms of
section 103
of the
Firearms
Control Act 60 of 2000
is reviewed and set aside
.
LEKHULENI AJ
ACTING JUDGE OF
THE HIGH COURT
I agree, and it is
so ordered
MANTAME J
JUDGE OF THE HIGH
COURT