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[2012] ZAGPJHC 141
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S v Khumalo (110/12) [2012] ZAGPJHC 141 (22 August 2012)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
110/12
DATE:22/08/2012
In
the matter between:
STATE
.....................................................................................................
Claimant
and
KHUMALO
...............................................................................................
Accused
J U D G M E N T
Summary
Review - failure to complete
cross-examination of a witness in a criminal trial –
infringement of constitutional right. Review
permissible even where
accused person represented in a lower court – Requirement is
that magistrate must form the opinion
that the proceedings might not
be in accordance with justice.
WEPENER, J
:
[1] This matter comes on review
pursuant to s 304A of the Criminal Procedure Act 51 of 1977 (the
CPA). The accused was charged with
a count of robbery and pleaded not
guilty. The regional magistrate in the court below (Germiston
Regional Court) advised that the
magistrate of the district court,
Germiston, commenced the trial on 25 April 2012 and concluded it on
11 June 2012 when the accused
was found guilty and referred to the
regional court pursuant to the terms of s 116 of the CPA, for
sentence.
[2] Prior to imposing a sentence
the regional magistrate noticed that after the complainant had given
her evidence in chief, the
witness was cross-examined by the defence
attorney. The matter was postponed to a subsequent date for further
cross-examination
of the complainant by the accused’s legal
representative. On the subsequent trial date the complainant failed
to attend court
and the State’s case was closed. The accused’s
legal representative applied for the discharge of the accused in the
district court pursuant to the provisions of s 174 of the CPA by
virtue of the fact that the accused’s right to cross-examine
was infringed and that such an infringement was fatal to the State’s
case. The district magistrate, however, refused such
a discharge and
the accused thereafter closed his case without leading any evidence.
The defence attorney again applied for the
accused to be acquitted on
the basis that there had been an infringement of his fundamental
rights and in particular an infringement
of the rights enshrined in s
35(3) of the Constitution which provides:
“
35. Arrested,
detained and accused persons.
(3) Every
accused person has a right to a fair trial, which includes the right—
(
a
)
to be informed of the charge with sufficient detail to answer it;
(
b
)
to have adequate time and facilities to prepare a defence;
(
c
)
to a public trial before an ordinary court;
(
d
)
to have their trial begin and conclude without unreasonable delay;
(
e
)
to be present when being tried;
(
f
)to
choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
(
g
)
to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly;
(
h
)
to be presumed innocent, to remain silent, and not to testify during
the proceedings;
(
i
)
to adduce and challenge evidence;
(
j
)
not to be compelled to give self-incriminating evidence;
(
k
)
to be tried in a language that the accused person understands or, if
that is not practicable, to have the proceedings interpreted
in that
language;
(
l
)
not to be convicted for an act or omission that was not an offence
under either national or international law at the time it was
committed or omitted;
(
m
)
not to be tried for an offence in respect of an act or omission for
which that person has previously been either acquitted or
convicted;
(
n
)
to the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the offence has been changed
between
the time that the offence was committed and the time of sentencing;
and
(
o
)of
appeal to, or review by, a higher court
.
”
S 35(3)(i) provides for the right
of an accused person to challenge evidence lead at a trial. The
attorney appearing for the accused
argued that the evidence of the
complainant was not fully tested since cross-examination had not been
completed, which, it was
argued, lead to and irregularity infringing
upon the accused’s constitutional right to challenge evidence
lead at a trial.
[3] During judgment the
magistrate nevertheless summarised the evidence of the complainant,
referred to the fact that the evidence
of a single witness should be
approached with caution and found that the complainant was a credible
witness and accepted her evidence.
The magistrate found that the
identity of the accused had been proven and that he committed the
crime of robbery. The accused was
found guilty as charged and,
because of his record of previous convictions, referred to the
regional court for purpose of sentence.
[4] The first question to be
determined is whether the right to cross-examination is so
fundamental that a failure to complete cross-examination
of a witness
leads to a failure of justice, resulting in the setting aside of the
conviction. The second question is whether the
matter is reviewable
having regard to the fact that the accused enjoyed legal
representation.
[5] S 304A(1)(a) of the CPA
provides:
“
Review
of proceedings before sentence.
If a magistrate
or regional magistrate after conviction but before sentence is of
the opinion that the proceedings in respect
of which he brought in a
conviction are not in accordance with justice, or that doubt exists
whether the proceedings are in accordance
with justice, he shall,
without sentencing the accused, record the reasons for his opinion
and transmit them, together with the
record of the proceedings, to
the registrar of the provincial division having jurisdiction, and
such registrar shall, as soon
as practicable, lay the same for
review in chambers before a judge, who shall have the same powers in
respect of such proceedings
as if the record thereof had been laid
before him in terms of
section
303
.
”
Although the section, on face
value, provides for a magistrate who has doubts, prior to sentence,
about the correctness of the conviction
which he or she brought in,
it has been held that review proceedings pursuant to s 304A of the
CPA may be submitted to a judge
for review by a magistrate who first
becomes aware of the proceedings at the sentencing stage. Where a
case comes before a magistrate
for purposes of sentence in terms of s
275 of the CPA (where another magistrate has entered the conviction)
the procedure in s
304A of the CPA is available to him or her so that
he or she may refer the case for review before imposition of
sentence, where
he or she is of the opinion that the conviction was
not in accordance with justice (
S
v Hlongwane
1990 (1)
SACR 310
(NC);
S v
Abrahams
1991 (1) SACR
633
(O) at 636a - b;
S
v Klaase
1998 (1) SACR
317
(C) at 321i - 322a).
[6] The accused was legally
represented during his trial. It has been said that it is doubtful
whether the review proceedings pursuant
to s 304A of the CPA will
avail an accused in such circumstances. See
S
v Klaase
, supra at
322a - c. S 304A of the CPA provides that the powers of a review
court are the same “
as
if the record thereof had been laid before him in terms of section
303
”. S 303 of
the CPA provides:
“
Transmission
of record.
The clerk of the
court in question shall within one week after the determination of a
case referred to
in
paragraph
(
a
)
of
section
302 (1)
forward to the registrar of the provincial or local division having
jurisdiction
the record of the proceedings in the case or a copy thereof certified
by such clerk, together with such remarks as the presiding
judicial
officer may wish to append thereto, and with any written statement or
argument which the person convicted may within three
days after
imposition of the sentence furnish to the clerk of the court, and
such registrar shall, as soon as possible, lay the
same in chambers
before a judge of that division for his consideration.
”
The reference in s 303 is limited
to paragraph (a) of s 302(1). There is no reference or incorporation
of the whole of s 302 or
specifically of s 302 (3) of the CPA. The
latter section provides that:
“
(3) The
provisions of
subsection
(1)
shall only apply—
with reference
to a sentence which is imposed in respect of an accused who was not
assisted by a legal adviser;…”
I am of the view that s 302(3)
does not find application in a case such as this where the matter has
been referred for review pursuant
to s 304A. The result is that the
matters which fall within the ambit of s 304A are not limited to
matters in which an accused
did not enjoy legal representation.
Rose-Innes J referred to
S
v Ferreira
1978 (4) SA
(T) and to
S v Smith
1965 (2) SA 121
(O) as support for his view that the accused who is
legally represented could not utilise the right to review pursuant to
s 304A.
[7] Both the
Ferreira
and
Smith
cases concern the rights to appeal and review, but neither of them
interpreted s 304A to be limited by the provisions of s 302(3)
the
latter which I find do not qualify the provisions of s 304A. In Du
Toit
et al
,
Commentary on the
Criminal Procedure Act
,
p30 – 16, the authors are of the view that “
In
S v Klaase 1998 (1) SACR 317 (C) the court , with reference to S v
Makhubele 1987 (2) SA 541 (T) held that
s 304A
was not applicable
when an accused was represented during his trial
.”
This statement is erroneous.
Makhubele
does not hold that the section is unavailable to an accused if such
accused was represented. Nor did Rose-Innes J base his view
on
Makhubele
.
Rose-Innes J expressed the view that an accused who is represented
cannot utilise the provisions of
s 304A
on the learned judge’s
own interpretation that
s 302(3)
of the CPA finds application. I
respectfully differ from this view. In
S
v Shamatla
2004 (2)
SACR 570
(E) at 573b-c it was said: ‘
I
agree, with respect, with the view expressed in
S
v Klaase (supra
)
that it is doubtful that the procedure provided by
s 304A
was
intended to apply to matters where accused persons were legally
represented.
’
The learned judge did not say what the basis was for his doubt other
than for his reliance on
Klaase.
As both the judges in
Klaase
and
Shamatla
expressed a doubt and no definitive findings were made, I do not
intend following either of the cases for the reasons already given
by
me i.e. that the reviewing judge’s powers pursuant to
s 304A
are not limited in any manner by the provisions of
s302(3)
of the
CPA.
S 302(3)
has not been made applicable to the provisions of
s
304A
[8] Nevertheless, and despite the
doubt expressed by Pickering J in
Shamatla
as to the reviewability of a matter when an accused enjoys legal
representation, the matter was indeed reviewed ‘
…in
the interests of justice
’.
(
Shamatla
at 573c). This accords with what was said in
Makhubele
.
Also see
S v Breakfast
1970 (2) SA 611
(E);
S
v Eli
1978 (1) SA 451
(E);
S v Taylor
1976 (4) SA 185
(T). Pickering J said at 573h - i:
‘
Accordingly,
even if the matter was incorrectly referred to this Court on special
review, the fact remains that this Court is now
aware thereof and of
the fact that a serious irregularity occurred in the proceedings. If
the irregularity which occurred in those
proceedings is of so gross a
nature that the proceedings will eventually have to be set aside,
then it would be a senseless exercise
in futility to insist that the
letter of the law be followed and that the matter be remitted to the
magistrate to enable him to
pass a sentence which in due course would
be set aside.’
[9] What
s 304A
does require is
for a magistrate or regional magistrate to form the requisite opinion
before a matter is submitted for review.
‘
Subsection
(1)
(a)
obliges a magistrate or regional magistrate to act as directed
if - and, I would venture to add, only if - he is of the opinion
that
(a)
the proceedings in which he has recorded a conviction are not in
accordance with justice, or
(b)
doubt exists whether they are. I am in agreement with the
above-quoted observation by the Attorney-General's representatives
that
the presiding officer, before he acts in terms of the section,
must have formed the requisite opinion. He is not given a licence
to
vacillate. He must apply his mind to the question whether there
has been, or reasonably possibly might have been, a failure
of
justice. If his conclusion is in the affirmative he must then record
the reasons therefore and transmit the record and reasons
for
review
.’
See
Makhubele
at 544G to H.
[10] It appears that the legal
representative of the accused applied to the regional magistrate to
submit the proceedings for review.
The regional magistrate records,
after summing up the history of the matter, that ‘
I
am of the view that the Honourable Reviewing Judge (s) entertain this
application’s submitted in terms of
s 304A
Act 51/1977 before
sentence is passed on the basis that the proceedings might not be in
accordance with justice
’.
The learned regional magistrate consequently formed his own opinion
that there was doubt whether the proceedings were in
accordance with
justice and he was enjoined to submit the matter for review.
[11] Although one is to guard
against unnecessary and piecemeal litigation (
Makhubele
at 545C-D), it has been held that where there is a failure of justice
and real and substantial prejudice to an accused, the proceedings
are
liable to interference on review. (
Makhubele
at 545A-B). Kriegler J (as he then was) said in
Makhubele
at 546B-D:
‘
I
do not wish to be misunderstood. I am not suggesting that s 304A of
the Act should be applied so sparingly that it is reduced
to a
dead letter. The intention of the lawgiver has been unequivocally
expressed and it is the bounden duty of judicial officers
to give
effect to it. The mischief at which the new section is directed is
well-known and the statutory weapon is to be used with
full vigour to
combat it. In those rare cases where continuation of a case to its
conclusion will result in injustice the provisions
of s 304A of the
Act must certainly be used.
Taylor's
case
supra
is an illustration of what the Legislature had in mind. There
evidence in mitigation established the accused's innocence and it
would have been a pointless and cruel exercise to go through the
motions of imposing sentence on an overwrought and blameless old
man
only for the conviction to be set aside later.
’
[12] The question in this matter
is whether the failure to complete the cross-examination of the state
witness falls into the category
of matters which results in a
pointless exercise of going through the motion of imposing sentence
only for the conviction to be
set aside later.
[13] This latter test has been
applied in a number of cases although sometimes worded differently.
The question to be answered is
whether the irregularity which
occurred was of so gross a nature as to vitiate the proceedings
before the magistrate (see
Shamatla
at 375I).
[14] Examples of irregularities
that vitiate proceedings are found in a number of cases but it would
suffice to refer to those given
in
Shamatla
at pp574-575. The failure to allow an accused to address a court
prior to judgment leads to such an irregularity. This is so because
of the provisions of ss 35(1) and (3) of the Constitution. In my view
an accused who is not able to cross-examine a witness due
to the
absence of that witness at a continuation of the hearing, does not
receive a fair trial in the event of the trial proceeding
in the
absence of the witness whose cross-examination was not completed.
[15] The former chief justice of the Republic of South
Africa, as a
puisne judge, said in
S
v McKenna
1998 (1)
SACR 106
(C) at 118G:
‘
The short
answer to this submission is that the right to “adduce and
challenge evidence” is not dependent upon the result.
It is a
right which is guaranteed by the Constitution which must be complied
with in all criminal trials. There is no place for
the so-called
no-difference rule under our Constitution. The right to challenge
evidence which is essential to a fair trial can
never be dependent
upon the result. Courts should not speculate on what would have been
the effect of challenging the evidence.’
This, effectively, puts paid to
an argument that the courts should consider whether cross-examination
had been substantially completed
or whether the prosecution can show
that accused has not been prejudiced.
[16] Although Khumalo J applied a
different test in
S v
Motlhabane & Others
1995 (2) SACR 528
(B) he said at 532I:
‘
The
death of a State witness during the process of cross-examination
results in the failure of the accused to exercise his right
to
challenge sufficiently the evidence of that witness. Use of
untested evidence against the accused will result in the infringement
of that right. Applying the above in the present case, I am of the
view that even though Jeannet Seoposengwe had been extensively
cross-examined before she died, it is difficult to predict what would
have happened if such cross-examination had continued.
Moreover, the witness had not been cross-examined on the question of
identification adequately. The accuseds' right to challenge
her
evidence has been adversely affected.’
[17] The right to a fair trial
encompasses fairness at every stage of the proceedings. That right
includes the right to cross-examine
witnesses. This right, in my
view, includes the right to complete the cross-examination of a
witness prior to such witness’
evidence being considered and
taken into account against an accused person. I consequently conclude
that in cases where an accused’s
right to cross-examine a
witness is curtailed for whatever reason other than the accused’s
refusal or failure to cross-examine
a witness of his own volition,
infringes on his right to a fair trial guaranteed by the
Constitution. It would not be fair to expect
of an accused to defend
himself on charges tainted by such an irregularity.
[18] Where such an irregularity
occurs, a magistrate must submit the matter for review pursuant to s
304A, whether the accused is
legally represented or not.
[19] I am satisfied that the
irregularity (failure to finalise the cross-examination of the
witness) is of such a nature that the
accused’s right to a fair
trial has been infringed. The evidence obtained in a manner that
violates any right in the Bill
of Rights must be excluded if the
admission of that evidence would render the trial unfair. There can
be no purpose whatsoever
in sending the matter back to the regional
magistrate to complete the sentence, knowing that the proceedings are
vitiated by an
irregularity of such a nature that it will necessitate
the conviction of the accused to be set aside.
[20] I find support for this view
in the thorough judgment of Moshidi J in
S
v Msimango and Another
[2009]
4 ALL SA 529
(GSJ);
2010 (1) SACR 544
(GSJ) where he said at para 26:
‘
I
have come to the conclusion that no probative value should be
attached to evidence where cross-examination of a witness was absent,
for whatever reason, including illness or death.’
When excluding the evidence of
the complainant whose cross-examination was incomplete, there remains
no case for the accused to
answer as no other evidence was lead at
the trial. It was an appropriate matter where he should have been
discharged when the State
case was closed.
[18] I requested the Deputy
Director of Public Prosecutions South Gauteng to submit his views on
the matter to me. Mr Brooderyk
SC, together with Mr Mashiane,
supplied me with helpful submissions for which I am thankful. They
too submitted that the failure
to fully cross-examine the complainant
is against the spirit of a very basic right enshrined in our
Constitution.
In the circumstances the following order is made.
The conviction of the accused is set aside.
The matter is remitted to the
magistrates’ court for a trial
de
novo
before another
magistrate.
W
L WEPENER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I agree.
P A
MEYER
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG