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[2021] ZAWCHC 188
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S v Elmie (143/21; 16/2021) [2021] ZAWCHC 188 (11 May 2021)
In the High Court of
South Africa
(Western
Cape Division, Cape Town)
[REPORTABLE]
High
Court Ref No: 143/21
Magistrate
Serial Number: 16/2021
In
the matter between:
THE
STATE
And
ASHWIN
ELMIE
JUDGMENT: 11 MAY
2021
LEKHULENI
AJ
INTRODUCTION
[1]
This matter comes before this court by way of automatic review in
terms of the provisions
of section 302 of the Criminal Procedure Act
51 of 1977 (“
the CPA”
). The accused who was not
legally represented after he elected to conduct his own defence was
convicted in the Magistrates Court,
Cape Town on 01 April 2021 on a
charge of possession of drugs in contravention of
section 4(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
(“
Drugs and Drug
Trafficking Act&rdquo
;)
. It was alleged by the State that on 24
March 2021 and at or near Blaawberg in Potsdam Road in the District
of Cape Town, the accused
did wrongfully have in his possession an
undesirable dependence producing substance as listed in
Part III
of
schedule 2 of the Drug and Drug Trafficking Act, to wit a 1 X tik
lolly containing methamphetamine. The magistrate convicted
the
accused after he questioned him in terms of section 112(1)(b) of the
CPA and subsequently sentenced the him to 12 months’
imprisonment in terms of section 276(1)(i) of the CPA.
E
ssentially,
this court is enjoined to consider whether the proceedings before the
trial magistrate appear to be in accordance with
justice.
[2]
On 21 April 2021 this Court raised a query and requested the
presiding magistrate
to provide reasons for convicting the accused.
This was based on the fact that the presiding magistrate did not
question the accused
as to his knowledge about the substance he
possessed and on what basis he admitted that it was tik
(methamphetamine). It was also
not clear from the record why the
court did not examine the certificate of analysis of the
methamphetamine if it was available.
To this end, this Court drew the
attention of the magistrate to the case of
State
of Adams and ten Others
.
[1]
[3]
In his quick and prompt response dated 29 April 2021, the magistrate
conceded that
he erred in questioning the accused. The relevant parts
of his response is as follows:
“
The magistrate had
considered the record and concluded that he has erred in the
questioning of the accused. This is regrettable
as the accused was
undefended. The Court erred in the sense that it relied solely
on the admission of the inexperienced and
unrepresented accused. The
court further erred by not following a line of closer and more in
depth questioning to in fact determine
the accused guilty beyond
reasonable doubt.”
From
the explanation put forth by the magistrate, it is incumbent upon
this Court to examine whether the conviction and sentence
was
justifiable in the circumstances.
APPLICABLE
LEGAL PRINCIPLES AND ANALYSIS
[4]
It is a basic principle of our law that section 112(1)(b) proceedings
are intended
to protect especially an unrepresented or
ignorant
accused
from the consequences of tendering an ill-considered plea of
guilty.
[2]
The underlying
purpose of the section is to make doubly sure that an accused person
who pleads guilty, indeed has no possible defence.
[3]
Section 112(1)(b) does not provide for the conviction of the accused
merely because he himself believes that he is guilty. In all
cases in
which an accused pleads guilty the trial court must be fully informed
of the facts of the case. Questions put to an accused
under section
112(1)(b) are questions about the factual elements of the criminal
offence, not questions about conclusions of law
to be drawn from the
facts.
[4]
[5]
In
State
v Witbooi,
[5]
the
court noted that Section 112 (1)
(b)
and
section 112 (2) and (3) are primarily concerned with the facts of the
case and to ensure that an accused person is guilty
of the offence to
which he has pleaded guilty and also to ensure that he is properly
sentenced on the true facts of the case. The
court observed that
where a magistrate acts under the provisions of these sections, he
should follow a course that would enable
him to ascertain the
true facts of the case. The course recommended is to question the
accused himself with reference to the alleged
facts of the case in
order to ascertain what his version is so that the prosecutor can
know whether the account of the accused
agrees with the evidence
which he has at his disposal. If his account does not agree with the
evidence which the prosecutor has
available, the prosecutor may then
decide to place his evidence before the court and it will then be for
the court to adjudicate
upon the facts of the case.
[6]
It is the duty of the presiding officer to determine whether the
accused admits all
the allegations in the charge sheet and to satisfy
himself that the accused is indeed guilty. For present
purposes, it is
apposite to quote in full the questions that were put
by the court to the accused. The magistrate proceeded as follows:
“
Q. Do you plead
guilty freely, voluntarily and without undue influence?
A. Yes
Q. What happened?
A. I had a tik lollie in
my hand
Q Do you know tik lollie?
A. Yes, I know that
possessing lollie is punishable in law.”
[7]
These were the only questions that were put to the accused by the
court. The question
to be considered in this matter is whether the
Magistrate was satisfied that the accused knew that the substance he
had in his
possession was methamphetamine as described in Drugs and
Drug Trafficking Act. It seems to me that the court a quo did not at
all
deal with this aspect. After questioning the accused as detailed
above, the prosecutor accepted the plea and the court subsequently
convicted the accused and thereafter sentenced him to twelve months
imprisonment in terms of section 276(1)(i) of the CPA.
[8]
I must say with respect that the questioning of the accused by the
court a quo was
done in a perfunctory and desultory manner. The few
questions put to the accused and his response are deficient and
lacking in
essential details. From the above questioning, it was
not
ascertained
from the accused whether he was admitting that the offence was
committed within the jurisdiction of the court.
[6]
I
t
is also not clear who found the accused in possession of the tik
lolly. It is also not clear where did the accused find the tik
lolly.
The accused was not asked as to what was he intending to do with the
tik lolly. It was also not established how the accused
was arrested
and who arrested him. However, in terms of the charge sheet, the
accused was arrested on 24 March 2021 and appeared
for the first time
in court on 26 March 2021.
[9]
In my view, in cases such as this, justice demands that comprehensive
facts be placed
before a court before a court can proceed to deprive
an accused person his liberty. It must be stressed that section
112(1)(b)
of the CPA enjoins the court to question the accused with
reference to the alleged facts of the case in order to ascertain
whether
he or she admits the allegations in the charge. The object of
section 112(1)(b) is defeated if admissions of unlawfulness and
intent
are obtained in the absence of admissions of facts which
supports a finding of unlawfulness and intent.
[7]
[10]
With that being said, it is highly regrettable and disappointing in
this case that the prosecutor
accepted the accused’s plea and
the facts upon which the plea was based. It is highly doubtful that
the terse admissions
made by the accused were in line with the
state’s case. It must be emphasised that there were no
sufficient facts placed
before court on which the accused’s
plea was based. In my view, the acceptance of a plea under these
circumstances was not
at all justified as the admissions of the
accused were not properly made so as to justify a conviction on the
charge levelled against
him.
[11]
The accused in this case was unrepresented. In my view, the fact that
the tik lolly that he possessed
contained methamphetamine as alleged
in the charge sheet, fell outside the personal knowledge of the
accused. It must be emphasised
that the general rule in our law of
evidence is that a court may accept and rely upon an admission of an
accused despite the fact
that the facts admitted falls outside the
personal knowledge or experience of the accused.
[8]
However, our courts have adopted a more cautious and prudent approach
with regard to the plea proceedings in terms of section 112
and 115
of the CPA where such admissions are made by undefended accused.
[12]
In
S v
Giavanno Otto
,
[9]
Henney J (with Samela J concurring), observed that admissions during
plea proceedings calls for greater caution especially in cases
of
undefended accused. The learned Justice found that it is for this
reason that it has become well established that our courts
especially
in cases where an admission is based on scientific and technical
evidence, which may not ordinarily fall within the
knowledge of an
accused person requires that greater care should be taken by the
judicial officer during questioning of an accused
person in terms of
section 112(1)(b) of the CPA. As stated above, the accused’s
knowledge of methamphetamine was not tested
at all during
questioning. In fact, the accused’s admission that he knows
methamphetamine was insufficient to ground a conviction.
Furthermore,
it is my considered view that the admission was not enough to
establish that it was indeed methamphetamine in the
lolly for the
purposes of proving that it was an undesirable dependence producing
substance envisaged by the Act.
[13]
In
S v
Adams en Tien Ander Soortgelyke Sake,
[10]
the full bench of this court stated as follows in respect of a of
guilty plea on a charge of contravening section 2(a) of Act 41
of
1971 (The predecessor to The Drug and Drug Trafficking Act 140 of
1992):
“
Where an accused
is charged with contravening section 2 (a) of Act 41 of 1971 in
respect of a prohibited dependence - producing
substance such as
mandrax, and he pleads guilty and makes the admission that the
substance is indeed mandrax, the court will normally
be entitled to
convict him where he is represented by a legal representative. Where,
however, the accused is an inexperienced person
who is unrepresented,
the position is different. In such an event, the court may not simply
accept his admission of an unknown
fact. There would have to be
additional grounds on which the court rely that the admitted fact is
true before the court can be
satisfied that the accused is guilty.
The assurance concerning the acceptance of a fact which is admitted
but which is beyond the
personal knowledge of such an accused can be
obtained in different ways, for example, by closer questioning of the
accused in order
to determine the strength of the knowledge of the
matter and the surrounding circumstances are, or by examining the
relevant certificate
of analysis of the substance. Whether there is
then sufficient evidence for the magistrate to convince him that the
accused is
guilty will depend on the facts of the particular matter.
What however must still be borne in mind, is that it is the court’s
duty to convince itself of the accused’s guilt and that the
court is not relieved of this duty in this regard merely by such
an
unrepresented and inexperienced accused admitting a fact which is
beyond his knowledge”.
[14]
Our courts have favoured the view that an admission that does not
have its factual foundation
in the personal knowledge of the accused
can be accepted if the court is satisfied that the admission was well
founded and is a
reliable one.
[11]
In my view, the admission made by the accused that he knew that
possession of tik lolly is punishable in law was not sufficient
for
the court to conclude that the accused knew that what he possessed
was methamphetamine. There was nothing more placed before
court to
satisfy itself that this admission was true and reliable to enable
the court to return a verdict of guilt as it did.
[15]
More importantly, the accused did not admit that there was
methamphetamine in the lolly that
he possessed as alleged in the
charge sheet. In his answers to the presiding magistrate, the accused
only indicated that he had
tik a lolly in his hand. Regrettably, the
court did not ask him as to what was contained in the tik lolly.
Instead, the court only
asked him if he (
sic
) “knew a
tik lolly”. It seems to me the court convicted the accused by
simply assuming that the alleged tik lolly which
the accused
possessed, contained methamphetamine.
[16]
In my opinion, the court a quo should have done more in order to test
the knowledge of the accused
of this drug. The court could easily
have questioned the accused about his knowledge of this substance and
the reasons why he admitted
that indeed it was methamphetamine and
not any other substance. The court should have obtained the
certificate of analysis of the
methamphetamine in question from the
prosecutor if same was available. The court could have also asked the
prosecutor if such a
certificate was filed. As the officer of the
court, the prosecutor could as well have brought this certificate to
the attention
of the court. In
S
v Chetty,
[12]
this court stated as follows:
“
In the ordinary
course the state can and should hand in a certificate of an analysts
which proves itself and causes no problems
that what has been found
is what it is alleged to be. There may of course be other
methods by which the questioner could
satisfy himself that the
accused had good reasons to accept that the pills he intended dealing
in were what they purported to be
or did contain the drug in question
– perhaps because he had purchased them from a reliable source,
or had tried one himself,
or that some of his own experienced
customers were satisfied with their purchase from the batch in
question.”
[17]
In conclusion, the record further reveals that the court a quo
imposed a sentence of twelve months’
direct imprisonment in
terms of section 276(1)(I) of the CPA. However, the court failed to
explain to the accused his appeal rights
in terms of section 309B of
the CPA. There is also no indication whether the accused was informed
that the matter will be referred
to the High Court in order for it to
ascertain if the proceedings before the court a quo were in
accordance with justice. More
importantly, the accused was not
informed that he can make written representations in terms of section
303 of the CPA 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.
[18]
It is trite that not all irregularities are fatal and would lead to
setting aside of proceedings.
In
S
v Ndlovu
[13]
,
it was
stated that dealing with automatic review proceedings does not
require the judge to certify that the proceedings are in accordance
with law but in accordance with justice. In my opinion, the
irregularities committed in this matter by the court a quo are so
gross in nature such that they led to a complete failure of justice -
See
S v
Naidoo.
[14]
It is also my considered view, that an irregularity that leads
to an unfair trial, constitutes a failure of justice.
Of course, each
case will depend upon its own facts and peculiar circumstances.
[19]
Section 35 of the Constitution demands that an accused person be
given a fair trial. This does
not mean sympathy for crime and its
perpetrators. Nor does it mean a predilection for technical niceties
and ingenious stratagems;
it simply requires that justice be done -
See
Key
v Attorney General, Cape Provincial Division and Another
[15]
.
[20]
On a conspectus of all the facts placed before us, I am of the view
that the proceedings before
the court a quo were not in accordance to
justice. In my opinion, the irregularities committed by the court a
quo led to a failure
of justice that vitiated the proceedings.
[21]
Having made the aforesaid findings, it follows that the conviction
and sentence meted by the
court a quo on the accused has to be set
aside.
ORDER
[22]
In the result, I would propose the following order:
22.1
That the conviction of the accused for the contravention of
section
4(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
and the
sentence of twelve months’ imprisonment in terms of
Section
276(1)(i)
be set aside.
LEKHULENI AJ
ACTING JUDGE OF THE
HIGH COURT
I
agree with the judgment and proposed order of Lekhuleni AJ. I
just wish to add that it seems that the Magistrate in this
case were
not adequately trained to properly question an undefended accused in
terms of
Section 112(1)(b)
of the CPA.
In
the recent past, a number of cases
[16]
had been sent on review where the questioning of undefended accused
by Magistrates and subsequent convictions were not in accordance
with
justice. I have also been informed by judges from other
divisions that this problem is not unique to our division.
It
is for this reason that I am of the view, that a copy of this
judgment should be sent to the secretary of the Magistrate’s
Commission for the purposes of training of Magistrates, especially
inexperienced Magistrates.
HENNEY J
JUDGE OF THE HIGH
COURT
[1]
1986 (2) SA 32
(N).
[2]
S v
Samuels
2016
(2) SACR 298
(WCC) at para [21].
[3]
S
v Kholoane
2012
SACR 8 (FB).
[4]
S
v Zerky
2010
(1) SACR 460
(KZN) at 469D-E.
[5]
1978
(3) SA 590
(T) at 594 – 595.
[6]
See
S
v Heugh & others
1997
(2) SACR 291
(E
).
[7]
S
v Witbooi
1978 (3) SA 590
(T) at 595B-C.
[8]
S
v Phuzi
2019
(2) SACR 648
(FB)
at
[36];
S
v Coyne
1974
(4) SA 957 (E)
958G;
S
v Mavundla
1976
(4) SA 731
(N)
733A).
[9]
(Unreported Case Number 475/20) at para 4.
[10]
1986
(3) SA 733
(C) – Headnote at 735B-E.
[11]
S v
Leboya
2006
(1) SACR 341
(T
); See also
Du
Toit et al Commentary on the
Criminal Procedure Act
at
RS 64, 2020 ch 17-22 and the authorities quoted therein.
[12]
1984 (1) SA 411 (C).
[13]
1998 (1) SACR 599
(W) at 601.
[14]
1962 (4) SA 348 (A) 354 D-G.
[15]
[1996] ZACC 25
;
1996 (6) BCLR 788
(CC) at para 13.
[16]
(1) S v Giavanno Otto case 475/2020 (19 October 2020)
(referred to earlier in this judgment)
(2) S v Fransman
and Another 2018 (2) SAR 250 (WCC)
(3) S v Dawood
Roman; case no 16871 (30 August 2016)