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[2021] ZAWCHC 254
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S v Matiya (395/21) [2021] ZAWCHC 254 (6 December 2021)

Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
High Court ref: 395/21
Magistrate’s serial No. 2/2021 (special review)
Case no. TS 19/2021 (Tulbagh)
In the matter between:
THE
STATE
and
EMMANUEL
MATIYA
JUDGMENT
dated 6 December 2021
(Special review under s 116(3) of the Criminal Procedure Act)
BINNS-WARD J:
[1]
The accused was convicted on a charge of
arson in the district court at Tulbagh.  The district court
magistrate, acting in terms
of
s 116(1)(a)
of the
Criminal
Procedure Act 51 of 1977
, committed the accused to the regional court
for sentencing.  It is apparent from the record that the
regional court magistrate
had concerns about the manner in which the
trial had proceeded in the district court.  Having sought and
received the district
court magistrate’s comments about her
concerns, the regional magistrate sent the matter on special review
in terms of the proviso
to
s 116(3)(a).
Regrettably, the
regional court magistrate did not motivate her reasons in a covering
memorandum for the attention of the reviewing
judge, as is the
convention when matters are sent on special review.
[1]
I have been able to deduce the nature of the regional court
magistrate’s concerns only from her baldly stated opinion on
the
record and the request for comment she addressed to the district
court magistrate.
[2]
It would have been helpful if the regional
court magistrate had motivated her opinion to indicate precisely why
she regarded the identified
areas of concern as sufficient to suggest
that there had been a vitiating miscarriage of justice in the trial.
That, after
all, is the intention underpinning the requirement in the
proviso to
s 116(3)
requiring the regional magistrate to ‘
record
the reasons
for his or her opinion
’ why he or she
considers that the proceedings were not in accordance with justice,
or for his or her doubt that they were.
Reasoning entails not
only identifying the causes of concern, but also explaining why, in
the peculiar circumstances of the case,
those causes are regarded by
the magistrate to have possibly vitiating consequences for the
validity of the proceedings.  It
is trite that not every
shortcoming or point of criticism in the conduct of a trial supports
the conclusion that the proceedings
were not conducted substantially
in accordance with justice and the law.
[3]
The regional magistrate’s comments
indicate the areas of concern, but they do not explain why she
thought that they might be considered
to be of a vitiating
character.  I would ordinarily have remitted the matter for the
magistrate to provide the reasons for her
opinion, but decided
against that course because the resultant additional delay would be
prejudicial to the accused who has been
in custody for two years
already.
[4]
The matter currently stands postponed in
the regional court to 8 December 2021 awaiting judgment in the
special review.  The
record was received by the registrar on 1
December and placed before me the next day, on the eve of the summer
recess at a time when
I was engaged in completing other matters
before the end of term.  I have attended to it with the utmost
expedition possible
in the circumstances.  I would ordinarily
have invited a fellow judge to join me in considering the review, but
that was not
practicable having regard to the time factor and the
court being in recess.
[5]
The identifiable concerns of the regional
magistrate were (i) the manner in which the plea process was dealt
with, (ii) the number
of leading questions were put, unchecked by the
district magistrate and (iii) the district magistrate’s failure to
address the
abusive attitude of accused’s legal representative
towards the state witnesses and (iv) â€˜the lack of motivation
in the trial
court’s judgment as regards the findings of
credibility or lack thereof of all the witnesses’.
[6]
It is apparent from the record of
proceedings in the regional court that the accused has indicated an
intention, obviously with the
necessary leave, to lodge an appeal
against his conviction.  In the circumstances, and in view of my
decision, for the reasons
to be stated presently, to remit the matter
to the regional magistrate for sentence to be imposed, I shall
therefore say as little
as possible, if anything, about my
impressions on the merits of the case.
The plea process
[7]
The charge put to the accused alleged that
on 17 December 2019 he had set alight the shack of Nombulelo Majaja
at 25 Blikkiesdorp,
Gouda, in the district of Tulbagh, and thereby
destroyed the structure and its contents.  There was an
alternative charge of
malicious injury to property on the charge
sheet.
[8]
The main charge was put to the accused
without any express mention of its character as one of arson.
All the elements of the
offence with which he was charged were
however contained in what was put to him through an interpreter; it
was only the label, ‘arson’
or ‘
brandstigting
’,
that was omitted.  The record shows that the accused entered a
plea of guilty to the main charge.  The trial magistrate
should
in the circumstances have asked the prosecutor whether she accepted
the plea and then proceeded, by appropriate questioning
of the
accused, to confirm the plea, as provided for in
s 112(1)(b)
of
the
Criminal Procedure Act.  That
did not happen.  Instead,
the alternative charge was also read to the accused, and he was
called upon to plead to it.
He tendered a plea of not guilty to
the alternative charge.  His actual words (through the
interpreter) were ‘
It was not my
intentions, Your Worship
’.
[9]
Immediately after the accused had pleaded
in the manner just described, the magistrate, apparently
understanding the accused’s response
to the alternative charge to
denote a denial of criminal intention altogether, stated ‘
Thank
you.  I assume that I will note a plea of not guilty to both
charges
’.  The transcript
reflects the following recordal at that point: ‘
COURT
CHANGES PLEA TO NOT GUILTY
’.
[10]
The accused’s Legal Aid Board-appointed
legal representative thereupon confirmed that the accused’s
intention was to plead not
guilty to both the main and the
alternative charges, and indicated that there would not be a plea
explanation in terms of
s 115
of the
Criminal Procedure Act.
The
prosecutor was then invited to call the first state witness, and
the trial proceeded.
[11]
The purpose of an accused being required to
plead is that it gives the basis upon which he or she joins issue
with the prosecution
and affords the foundation on which the trial
can commence.  In the absence of a plea, there cannot be a valid
trial; the case
is not triable until the accused has pleaded,
cf.
S v Mamase and Others
2010 (1) SACR 121
(SCA).  Furthermore, and in any event, an
accused person’s fair trial rights would be vitiated if the hearing
proceeded without
him or her being informed of the charge(s) with
sufficient detail to answer it (or them); s 35(3)(a) of the
Constitution.
[12]
Despite it being desirable that the
relevant procedures with regard to recording the accused’s plea be
adhered to with punctilious
compliance with the statutory prescripts,
it is a well-documented fact that they frequently are not; see, for
example, the discussion,
with reference to various other cases, in
S
v Moses
[2018] ZAWCHC 74
(14 June
2018), 2019 (1) SACR 75
at para 9-21.  It was remarked in
that matter that the application of
s 105
of the
Criminal
Procedure Act
‘
should be approached
pragmatically rather than formalistically
’.
[13]
It is abundantly apparent when one reads
the record that the accused was fully aware of the nature of the
charges that he faced and
that his recorded pleas of not guilty to
both the main and the alternative charges were consistent with the
basis on which he intended
to join issue with the prosecution.
It is relevant that he was legally represented and that his attorney
was satisfied that
the trial should proceed after pleas of not guilty
to both charges had been recorded.  I am satisfied in the
circumstances that
there was no vitiating irregularity in the plea
process, no matter the ineptness that attended it.  The accused
was in no manner
prejudiced by the way the plea stage of the trial
proceeded.
Leading questions
[14]
It goes without saying that judges and
magistrates should take care to disallow prejudicial leading
questions by legal practitioners
or self-acting parties when leading
witnesses during their evidence in chief or in re-examination.
In cross-examination, of
course, leading questions are not only
permissible, but also often a very effective device for testing a
witness’s evidence or
putting a party’s case.
[15]
Inexperienced practitioners, as many
prosecutors in the district courts are, often find it difficult to
avoid putting leading questions
when they should not.  It is a
matter of judgment and experience to know when a leading question
might be unobjectionable, and
when it is impermissible.
Judicial officers who too readily intervene to stop every leading
question are just as likely to
prejudice the effective conduct of
proceedings as those who wrongly fail to disallow prejudicially
leading questions are to cause
the probative weight of any evidence
adduced thereby to be adversely affected.
[16]
Evidence-in-chief concerning contested
issues that is put on record by means of leading questions will not
in all cases be absolutely
disregarded, and certainly not if there
has been no objection to it.  The effect of any such evidence
has to be weighted contextually.
It may, for example, be
corroborated by evidence adduced by non-leading questions from other
witnesses, or confirmed by objective
or real evidence, or concessions
made under cross-examination by witnesses from the opposing side in
the litigation.  It may
even carry weight because of the way the
answers adduced thereby fit in with the witness’s other answers to
appropriately framed
questioning.  It all depends.
[17]
The prosecutor did indeed direct many
leading questions to the state witnesses, much more so in
re-examination that in leading them
in chief.  Many of the
questions, especially those of an introductory nature, were innocuous
and uncontentious in the context
of what was in issue.  It is
relevant to note in this regard that it soon became apparent from the
cross-examination of the
state witnesses by the accused’s legal
representative that he did not dispute having been present at the
scene with a 5-litre container
containing petrol when the fire
started.  He testified that the petrol was for his motor
vehicle, which had run out of fuel
near the Voëlvlei Dam on the road
to Gouda from Hermon.  His case was that the container had been
upset by a dog that was on
the premises and its flammable contents
had caught alight because he was smoking at the time, and his burning
cigarette had dropped
accidentally onto the spilt petrol, which had
leaked out of the container notwithstanding that he had screwed the
cap closed.
The question whether the accused had been smoking
or not was one introduced in cross-examination by the accused’s
legal representative;
it was not canvassed by the prosecutor in
leading the state witnesses in chief.
[18]
It is noteworthy that the prosecutor’s
modus operandi was to commence his examination-in-chief with a few
questions of an uncontentious
and introductory nature and then to ask
the witness to tell the court in his or her own words what they knew
about the shack fire
incident.  The essential content of each of
the state witness’s evidence concerning what they saw or
experienced at the scene
was not given in answer to leading questions
by the prosecutor.  The leading questions were directed in the
main at obtaining
elaborative detail in respect of evidence already
adduced in response to non-leading questions.
[19]
The accused’s legal representative, who
it has to be acknowledged seems to have been inexperienced, did not
object to the prosecutor’s
questioning.  I do not think,
however, that there are good grounds for criticising her failure to
do so.
[20]
The putting of a number of objectionable
leading questions by a prosecutor is no reason, of itself, in every
case to conclude that
there has been a failure of justice.  The
court has to make a qualitative assessment of the effect on the
proceedings as a whole.
The point is illustrated in the
concluding remarks by Nestadt JA (Botha and Hefer JJA concurring) in
the Appellate Division’s judgment
in
S
v Sunduza
[1989] ZASCA 13
(17 March
1989): ‘
One final observation. As I
have already indicated, the record discloses a number of examples of
the prosecutor putting, and being
allowed to put, leading questions
of an important nature and involving obviously controversial aspects
to the State witnesses. This
is unfortunate, particularly because
appellant was unrepresented. It cannot, however, affect the result of
this particular matter
’.
[21]
My overall impression on a reading of the
record in its totality is that the accused was not prejudiced,
certainly not materially,
by the leading nature of any of the
questions put by the prosecutor.
The district court magistrate’s failure to address the
abusive attitude of accused’s legal representative towards the
state witnesses
[22]
As already remarked, the record suggests
that the accused’s legal representative was an inexperienced
practitioner.  Her cross-examination
of the state witnesses was
ham-fisted in many respects.  Some of the propositions that she
put to the witnesses were crassly
formulated and, certainly in print,
gave the impression of rudeness or bullying.  Incisive
cross-examination can be quite brutal
and yet remain within
permissible bounds, but a person does not suspend his or her right to
dignity upon entering the witness box,
and it is the duty of a
presiding judge or magistrate to protect witnesses against
unwarranted abuse.  Discharging that duty
involves the exercise
of judgment and discretion.  For a judge or magistrate to appear
to be over-protective towards a witness
can be just as bad as failing
to come to a witness’s protection when the situation calls for it.
The threshold for intervention
will vary according to the judicial
officer’s assessment of the witness’s vulnerability or
robustness, as the case may be.
Some attention will also be
paid to whether or not the legal practitioner who called the witness
sees fit to raise an objection to
the manner in which the witness is
being cross-examined.
[23]
It has also to be borne in mind when
considering matters like this on the written record that what might
read on paper as if it was
unacceptably bullying or oppressive might
have come across somewhat differently in the real-life event.
Tone and body language
are more often than not something that cannot
be ascertained from the written record, whereas they would obviously
be quite evident
to those present in the courtroom when the evidence
is given.  Courts other than the trial court that have to deal
with the
matter on the printed court should therefore be cautious
before criticising the trial court for having failed to deal with
what might
appear on the record to be offensive questioning.
They must be mindful that the judicial officer presiding at the trial
is
steeped in the atmosphere and enjoys the advantage of being able
to see the interaction between witness and questioner; those being
important benefits not available to the other courts to which the
matter comes later only on paper.  There are, of course,
nevertheless
cases where the trial court’s failure to intervene
when it should have done will be manifest on the written record.
The extent
of the deference to be accorded to the judgment of the
trial court turns on a question of degree depending on the
peculiarities of
the given case.
[24]
In the current case, whilst there are a
number of passages in the accused’s legal representative’s
cross-examination of the state’s
witnesses that might well have
justified corrective intervention by the district court magistrate,
there is no indication that the
manner of questioning intimidated or
overbore any of the witnesses.  I am not persuaded that these
aspects of the trial redounded
in any way to the prejudice of the
accused or the essential integrity of the proceedings.  In
fairness to the trial magistrate,
it should be recorded that she did
intervene on occasion to correct the accused’s legal representative
when the latter addressed
questions predicated on an incorrect
understanding or misrepresentation of the evidence already given.
The prosecutor also
intervened at times to object to questions that
she regarded as unfair or confusing.
[25]
I am not persuaded that the regional court
magistrate’s concerns on this score sustain a conclusion that the
proceedings should
be vitiated as having not been conducted
substantially in accordance with justice.
The lack of motivation in the district court’s judgment as
regards the findings of credibility or lack thereof of all the
witnesses
[26]
Notwithstanding a postponement for the
purposes of judgment after the prosecutor and the accused’s legal
representative had addressed
argument at the close of the defence
case, the judgment subsequently delivered by the district court
magistrate reads like one given
extempore.  It is barely
coherent in places.  The judgment does, however, reasonably
comprehensibly, rehearse the evidence
of all the witnesses and
includes findings concerning their credibility.
[27]
Some motivation is provided for the
magistrate’s credibility findings.  For example, one of the
disputatious issues in the
trial was whether the eyewitnesses would
have been able to see what the accused was doing at the complainant’s
premises from the
spot where they said they had observed the events.
It was common ground that there was another shack between that place
and
the complainant’s property.  The magistrate found that the
eyewitnesses’ evidence was credible because their description
of
what they had seen was confirmed by the accused’s own evidence of
what he had done at the complainant’s property, such as
putting
down his green rucksack and untying the dog that was in the yard.
These were things the state witnesses could not have
made up had they
not seen them, and yet the accused steadfastly maintained that the
witnesses were dishonest in their evidence concerning
them.
[28]
The magistrate convicted the accused
because she found the evidence of the state witnesses to be truthful
and reliable and that the
accused had been a poor witness, whose
evidence was inconsistent in certain respects and improbable in
others.  Those findings
are not obviously unsupportable in my
view.  It remains open to the accused, however, to attack them
on appeal if so advised.
Nothing in this judgment derogates
from the accused’s opportunity to pursue an appeal if
he
thinks that the magistrate’s judgment was wrong.
[29]
An assessment on review in terms of
s 303
of the
Criminal Procedure Act of whether
the proceedings were in
accordance with justice is not concerned with the whether the
magistrate’s judgment was right or wrong,
save where it is obvious
that the conviction was wrong, or where there is an impelling reason
for the reviewing judge
mero motu
to doubt its soundness.  This is not one of those of such cases,
nor is it a case in which the accused is unrepresented and
there is
reason to fear that a matter that may have some prospects on appeal
will not be taken there on advice, with resultant injustice.
In
general, the question whether the magistrate’s credibility findings
and the conclusions based thereon are supportable or not
is for an
appellate court to decide if the matter goes on appeal.  If the
accused’s prospects on appeal appear to be reasonable,
he should be
able, all other things being equal, to procure his release on bail
pending such appeal.
[30]
I have dealt with this issue at some length
because I have inferred that this fourth area of concern raised by
the regional court
magistrate is predicated on her discomfort with
the sustainability of the conviction, rather than the procedural
integrity or fairness
of the trial in the district court, which is a
reviewing court’s primary focus.  I am mindful that my review
powers in terms
of
s 304
of the
Criminal Procedure Act permit
me
to lay the matter before the Division for consideration as a court of
appeal, and that a Bench consequently constituted for the
purpose
could have the matter argued before it as if it were an appeal being
heard in the ordinary course.
[2]
I am not, however, in sufficient doubt about the correctness of the
conviction in this case to take that course.  I refrain
from
setting out the reasoning for my position in that regard in any
greater particularity because, as mentioned earlier in this
judgment,
I do not wish to say anything in this review that might prejudice the
openminded consideration of any appeal that the accused
may bring of
his own volition.  I reiterate that this judgment does not, and
is not intended to, derogate in any way from his
right to pursue an
appeal remedy in the ordinary course.  All that I do hold in
this respect is that if the matter does proceed
on appeal, it must be
at his instance, rather than that of the reviewing judge.
Conclusion
[31]
In the circumstances I shall endorse the
record with a certificate that it appears to me that the proceedings
in the district court
were in accordance with justice, and direct
that the matter be remitted to the regional court to impose sentence
upon the accused.
Order
[32]
The matter is remitted to the regional
court for the imposition of sentence upon the accused.
A.G. BINNS-WARD
Judge of the High Court
[1]
If there was such a letter or memorandum, it was
not included in the papers placed before me.  It does sometimes
happen that
material that should have been included in the review
papers transmitted from the lower courts is inadvertently omitted.
[2]
Section 304(3).