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[2021] ZAWCHC 55
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Magwaca v Van Zyl and Others (141278) [2021] ZAWCHC 55 (25 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
(Coram:
Gamble, J et Henney, J)
[
Reportable
]
CASE NO: 141278
In
the matter between:
XOLILE
MAGWACA
Applicant
E
VAN ZYL
First Respondent
(In
her capacity as the Presiding Officer)
THE
DIRECTOR OF PUBLIC PROSECUTIONS
Second Respondent
XOLISILE
NDINISA
Third Respondent
(In
his capacity as the Applicant’s Legal Representative
in
the employ of Legal Aid in the court a quo)
Date
of hearing: 26 February 2021
Date
of Judgment: 25 March 2021 (delivered via email to the parties’
legal representatives)
JUDGMENT: 25 MARCH 2021
HENNEY, J
Introduction:
[1]
The applicant was arraigned before the Regional Court Parow on
charges of theft, unlawful
possession of a firearm and ammunition.
He was legally represented by the third respondent during the
trial. On 25
October 2013 he was found guilty on all charges,
and
on 9 December 2013 was sentenced to an effective period of eight
years’ imprisonment. He filed a number of applications
for leave to appeal between 9 December and 20 December 2013, all of
which were ultimately abandoned.
[2]
During the appeal process, he was represented by a different legal
representative
than the one that assisted him during the proceedings
before the Regional Court. His erstwhile legal representatives
(Hass
& Associates) were of the view that the matter must be
considered on review, and the record reflects that Gamble J, on 9
December
2014, directed that it be heard by two judges in terms of
s
22
of the
Superior Courts Act 10 of 2013
, and s 306 of the Criminal
Procedure Act 51 of 1977 (“the CPA”). This matter
was subsequently dealt with as a
review, as contemplated in terms of
the above mentioned provisions.
[3]
The presiding Regional Magistrate was cited as the first respondent,
the Director
of Public Prosecutions, Western Cape, as the second
respondent, and the legal representative that represented the
applicant before
the Magistrate in the Regional Court was cited as
the third respondent. The application, as would be customary in
matters
like these, was not opposed by the first respondent.
The second respondent opposed this application, while the third
respondent
filed an answering affidavit in respect of the issues
raised by the applicant in his founding affidavit which have a
bearing on
him.
[4]
In the notice of motion, the applicant requests this court to review
and set aside
his convictions and sentence, imposed by the first
respondent. His grounds of review are the following:
1)
That during the trial his fair trial rights, especially his
right to
effective legal representation, were undermined. More
particularly, that he gave his attorney a list of questions
which he
instructed him to ask of the witnesses, which the attorney failed to
do and which list was ignored.
2)
That prior to him being taken for a confession, he mentioned
to the
investigating officer that he wished to consult with a lawyer, but
that was similarly ignored. The confession should
therefore not
have been admitted into evidence.
3)
That the search of his property and the seizure of the firearm
and
ammunition was unlawful, and not in compliance provisions of s 22 of
the CPA.
4)
That the investigating officer failed to ascertain whether his
fingerprints were found on the firearm.
The
nature and scope of these proceedings:
[5]
In my view, if regard is to be had to the provisions of s 306 of the
CPA, it would
seem that this review is not one of those that can be
dealt with in terms of the provisions of this section. The
simple reason
for this, is that it was not a review that was sent to
the High Court in the ordinary course, in terms of s 302 of the CPA,
that
may be set down for argument as contemplated in s 306.
This
section states that: ‘(1) A Magistrates’ Court
imposing sentence which under
section 302
is
subject to review, shall forthwith inform the person convicted that
the record of the proceedings will be transmitted within
one week,
and such person may then inspect and make a copy of such record
before transmission or whilst in the possession of the
provincial or
local division, and may set down the case for argument before the
provincial or local division having jurisdiction
in like manner as if
the record had been returned or transmitted to such provincial or
local division in compliance with any order
made by it for the
purpose of bringing in review the proceedings of a magistrate’s
court
.’
This
section creates a procedure for an accused person whose case is
subject to automatic review, as an alternative to the possibility
of
having the matter dealt with in terms of the provisions of s 303, in
terms of which such review matters are dealt with by the
judge in
chambers. It creates the possibility to have the matter
enrolled for consideration, instead of submitting a written
statement
to the review court.
[6]
In Hiemstra’s
Criminal
Procedure
the following is however stated: ‘The ambit and use of this
section are unclear. Apparently it creates a form of review
for
convicted persons in automatic-review cases that is simpler than
review in terms of
section 22
of
the
Superior Courts Act
10 of 2013
.
. . . It is not clear, however, whether what is intended
in
section 306
is
a “genuine” review or the mixed review-appeal of
section
304
. Whether
an argued review under
section 306
ever
occurs in practice – and whether it really has a right of
existence – is doubtful. There is only one
reported
decision in which this section (actually, its predecessor) was
discussed, namely R v Simelane
1958 (2) SA 302
(N).
In
that
case the court held that the procedure can only be used with regard
to an irregularity and that the accused cannot set the
matter down
for argument as though it were an appeal.’
[7]
In the only reported case on this issue, referred to above,
R
v Simelane
,
at
303G-304D, Broome JP said the following:
‘
Before
I deal with these submissions I ought to say something about the
scope of
sec. 99
which, so far as I am aware, has not previously been
considered by any Court. It is clear from secs. 96 and 97 that
any convicted
person whose sentence is subject to automatic review
may submit a written statement or argument for the consideration of
the reviewing
Judge. It looks at first sight as though
sec. 99
(1) conferred upon such convicted person the right to set the case
down for argument before the Court of appeal. If this
were so,
the procedure under
sec. 99
would cover much the same field as the
ordinary procedure of appeal. It would be surprising to find
that the Legislature
had that intention. But on a careful
examination of the section it will be seen that the right of the
accused to set the
case down for argument is not an absolute right
but is qualified by the words which follow, that is by the words from
“in
like manner” to the end of the sub-section. The
extent of the qualification is not very clear, but it would seem that
the word “review” towards the end of the sub-section does
not mean “review as of course” but “review
on the
ground of irregularity”. In modern practice, of course,
an aggrieved person desiring to review the proceedings
of an inferior
court on the ground of irregularity would usually approach this Court
by way of motion, on notice to the judicial
officer and annexing to
his affidavit a certified copy of the record. But in times past
there was a procedure by way of writ
of review, sued out of this
Court, calling upon the judicial officer to transmit his record.
Sec. 99
(1) probably refers to this old procedure. If
that is so, the extent of the qualification upon the right of a
convicted person
to set the case down for argument becomes clear. He
can only do so in circumstances which would entitle him to institute
review proceedings on the ground of irregularity. It follows
that he cannot, by so setting the case down, require the Court
to
deal with the matter as though it were an appeal.’
[8]
The question, therefore, is whether this review falls to be
determined in terms of
the provisions of
s 22
of the
Superior Courts
Act, and
more specifically ss (c) and (d) thereof. In terms of
s 22(1)
the grounds upon which the proceedings of any Magistrates’
Court may be brought under review before a court of a division
are:
‘
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection of admissible or competent evidence.’
[9]
It is common cause that none of the applicant’s complaints fall
to be considered
in terms of ss (1)(a) and (b), but rather in terms
of ss (1)(c) and (d). There is also no doubt in my mind that
the second
and third complaints fall to be decided in terms of ss
(d), which deals with the question of the admission of inadmissible
or incompetent
evidence, or the rejection of admissible or competent
evidence. It is well established that a complaint about the
conviction
or sentence should be appealed to the High Court, or other
appropriate court of appeal. Where, however, a complaint is
about
the methods of the trial, or about an irregularity involved in
arriving at a decision, the best procedure to bring forward this
complaint is by way of review.
[1]
Whether an issue involves an error of law or of procedure is not
always clear.
[10]
A further question to consider regarding the applicant’s first
complaint is whether there
was a gross irregularity in the
proceedings before the Regional Magistrate. Du Toit’s
Commentary of the
Criminal Procedure Act
[2
]
describes a gross irregularity in the proceedings as an irregular act
or omission by the presiding officer.
[11]
In this particular case, however, the complaint is not that the
Regional Magistrate committed
a gross irregularity in the
proceedings, but rather that the applicant’s legal
representative failed to properly and effectively
represent him
during the proceedings, because he failed to ask certain questions as
he was instructed to.
[12]
I agree, however, with the decision in
S v Sibeko & Others
2017 (2) SACR 457
(FB) where the court concluded that under
s
22(1)(c)
the gross irregularity need not only relate to the conduct
of the presiding officer. In this particular case the Court was
of the view that, once a gross irregularity had occurred in the
proceedings, it is not necessary to establish that it caused
prejudice
to the applicant, being the accused. It is sufficient
that the irregularity is such that it is likely to cause prejudice to
the accused. Furthermore, the provisions of s 35(3)(f) of the
Constitution require that an accused is entitled to a fair
trial,
which includes his right to legal representation. If an accused
is represented by a person who, unbeknown to him, does
not have the
necessary qualifications to practice as a practitioner, such an
accused’s right as contained in s 35(3) had
been infringed,
which happened in the
Sibeko
case. Such an infringement
constitutes a gross irregularity that was likely to be cause
prejudice to the accused.
[13]
In my view, an accused person, like the applicant, has a right in
terms of s 35(3)(f) to approach
the court on review in a case like
this, where he alleges that his or her right to a fair trial was
infringed because of improper,
ineffective or incompetent legal
representation. The content of this right is well established
and recognized by our courts,
as set out in
S v Halgryn
2002
(2) SACR 211
(SCA). I conclude therefore that it would be
competent to deal with the first complaint in terms of the provisions
of s 22(1)(c).
I will deal with this complaint in more detail
further in this judgment.
[14]
It should be noted further that s 22(2) states that the section does
not affect the provisions
of any other law relating to the review of
proceedings in the Magistrates’ Court. In my view, this
refers to the review
provisions in terms of Chapter 30 of the CPA.
Before dealing with the grounds of review as set out above, and
which were
argued before us during the hearing of the matter, it
would be appropriate to firstly deal with the evidence that was
presented
before the Magistrate in the Regional Court.
Evidence:
[15]
The applicant was a police reservist at Claremont police station from
2007 until his arrest on
4 October 2010. During this period,
the firearm that is the subject of the charges on which the applicant
was convicted,
disappeared from police safekeeping at Claremont
police station. On 4 October 2010 two police officials (De
Goede and Van
Rensburg), who were both at that stage stationed at
Langa police station, received information about the presence of an
illegal
firearm at a shack at Zone 22, no. 70, Langa.
[16]
On their arrival at that location, they identified themselves,
entered the shack and found the
applicant lying on the bed. The
reason for their visit was explained to the applicant and they also
sought his permission
to search the premises, although they were not
in possession of a search warrant. I will deal with the
evidence regarding
this aspect more fully later in this judgment.
[17]
On the version of the police he had no objection. One of the
police officials, in the presence
of the applicant, found a 9mm
pistol with 11 rounds of 9mm ammunition, in a shopping bag under some
blankets in the wardrobe. The
ammunition consisted of seven
rounds of ammunition which were exclusively issued and used by the
police, plus four other rounds
marked “Lugar”, which can
be obtained by any other licensed firearm holder. The applicant
lived in that shack
with his girlfriend and their two young children.
Neither of the two police officials knew the applicant, and
only realised
that he was a reservist at the Claremont police station
after they found a police uniform in his home. At that stage,
the
applicant did not have a permit to lawfully possess a firearm and
he was arrested. The firearm was a 9mm Arabella Z 88
semi-automatic
pistol, which was in working order and was designed to
discharge centre fire ammunition. It was also one of five
firearms
that had been stolen from the Claremont police station.
[18]
Upon further investigation by the Investigating Officer, Constable
Wilson (“Wilson”),
it emerged that according to the
firearms register of Claremont police station, this firearm, with
serial number Q018649, had been
booked out, with its magazine
containing 15 rounds of ammunition, on 31 July 2009 by a Constable
Millward (“Millward”).
Wilson made this discovery
during June 2010, prior to the applicant’s arrest, when he
started to investigate the theft
of firearms at Claremont police
station. Millward, according to him, explained that he had
returned the firearm, although
there is no such entry in the
register. He had been a suspect, but the Director of Public
Prosecutions had declined to prosecute
him.
[19]
During the proceedings before the Regional Court, the Magistrate
admitted an extra-curial statement
made by the applicant, after a
trial-within-a trial was held. This court is also asked to
review the correctness of the decision
regarding the admissibility of
the statement, and to set it aside. I will also deal with this
aspect later in this judgment.
[20]
In this statement, made to a commissioned officer, Colonel Adonis
(“Adonis”), on
5 October 2010, the applicant admitted
that he had booked out this firearm, together with 10 live rounds of
ammunition, during
October 2009 in his official capacity. He
had recorded this in the Occurrence Book at Claremont police station.
He
thereafter forgot to return it after his shift and had only
discovered this fact on the train, on his way home. Worried
that
he would be in trouble at work, he hid the firearm in his
wardrobe. When the time came to return to work, he did not
return
the firearm, as he thought he would be arrested. He left
the firearm in the wardrobe and never used it. He further
stated he actually forgot about it until the day he was arrested,
when the police found the firearm under the blanket in the wardrobe.
[21]
He denied that he made the statement freely and voluntarily, and his
version in court differed
from his statement. This was that on
4 October 2010 he was woken up by De Goede, who told him that he had
information that
he (the applicant) had pointed a firearm at his
brother. At that stage, he denied that he was in possession of
a firearm.
De Goede noticed his police uniform, and he told him
that he was a reservist at Claremont police station. De Goede
then told him that he was going to search the property and he went
straight to the wardrobe, started to take the clothes out and
he was
then arrested. He only saw the firearm at the police station
and he did not steal a firearm. He denies that
any firearm, or
ammunition, was found at his house.
Evaluation:
[22]
While this is a review, not an appeal, I am of the view that the
Magistrate in her judgment gave
a proper evaluation and assessment of
the evidence presented before her. I agree with her finding
that the evidence against
the applicant was overwhelming,
and
that the state witnesses appeared to be credible and convincing, in
that they corroborated each other in all material respects
and that
there are no obvious improbabilities in their versions. Especially
in respect of the fact that they found the firearm
hidden in a
wardrobe at the applicant’s residence, when the applicant was
not known to him.
[23]
I also agree with her finding that the applicant was a poor and
unconvincing witness, and his
eventual denial of any knowledge of the
firearm and ammunition is highly improbable. Further, I agree
with her finding that
there is no reasonable possibility that the
applicant’s version can be true. She correctly rejected
his evidence as
false and untruthful.
[24]
Regarding the applicant’s allegation that he was not
effectively represented by the third
respondent during the trial, I
find that this allegation is not borne out by the record. The
record clearly shows that the
applicant actively took part in the
proceedings in that he, in respect of most if not all of the
witnesses, had given his legal
representative some written questions
to ask. The third respondent, even though he had already asked
those questions, steadfastly
and without question or reservation,
followed the applicant’s instructions. At one stage, the
impression is gained
that the applicant wanted to take charge of the
proceedings, and played an active and dominant role in the
cross-examination of
the state witnesses.
[25]
During the proceedings he even, with the assistance of the Regional
Magistrate, during the cross-examination
of almost all the witnesses,
on more than one occasion, drew the third respondent’s
attention to the fact that he wanted
to give the third respondent
further instructions in order to proceed with the cross-examination
of the witnesses. On a conspectus
of the evidence and the
record, I am more than convinced that the third respondent conducted
the defence in a most thorough and
professional manner, not to the
prejudice of the applicant, and not in a manner that would have
resulted in him not getting a fair
trial.
[26]
The applicant’s second complaint was that the Regional
Magistrate should have revisited
her earlier decision to admit his
confession, after Wilson intimated during the main trial that he saw
the applicant for the first
time on 4 October 2010 at 17:27 at the
Langa police station, after he was arrested, and that the applicant
had not wanted to talk
to him, but to his lawyer.
[27]
The applicant says that at that stage already, he had indicated that
he wanted to consult his
lawyer, before he made the statement to
either Wilson or Adonis. I do not think that this evidence of
Wilson, during the
main trial, would have been sufficient
justification for the Regional Magistrate to revisit her earlier
decision to admit the applicant’s
statement.
[28]
This is entirely based on the evidence of Wilson, who testified that
he had attempted to talk
to the applicant, when he was first
introduced to him, and that the applicant had indicated that he did
not want to speak to him,
but rather to his lawyer. At that
stage Wilson did not pursue any further discussion with the
applicant, and had not dealt
with him, because he did not have a
proper grasp of the case against the applicant, or of the
investigation of the case, and it
had been his plan only to speak to
him on the following day.
[29]
According to Wilson, he merely took the applicant from the Langa
Police cells to the Bellville
South police cells, where he himself
was stationed. Wilson, in this regard, was questioned by the
Regional Magistrate about
why the applicant then changed his mind and
indeed spoke at a later stage. In answer to this, he stated
that after he had
gone home, he was called by an advocate from the
office of the Director of Public Prosecutions, who wanted to speak to
him about
the matter. He was also instructed to charge the
applicant and have him arraigned the next day. Because of this, he
had gone
back to the police cells to prepare the applicant for
arraignment.
[30]
He went ahead to take the applicant’s warning statement, as the
applicant had indicated
that he wanted to talk to him, because he had
nothing to hide. However, he warned him before taking down the
statement that
he had the right to speak to his lawyer, to which the
applicant replied that he did not want to speak to his lawyer anymore
because
he had nothing to hide. At that point, he realised that
the statement would amount to a confession, and he stopped the
applicant.
He tried to get hold of Adonis, who was not
available. The next day, the applicant was taken to Adonis for the
confession.
[31]
The Regional Magistrate, in my view, was clearly alive to this
apparent incongruity in the evidence
given by Wilson during the
trial-within-a-trial, and the evidence which he gave during the main
trial. That would be why
she took it upon herself, as can be
observed from the record, to question him in a rather stern manner
about this issue. She
must have realized that if it was the
case that the applicant had informed Wilson, prior to him making his
statement, that he wanted
to have legal representation, she would
have had to revisit the decision to admit the statement.
[32]
The Regional Magistrate accepted Wilson’s explanation in this
regard, and cannot be faulted
for her decision. There was
therefore no reason for her to revisit her decision to admit the
statement that the applicant
made before Adonis. In my view,
she was correct in coming to such a conclusion, and her admission of
the confession, and
her decision not to revisit her admission
thereof, was sound.
[33]
The applicant’s third complaint raised in these proceedings, is
that the evidence with
regards to the search and seizure of the
firearm and ammunition should not have been admitted. This for
the reason that no
warrant had been applied for by the police
officials to search the premises, and because the applicant had not
given his permission
for such a search.
[34]
It is clear that the police officers who conducted the search of the
applicant’s premises
did so without a search warrant. The
circumstances under which a search and seizure can be conducted
without a warrant, are
set out in s 22 of the CPA. This section
makes search and seizure without a warrant lawful under the
circumstances where
the person concerned consents to the search for
and seizure of an article, or where the official who conducts the
search on reasonable
grounds believes that a warrant would have been
issued to him if he applied for one under s 21.
[35]
De Goede was the person in charge of the search and seizure operation
at the applicant’s
premises. He stated in his evidence
that after he received information about the presence of a firearm at
the specific address,
he reacted immediately. He acknowledged
that he had not been in possession of a search warrant, but he knew
if he should
apply for such a warrant that it would be granted to
him. His explanation was that, in that specific area, there
were a lot
of unlawful firearms in circulation and he was of the view
that, if he had gone to court first to apply for such a warrant, the
firearm might have been removed from the premises. It was for
that reason that he acted immediately. He further testified
that when he arrived at the premises he explained to the applicant
that he had information concerning an unlawful firearm on the
premises and that he wished to search the premises.
[36]
The applicant had not objected to him searching the premises. Van
Rensburg, the police
official that accompanied De Goede, confirmed
his evidence in all material respects and further stated that the
applicant had not
indicated that they could not search the premises.
The Regional Magistrate, as I said earlier on, found the evidence of
these
two witnesses to be credible and convincing, and I have no
reason to disagree with that finding. Based on this evidence, I
find that there had been compliance with the provisions of s 22, and
that the search and seizure of the firearm at the applicant’s
premises was lawful. The evidence admitted subsequent to the
search and seizure was therefore admissible.
[37]
The applicant’s fourth complaint was that the firearm was not
tested for fingerprints,
to prove that he had handled it. This,
in my view, falls within the purview of the assessment of the
evidence when a court
is confronted with an appeal on the merits in a
criminal matter; to test whether, on the assessment of the evidence
presented to
the court a quo, the state has proven its case beyond
reasonable doubt. In any event, however, absent any evidence of
fingerprints
and given the circumstances of the case, where the
firearm was found wrapped in a piece of cloth on the applicant’s
premises,
the absence of such evidence would not assist an accused in
his quest to show that the State has not proven its case beyond
reasonable
doubt. The other evidence is overwhelming.
[38]
In the result therefore the applicant, in my view, has failed to show
on the grounds as alleged
that the decision given by the Regional
Magistrate, which resulted in him being found guilty, should be set
aside on review.
I would therefore make the following order:
1.
That the application to review and set aside the applicant’s
convictions and sentence, is dismissed.
2.
None of the parties, for obvious reasons, incurred any costs.
I would
therefore make no such order.
R.C.A. Henney
Judge of the High Court
I
agree.
P.A.L. Gamble
Judge of the High Court
[1]
Stow v
Regional Magistrate, Port Elizabeth NO & Others
2019 (1) SACR
487
at [25].
[2]
Ch 30-p6 Revision Service 61, 2018.