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[2010] ZAGPJHC 157
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S v Molawa; S v Mpengesi (A388/2009, A421/2009) [2010] ZAGPJHC 157; 2011 (1) SACR 350 (GSJ) (25 May 2010)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
High Court Ref No: 234/09
Magistrate’s Serial No: 03/2009
Review Case No: A388/2009
and
High Court Ref No: 235/09
Magistrate’s Serial No: 04/2009
Review
Case No: A421
/2009
DATE: 25
May 2010
Magistrate
RANDFONTEIN
THE STATE v
ISAAC LUNGILE VENDA MOLAWA and
BONGANI WISEMAN MPENGESI
REVIEW JUDGMENT
MOSHIDI, J
:
INTRODUCTION
[1] The two
matters discussed in this ju
dgment
were placed before me on automatic review in terms of sec 302(1) of
the Criminal Procedure Act 51 of 1977.
[2] In both
matters, adjudicated on by the same magistrate, Mr C L Mqalo (the
trial magistrate) in the Randfontein Magistrate’s
Court, no
reasons at all were furnished for the convictions and sentences at
the end of the respective trials. The reviews therefore
concern the
failure of the trial magistrate to furnish reasons for judgment as
described above.
[3] It is,
for practical reasons, convenient to deal with both cases
simultaneously. I also set out the facts of each case separately.
THE FACTS IN THE CASE OF THE STATE v L V MOLAWA,
CASE NO A388/2009 (THE
MOLAWA
MATTER
)
[4] The
accused was charged with robbery, read with the provisions of
section
s
51(2), 52(2), 52A and 52B of the
Criminal Law Amendment Act 105 of
1997
. The State alleged that on 20 June 2008, at Mathanzima Street,
Mohlakeng in the district of Randfontein, the accused robbed
Boitumelo
Morane (the complainant) of a Nokia cellphone valued at
R800,00. The accused, who elected to conduct his own defence, pleaded
not
guilty. The complainant testified and was cross-examined by the
accused. At the end of the State’s case the accused testified
in his own defence and also called as a witness, his mother. However,
she could not advance the version of the accused in any way.
Thereafter both the prosecutor and the accused addressed the court on
the merits of the case. The trial magistrate, thereafter
quite
uncharacteristically, simply pronounced as follows: “
Found
guilty as charged
”.
No reasons whatsoever were given for the basis of the verdict. The
matter was postponed for defence witnesses in mitigation
of sentence.
On the next court appearance, the accused called two witnesses.
However, both these witnesses virtually had nothing
to say. In fact,
it is not entirely clear what transpired since the record is
critically shorthanded. Suffice to say that both
witnesses could not
advance the accused’s case. Little wonder that there was no
cross-examination of these witnesses. Thereafter,
and once more,
strangely, the record reflects as follows:
“
Appeal
and Review right explained. Accused understood. See J 15 for
sentence.
”
Indeed, the J15 records:
“
To
undergo twelve (12) months imprisonment.
Section 103
of Act 60 of
2000 – unfit to possess firearm.
”
Once more, no
reasons at all were furnished for the sentence imposed.
THE FACTS IN THE CASE OF
BONGANI
W MPENGESI, CASE NO A421/2009 (THE
MPENGESI
MATTER
)
[5]
The
trial magistrate virtually followed the same pattern as in the
previous case. The accused was charged with assault with intent
to
do grievous bodily harm. The State alleged that on 25 July 2009, at
Mohlakeng, Randfontein, the accused assaulted Berman Dibetso
by
stabbing him with a knife/panga/bush knife. As in the previous
matter, the accused elected to conduct his own defence. He
pleaded
not guilty and tendered a statement in terms of
sec 115(1)
of the
Criminal Procedure Act 51 of 1977
. The complainant testified and was
cross-examined by the accused. Two other witnesses also gave
evidence for the prosecution.
They were also cross-examined by the
accused. Thereafter the accused testified as the only witness for
the defence. The accused
was cross-examined. Both the public
prosecutor and the accused addressed the court. Thereafter, as in
the previous matter, the
trial magistrate summarily pronounced:
“
Found
guilty as charged
”.
No reasons were given at all. The accused testified in mitigation
of sentence, whereafter both the accused and the public
prosecutor
addressed the court on sentence. Thereafter the record reflects the
following:
“
BY
COURT:
Appeal and
Review right explained and understood. See J 15 for sentence.
”
The J15 reflects the sentence imposed as follows:
“
To
undergo six (6) months imprisonment.
Section 103
Act 6 of 2000 –
Unfit to possess firearm.
”
Once more, no reasons were furnished for the sentence imposed.
[6] On
perusal of the record of the proceedings, I naturally requested the
trial magistrate to supply the reasons for judgment
on conviction and
sentence in both matters. In due course, and in respect of the
Molawa
matter, the trial magistrate furnished the following reasons:
“
AD
CONVICTION
Both complainant and accused are known to each other. They stay in
the same street. They school together. The complainant only
identified accused as he is well known to her. The other person got
away. Accused hit the complainant on her mouth with a bottle
and
took the cell phone. The cell phone was in her pocket. The accused
version was rejected by court as false. He denied robbing
complainant but failed to tell the police about the alleged robbery
by his friend. This was an after thought by accused. Was it
a
coincident that his version is not far from that of the complainant?
The court thus did not believe his story and convicted him
as
charged.
AD SENTENCE
This is
robbery. A serious offence. A bottle was used to hit a woman on her
mouth. She was injured. She was pick pocketed, her cell
phone. This
aggravated the whole thing. The sentence passed by the court was
fair, just and appropriate. It fitted the offence
the accused charged
with. It is not shocking.
”
[7] In
respect of the
Mpengesi
matter, the trial magistrate furnished the following reasons:
“
AD
CONVICTION
Accused had
just quarrelled and assaulted his girlfriend, who is the daughter to
the complainant. Accused had a child with the
girlfriend. The
accused went to the complainant’s house. The complainant was
seated peacefully with his family watching
television. Accused came
in and took his child at night by force. Complainant reprimanded
him. Accused left with the child by
force. Complainant followed
accused with the intent to take the child from him. Accused then
assaulted the complainant, an old
man with a panga. He assaulted him
several times. He was injured. He did so even when Seun tried to
intervene. This show accused
intended to injure the complainant.
Accused stopped assaulting only when Seun dispossessed him of the
panga. Accused version that
he was attacked by the complainant was
rej
ected
by court as false. Court believed complainant’s version which
is supported by two other witnesses as per evidence before
court. He
showed no respect for the complainant and in fact he undermined the
complainant. The court thus convicted him.
AD SENTENCE
The
sentence passed by the court was just, fair and appropriate. It
fitted the offence accused was charged for. It was not shocking.
”
[8] There was
surprisingly no explanation tendered for the absence or omission of
the reasons for judgment in the first place.
The handwritten notes of
the trial magistrate, which accompanied the original charge sheet and
the proceedings, similarly contain
no judgment or reasons for the
convictions and sentences imposed. It is therefore not unreasonable
to infer that the reasons for
judgment supplied later were complied
subsequent to the request of this Court. Hence the wording: “
It
is not shocking
”,
at the end of the paras dealing with the reasons for sentence in each
case.
[9] The trial
in the
Molawa
matter commenced on 28 August 2009, and was completed on 21 September
2009 after a single postponement in between. On the other
hand, the
trial in the
Mpengesi
matter commenced on 18 September 2009. On the latter date, the
matter became part-heard and postponed to 30 September 2009 for
the
continuation of the State’s case. The trial was finalised on
30 September 2009.
[10] Prior to
finalising this matter, and as it is customary in this Division, I
soli
cited
the comment of the Director of Public Prosecutions, Johannesburg.
The comment, which arrived timeously, is extremely helpful,
for which
I am grateful. It is part of the recommendation of the Director of
Public Prosecutions that the convictions and sentences
be confirmed.
I respectfully agree with this recommendation. The reasons
subsequently furnished by the trial magistrate, although
brief,
especially in regard to the judgment on sentence, nevertheless enable
this Court to confirm the convictions and sentences.
The proceedings
before the trial court, save for the initial neglect to furnish
reasons for judgments, which I deal with hereunder,
appear otherwise
to have been in accordance with justice.
[11] I deal
with the issue of the failure of the trial magistrate to furnish
reasons at the time of the respective judgments. The
Director of
Public Prosecutions agrees that the failure of the trial magistrate
to supply full reasons at the time of the judgment,
is unacceptable
practice. To this end, the second recommendation of the Director of
Public Prosecutions is that the matters be
referred back to the trial
magistrate for him to furnish comprehensive judgments and full
reasons for the convictions and sentences.
After careful
consideration of the matter, however, I have decided against this
recommendation for several practical reasons,
one of which is the
likelihood of further systemic delays in finalising matters of this
nature. I prefer rather to deal with what
seems to be a growing
practice of trial magistrates in criminal matters not to furnish
reasons for judgment, for whatever reason.
This practice frequently
occurs in reviews, appeals, and even petitions which come before this
High Court.
[12] With
regard to high courts,
sec 146
of the
Criminal Procedure Act 51 of
1977
provides:
“
A
judge presiding at a criminal trial in a superior court shall –
where he
decides any question of law, including any question under paragraph
(c) of the proviso to
section 145(4)
whether any matter constitutes
a question of law or a question of fact, give reasons for his
decision;
whether he
sits with or without assessors, give the reasons for the decision or
finding of the court upon any question of fact;
where he
sits with assessors, give the reasons for the decision or finding of
the court upon the question referred in paragraph
(b) of the proviso
to
section 145(4)
;
where he
sits with assessors and there is a difference of opinion upon any
question of fact or upon the question referred to in
paragraph (b)
of the proviso to
section 145(4)
, give
the reasons for the decision or finding of the member of the court
who is in the minority or, where the presiding judge sits
with only
one assessor of such assessor.
”
It is the view
of the Director of Public Prosecutions, with which I respectfully
agree, that in spite of its reference to superior
courts, the
principle contained in the above quoted sec, should apply equally to
the magistrates’ courts. This, on the basis
of the provisions
of
sec 93
ter
(3) of the
Magistrates’ Courts Act 32 of 1944
.
Sec 93
ter
of the latter Act provides for the assistance of magistrates by
assessors, while sec 93
ter
(3)(d) provides that:
“
Upon
all matters of fact the decision or finding of the majority of the
members of the court shall be the decision or finding of
the court,
except when only one assessor sits with the presiding judicial
officer in which case the decision or finding of such
judicial
officer shall be the decision or finding of the court if there is a
difference of opinion.
”
The relevant
sec is sec
93
ter
(3)(e) of the
Magistrates’ Courts Act, which
provides:
“
It
shall be incumbent on the court to give reasons for its decision or
finding on any matter made under paragraph (d).
”
The word
“
incumbent
”
in the above sec suggests that it is indeed the duty or
responsibility of the magistrate to give the reasons. It is
interesting
that under
sec 1
of the
Magistrates’ Courts Act 32
of 1944
, it is said:
“
’
Judgment’.
When used in its general sense, the word comprises both the reasons
for judgment and the judgment or order; when
used in its technical
sense, it is the equivalent of an order.
”
See
Administrator, Cape
and Another v Ntshwaquela and Others
1990
(1) SA 705
(A) 714I-715F.
[12]
The
authors Du Toit
et
al
in
Commentary
on the
Criminal Procedure Act –
Service
41, [2008], p 21-10A, support the view that all the important
findings of fact should be contained in the judgment given at the
conclusion of the trial, and that the same should apply in the
magistrates’ courts in terms of
sec 93
ter
(3)(e) of the
Magistrates’ Courts Act 32 of 1944
, quoted above.
It is therefore not a question of the magistrate furnishing reasons
in a criminal trial when requested to do so
by the reviewing Judge,
but at the conclusion of the trial. Review proceedings certainly
play an essential part in the criminal
justice system. The reviewing
court in adjudicating whether the proceedings in the lower court were
in accordance with justice,
is not confined to the four corners of
the record, as in the case of appeals, but also to issues not
appearing on the record. The
neglect by trial magistrates to furnish
reasons for judgment at the conclusion of a trial will effectively
frustrate this important
judicial function. In
Rex
v Van der Walt
1952 (4) SA 382
(A), the appellant was tried by a Judge and assessors
on a charge of murder. The appellant was convicted and sentenced.
The trial
Judge gave no judgment beyond an announcement that the
Court found the accused guilty as charged. In allowing the appeal,
the
Appeal Court at p 38C-D said:
“
It
is not open to question that these important findings ought to have
appeared in a judgment of the whole Court
given
at the time when the appellant was convicted
,
and not for the first time in a judgment of the trial Judge alone,
given nearly a month after the conviction, on an application
for
leave to appeal.
”
(my underlining)
The failure to
give judgment at the conclusion of the trial was found not to be in
accordance with what was laid down by the then
appellate division in
Rex
v Majerero and Others
1948
(3) SA 1032
(A), as being “
the
invariable practice and clearly in the interests of justice
”.
[13] More
recently, in
S
v Calitz en ‘n Ander
2003 (1) SACR 116
(SCA), the appellants pleaded guilty in the
magistrate’s court. The magistrate imposed sentence but his
reasons for sentence
did not appear from the record. In response to
the notice of appeal, the magistrate requested that his ‘
ex
tempore judgment’
be
regarded as reasons for the purposes of appeal. It was held,
inter
alia
,
“
that
it had to be emphasised that the proper protection, on the one hand,
of the appellant’s constitutional right to an appeal
and, on
the other hand, the community’s interests that offenders be
properly punished, required of a judicial officer that
thorough
attention be paid to the formulation and furnishing of reasons for
sentence. Without it sound criminal justice was hampered.
”
In the context of the present matter, the failure of the trial
magistrate to furnish reasons for both the convictions and
sentences,
falls squarely within this admonition.
[14] There is
indeed a further compelling reason why reasons for judgment ought to
be furnished. The right to appeal or review
is entrenched
constitutionally to every accused person. In this regard sec 35(3)(o)
of the Constitution of the Republic of South
Africa Act 108 of 1996
provides as follows:
“
(3)
Every accused person has a right to a fair trial, which includes the
right –
of appeal
to, or review by, a high court.
”
These are
certainly important rights that should not be overlooked. Similarly,
and as stated earlier, the institution of review
proceedings,
particularly automatic reviews, plays an important function in view
of the many unrepresented accused persons who
appear in the lower
courts. The accused persons in the present matters had no legal
representation. They faced serious charges.
[15] The
origin and purpose of the provisions of sec 302(3)(a) of the Criminal
Procedure Act 51 of 1977 (a sentence which is imposed
in respect of
an accused who was not assisted by a legal adviser) were succinctly
set out by Msimang J, (as he then was), in
S
v Zwane
2004 (2) SACR 291
(N) at 294c-g, as follows:
“
In
the ensuing legislation the sentiment expressed in the said passage
was enacted into law in the form of the provisions of
s 302(3)(a)
of
the
Criminal Procedure Act, thus
removing the system of automatic
review from the benefit of the State and making it available solely
for the benefit of the convicted
person who had been unrepresented
during his trial. It must accordingly follow that where, in terms of
the provisions of
s 304(1)
of the
Criminal Procedure Act, it
must
appear to a reviewing Judge ‘that the proceedings are in
accordance with justice’, what is meant is that those
proceedings must be in accordance with real and substantial justice
insofar as the interests of that convicted person are concerned.
In
my view, therefore, the system must always be utilised in favour of
those interests. In S v Madonda
1979 (3) SA 795
(Tk) the automatic
review in the ordinary course was being sought in the proceedings in
which the accused had been wrongly acquitted.
In declining to
exercise such jurisdiction the Court made the following remarks:
‘The purpose of review in the ordinary
course is to afford a
safeguard against unjust convictions or sentences. It serves to
protect accused persons from injustice due
to errors or
irregularities which may occur in the trial of the more serious cases
heard by the lower courts. It was not intended
that this court
should on review correct mistakes which may occur in the lower courts
but which do not result in the conviction
or sentence of the accused,
nor is this court disposed to embark upon such a task which is not
authorised by the Act.’
”
[16] From the
above, it follows logically that if a trial court does not furnish
reasons for its findings, in the form of a reasoned
judgment, the
reviewing Judge would be disadvantaged in applying the test as to
whether the proceedings were in accordance with
justice. The
reviewing Judge would be compelled to call for such reasons, as I was
indeed constrained to do in the present matters.
In addition, in
discharging its function on review judiciously, the reviewing Judge
must have regard to the factual and credibility
findings made by the
trial court with all the advantages it had during a trial. In this
regard, it is trite law that an appellate
court will not readily
interfere with such findings. See
S
v Robinson and Others
1968 (1) SA 666
(A), and
S
v Bailey
2007 (2) SACR 1
(C). The failure by the trial court to make such
findings and to furnish reasons for its judgment, will, once more,
hamper the
reviewing Judge in adjudicating properly in review
proceedings. See
S
v Franzenburg and Others
2004
(1) SACR 182
(E). Indeed, in
S
v Van der Berg and Another
2009 (1) SACR 661
at 665h-j, the court said:
“
The
failure of the magistrate to give any reasons for his decision in the
trial-within-a-trial, or to make any findings relating
to the
credibility of the witnesses, places this appeal court at a distinct
disadvantage. The magistrate had the opportunity of
observing all
the witnesses and their demeanour when giving evidence. Demeanour is
an important factor in weighing up the credibility
of a witness. In
the present case we do not know which witnesses the magistrate
accepted as truthful, or why he did so. We also
do not know on what
facts he based his decision in the trial-within-a-trial
.”
[17] Indeed the words of Corbett CJ (as he then was) published in
the SALJ, Vol 115, (1998) p 117, remain apposite and instructive:
“
As
a general rule, a court which delivers a final judgment is obliged to
give reasons for its decision. This applies to both civil
and
criminal cases. In civil matters this is not a statutory rule but one
of practice. In Botes and Another v Nedbank Ltd the
Appellate
Division held that where a matter is opposed and the issues have been
argued, litigants are entitled to be informed of
the reasons for the
judge’s decision. The court pointed out that a reasoned
judgment may well discourage an appeal by the
loser; and the failure
to state reasons may have the opposite effect, that is, encourage an
ill-founded appeal. In addition,
should the matter be taken on
appeal, the court of appeal has a similar interest in knowing why the
judge who heard the matter
made the order which he did. But there
are broader considerations as well. In my view, it is in the
interests of open and proper
administration of justice that the
courts state publicly the reasons for their decisions. Whether or
not members of the general
public are interested in a particular case
– and quite often they are – a statement of reasons gives
some assurance
that the court gave due consideration to the matter
and did not act arbitrarily. This is important in the maintenance of
public
confidence in the administration of justice. The same general
rule of practice applied in criminal matters, both in regard to
verdict and in regard to sentence. In regard to the former Davis AJA
stated:
‘
We
are aware that there is no provision in the
Criminal
Procedure Code for the delivery of a judgment when a judge sits alone
or with assessors; but in practice such a judgment
is invariably
given and we wish now to say that it is clearly in the interest of
justice that it should be given.’
After pointing to the absence of reasons in the case before the
court, Davis AJA continued:
‘…
we
feel that it is unfortunate that the court should have been left, as
it has been, to a considerable extent in the same position
as if a
verdict of guilty had been returned by a jury.’
”
The complete
citation of
Botes
and Another
v
Nedbank Ltd
is
1983 (3) SA 27
(A). See also
RAF
v Maruga
[2003] 2 All SA 148
(SCA), and
S
v Immelman
1978 (3) SA 726
(A). Subsequent to
S
v Calitz en ‘n Ander
(
supra
),
the Supreme Court of Appeal, in at least one other judgment,
emphasised the need for trial Courts to furnish reasons for judgment.
In
Mocke
v The State
[2008] ZASCA 80
;
[2008] 4 All SA 330
(SCA), the appellant stood trial on a murder
charge in the magistrate’s court. Without providing any
reasons, the magistrate
rejected the appellant’s version and
accepted the evidence of the state witnesses. The evidence of the
State was based on
that of a single witness who was also implicated
by the appellant in the murder. The appellant was convicted and
sentenced to
7 years’ imprisonment. The appellant appealed
against the conviction and sentence. In criticising the magistrate’s
failure to furnish reasons for judgment, the Appeal Court, quoted
with approval the
dictum
by De Villiers, JP, in
Schoonwinkel
v Swart’s Trustee
1911
(TPD) 397 at 401:
“
This
Court, as a court of appeal, expects the court below not only to give
its findings on the facts, but also its reasons for those
findings.
It is not sufficient for a magistrate to say, “I believe this
witness, and I did not believe that witness”.
The court of
appeal expects the magistrate, when he finds that he cannot believe a
witness, to state his reasons why he does not
believe him. If the
reasons are, because of inherent improbabilities, or because of
contradictions in the evidence of the witness,
or because of his
being contradicted by more trustworthy witnesses, the court expects
the magistrate to say so. If the reason
is the demeanour of the
witness, the court expects the magistrate to say that; and
particularly in the latter case the court will
not lightly upset the
magistrate’s finding on such a point.
”
The Appeal
Court was of the view that although the
dictum
was intended for a civil case, it is equally applicable to a criminal
case. Indeed, the Constitutional Court in
Strategic
Liquor Services v Mvumbi NO
2010 (2) SA 92
(CC), had the occasion to deal with a labour matter in
which the Labour Court, despite repeated requests, failed to furnish
reasons
for its decision. At paras [15] to [17], of the judgment,
the Constitutional Court states:
“
[15]
It is elementary that litigants are ordinarily entitled to reasons
for a judicial decision following upon a hearing, and,
when a
judgment is appealed, written reasons are indispensable. Failure to
supply them will usually be a grave lapse of duty,
a breach of
litigants’ rights, and an impediment to the appeal process. In
Botes and Another v Nedbank Ltd, Corbett JA pointed
out that ‘a
reasoned judgment may well discourage an appeal by the loser’:
‘The failure to state reasons may
have the opposite effect. In
addition, should the matter be taken on appeal, as happened in this
case, the Court of Appeal has
a similar interest in knowing why the
Judge who heard the matter made the order which he did.’
[16] That
the Labour Appeal Court considered the employer’s application
for leave to appeal without requiring Nel AJ to supply
reasons, and
without in their absence furnishing its own, is most regrettable.
The application before that court gave to it the
opportunity that Nel
AJ let slip through his fingers, namely to give the employer reasons
for its failed attempt to review the
CCMA outcome.
[17] In
Mphahlele this court noted that there is no express constitutional
provision requiring judges to furnish reasons for their
decisions
(and on this basis upheld the long-standing practice of the Supreme
Court of Appeal not to furnish reasons when determining
applications
for leave to appeal). We add that there is likewise no express
statutory provision requiring judges who have given
judgment ex
tempore to furnish written reasons when later required. Nonetheless,
as this court pointed out in Mphahlele, a reasoned
judgment is
indispensable to the appeal process. Judges ordinarily account for
their decision by giving reasons – and the
rule of law requires
that they should not act arbitrarily and that they be accountable.
Furnishing reasons –
‘
explains
to the parties, and to the public at large which has an interest in
courts being open and transparent, why a case is decided
as it is. It
is a discipline which curbs arbitrary judicial decisions. Then, too,
it is essential for the appeal process, enabling
the losing party to
take an informed decision as to whether or not to appeal or, where
necessary, seek leave to appeal. It assists
the appeal Court to
decide whether or not the order of the lower court is correct. And
finally, it provides guidance to the public
in respect of similar
matters.’
”
It is further
noteworthy that the Constitutional Court went on to express rather
strong words against the failure of courts to furnish
reasons for
judgment. It mentions that in
Mphahlele
v First National Bank of South Africa Ltd
[1999] ZACC 1
;
1999 (2) SA 667
(CC), the court “
added
that it may well be that where a decision is subject to appeal it
would ordinarily be a violation of the constitutional right
of access
to courts, if reasons were to be withheld by a judicial officer
”.
With reference to sec 34 of the Constitution, the Court is of the
view that the failure of the judicial officer concerned
to furnish
his reasons, when requested for the appeal process, cuts right across
the employer’s right of access to courts.
[18] All of
the above, undoubtedly highlight the critical importance of the
reasons for judgment and credibility findings of a
trial court.
These play a critical role in
the
adjudication of appeals and reviews.
THE
PROMOTION OF ADMINISTRATIVE JUSTICE ACT 3 OF 2000
[19]
It is rather interesting that, although courts, and judicial
officers on the one hand, and their functions and decisions, on the
other hand, are neither “
organs
of state
”,
nor “
administrative
action
”,
respectively, under the Promotion of Administrative Justice Act 3 of
2000, (PAJA), the meritorious
rationale
for the furnishing of reasons for administrative action by organs of
state, seems highly attractive. In terms of sec 1 of PAJA:
“
Administrative
action
”,
“
means
any decision taken, or any failure to take a decision, by –
an organ of state, when –
exercising a power in terms of the Constitution or a provincial
constitution; or
exercising a public power or performing a public function in
terms of any legislation; or
a natural
or juristic person, other than an organ of state, when exercising a
public power or performing a public function in
terms of an
empowering provision, which adversely affects the rights of any
person and which has a direct, external legal effect,
but does not
include –
[not applicable]
[not applicable]
[not applicable]
[not applicable]
the
judicial functions of a judicial officer of a court
referred
to in section 166 of the Constitution or of a Special Tribunal
established under section 2 of the Special Investigating
Units and
Special Tribunals Act, 1996 (Act No 74 of 1996), and the judicial
functions of a traditional leader under customary
law or any other
law.
”
PAJA further
defines “
organ
of state
”
as “
bears
the meaning assigned to it in section 239 of the Constitution
”.
In turn, the latter sec defines an “
organ
of state
”
as:
“
(a)
any department of state or administration in the national,
provincial or local sphere of government; or
(b)
any
other functionary or institution –
exercising
a power or performing a function in terms of the Constitution or a
provincial constitution; or
(ii)
exercising a public power or performing a public function in terms
of any legislation, but does not include a court or a judicial
officer.
”
The learned
author, J R de Ville, in “
Judicial
Review of Administrative Action in South Africa
”,
[2003], in Chapter 6, states:
“
Firstly,
giving reasons is one of the fundamentals of good administration. It
encourages rational and structured decision-making
and minimises
arbitrariness and bias. A decision-maker who knows that she has to
defend or justify his/her decision with reasons
is in other words
less likely to act arbitrarily or mechanically. It compels him/her to
properly consider the relevant statutory
provisions, the grounds for
taking the decision, the purpose thereof, all relevant evidence and
circumstances including the specific
circumstances of the matter at
hand, and the policy to be implemented. Secondly, it encourages open
administration. Such openness
is conducive to public confidence in
the administrative decision-making process. Thirdly, it satisfies
the desire on the part
of an individual to know why a decision was
reached and contributes towards a sense of fairness – a person
adversely affected
by a decision knows that his/her case has at least
been considered by the administration. Fourthly, if a person is
furnished with
reasons, it makes it easier for that person to appeal
against the decision (if provided for in the statute concerned) or to
make
an application for review as s/he knows what the basis for the
decision was. It also assists a court in reviewing administrative
action. Lastly, the furnishing of reasons serves an educational
purpose. If an adverse decision was taken in, for example, an
obligation for a licence, the person concerned may in future
instances be able to improve the quality of the application.
”
Indeed, the
entire conspectus of the
rationale
to furnish reasons in the above quotation, accords with what Corbett
CJ, (as he then was), said
supra
.
In the context of the present matter, it makes perfect sense to
adopt unreservedly, the
rationale
for furnishing reasons as prescribed for administrative action by
state organs under PAJA. The criminal justice system, in particular,
the review process, can only benefit therefrom, and achieve the
ideals of a fair trial as envisaged in sec 35(3) of the Constitution.
FOREIGN JURISDICTION
[20] Dealing
with statutory bodies and administrative action, I need to refer
briefly to
R
v Civil Service Appeal Board, Ex Parte Cunningham
[1991] 4 All ER 310.
The appellant, a prison officer, was dismissed
from the prison service after he allegedly assaulted a prisoner. He
appealed against
his dismissal to the Civil Service Appeal Board,
which held that his dismissal was unfair and recommended that he be
reinstated.
The Home Office, as it was entitled to do, refused to
reinstate him and the board then assessed the compensation for unfair
dismissal.
The board refused to give reasons for its award on the
ground that it employed simple and informal procedures and that to
ensure
a non-legalistic approach to the merits of each individual
case it had adopted a policy of not giving reasons for any award.
The
applicant applied for judicial review of the board’s
decision on the grounds that the award was
prima
facie
irrational and the board’s refusal to give reasons was a breach
of natural justice. The Judge granted the application because
of the
board’s failure to give reasons. The board appealed. The
applicant cross-appealed from the Judge’s finding that
the
award was not
prima
facie
irrational.
In dismissing the appeal, the Court held,
inter
alia
,
that:
“
There
are three possible reasons for holding that the board should have
given reasons for their award. The first is that there is
a general
rule of the common law or, if that be different, a principle of
natural justice that a public law authority should always
or even
usually give reasons for its decisions … The second is that a
tribunal exercising a jurisdiction which mirrors
that of the
industrial tribunals which are required to give reasons and further
or alternatively a tribunal which is exercising
a judicial function
from which there is no appeal should give sufficient reasons to
enable a party to know why he has failed to
secure any or, as the
case may be, all of the relief which he sought and above all to be
satisfied that the decision was lawful.
… The third is that
Mr Cunningham and others who resort to the board have a legitimate
expectation that it will give reasons.
This, as I have shown, the
Judge accepted.
”
In
Halsbury’s
Laws
,
4
th
ed (2001) Re-Issue, Vol 1(1), 2001, para 112, under the heading “
The
Duty to give Reasons
”,
it is said:
“
A
duty to give reasons can arise under statute or under European Union
Law. Such a duty can be either express or implied. …
The
statement of reasons for the decision must be taken to form part of
the decision and to be incorporated into the record.
The reasons
given in pursuance of any such obligation must be full and
sufficient, intelligible, and must deal with the substantial
points
which are at issue. Parties to the proceedings and the courts should
be able to see what matters have been taken into consideration
and
what view has been formed by the tribunal or minister on the points
of fact and law which arise.
”
Indeed
,
the relevance of the above informative authorities to the matter
under discussion, cannot be overemphasised.
CONCLUSION
[21] To sum
up. F
rom
all the above, the trial magistrate ought to have given fully
reasoned judgments in both the cases at the time of the conclusion
of
the respective trials. He had a duty to do so. He should not have
waited to do so until asked by the reviewing Judge. I have
scrutinised both the typed record of the proceedings as well as the
trial magistrate’s handwritten notes taken contemporaneously.
There is no judgment or reasons except as indicated above. It is
indeed bothersome that the
Molawa
matter was completed on 21 September 2009, while the
Mpengesi
matter was finalised on 30 September 2009. This suggests to me that
the trial magistrate was in the habit of passing judgments
without
furnishing reasons therefor. This kind of pattern must be
investigated urgently by the Chief Magistrate of the area concerned,
alternatively, by the Magistrates’ Commission. As stated
earlier, the convictions and sentences were in accordance with
justice and call to be confirmed. It will not be in the interest of
justice to remit the matters to the trial magistrate for him
to
expand on his judgments.
ORDER
[22] In the result I make the following order:
(1) The
conviction and sentence in the matter of
S
v I L V Molawa
(Case No A388) are hereby confirmed.
(2) The
conviction and sentence in the matter of
S
v B W Mpengesi
(Case No A421/2009) are hereby confirmed.
(3)
The
Registrar of this Court is ordered to forward a copy of this judgment
to the Chief Magistrate, Randfontein, Private Bag X13,
Randfontein,
1760, for attention.
_____________________________
D
S S MOSHIDI
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
I concur:
_____________________________________
N
PANDYA
ACTING JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG