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[2013] ZASCA 38
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Smith v S (595/2012) [2013] ZASCA 38 (28 March 2013)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 595/2012
Not Reportable
In the matter between:
LEON SMITH
.................................................................................
APPELLANT
and
THE STATE
.................................................................................
RESPONDENT
Neutral citation:
Leon
Smith v The State
(595/2012)
[2013] ZASCA 38
(28 March 2013)
Coram:
Nugent,
Shongwe JJA, Schoeman AJA
Heard:
5 March
2013
Delivered:
28
March 2013
Summary:
Criminal
Procedure – leave to appeal against a refusal of leave to
appeal – right to a fair trial as a ground for leave
to appeal.
ORDER
On appeal from:
North
Gauteng High Court (Claassen J) sitting as court of first instance.
The appeal succeeds and the following orders are made:
(1) The order refusing leave to appeal is set aside and
replaced with an order granting the appellant leave to appeal to the
North
Gauteng High Court against his conviction and sentence on the
count of theft in addition to his conviction and sentence on the
other charges.
(2) The Registrar is directed to forward a copy of this
judgment to the Magistrate’s Commission and to the President of
the
Regional Court for Benoni.
JUDGMENT
SCHOEMAN AJA ( NUGENT AND SHONGWE JJACONCURRING)
[1] The appellant was convicted in the regional court
sitting at Benoni of one count of theft of a motor vehicle; one count
of contravening
s 8(3)
(c)
(iii) read with s 23 of the Credit
Agreements Act 75 of 1980 in that he failed to inform Bankfin of the
name and the address of
the person in whose possession the motor
vehicle was that was subjected to an instalment sale agreement; and
two counts of perjury.
He was sentenced to seven years’
imprisonment in respect of the theft; two years’ imprisonment
in respect of the contravention
of the Credit Agreements Act; and one
years’ imprisonment each on the perjury charges. It was ordered
that the other sentences
were to run concurrently with the sentence
imposed in respect of the theft charge.
[2] In terms of the provisions of
s 309B
of the
Criminal
Procedure Act 51 of 1977
the appellant applied for leave to appeal
against the convictions and the sentences imposed. The magistrate
granted leave to appeal
against all the counts except count one: the
theft of the motor vehicle. Although not expressly stated it can be
taken that the
leave was granted against both conviction and sentence
in each case. The appellant applied to the Judge President of the
North
Gauteng High Court for leave to appeal against the conviction
and sentence in respect of the count of theft in terms of the
provisions
of
s 309C
of the
Criminal Procedure Act. The
application
was refused by Claassen J in chambers in June 2006. In March 2012 he
granted leave to appeal to this court against
that refusal. The
inordinate delay does not call for comment for present purposes.
[3] Shortly before this appeal was to be heard Mr
Omar
–
who represented the appellant in the regional court and
throughout the appeal process – gave notice that this court
would
be asked to set aside the proceedings in the regional court on
the grounds that the appellant had been denied a fair trial. He
submitted that although the merits of the convictions are not the
subject of the appeal we nonetheless have inherent power to intervene
where a patent injustice comes to our attention.
[4] The inherent power to regulate this court’s
own processes derives from s 173 of the Constitution. It reads:
‘
The Constitutional Court, Supreme Court of
Appeal and High Courts have the inherent power to protect and
regulate their own process,
and to develop the common law, taking
into account the interests of justice.’
[5] The issue that is now raised before us does not
concern the mere process of this court. It is a matter that goes to
its substantive
jurisdiction. It has already been held by this court
in
S v
Khoasasa
1
that it does not have jurisdiction to entertain an
appeal from the order of a magistrate before an appeal has been
dismissed by
a high court. In that case Streicher JA said:
2
‘
Geen jurisdiksie word aan hierdie Hof
verleen om 'n appél aan te hoor teen 'n skuldigbevinding en
vonnis in 'n laer hof nie.
Dit is eers nadat 'n appél vanaf 'n
laer hof na 'n Provinsiale of 'n Plaaslike Afdeling misluk het dat 'n
beskuldigde met
die nodige verlof na hierdie Hof appél kan
aanteken.’
3
[6] It is thus not open to us at this point to consider
whether the appellant was indeed denied a fair trial, and if not,
whether
that was fatal to the convictions. Nonetheless, in my view we
are entitled to take account of the complaint that is now raised in
considering whether leave to appeal should be granted,
notwithstanding that it was not raised as a ground for appeal before
the
court below.
[7] To be successful in this appeal the appellant must
satisfy us that he has realistic prospects of success on appeal:
‘there
must, in other words, be a sound, rational basis for the
conclusion that there are prospects of success on appeal
.’
4
Two grounds are now raised upon which it was submitted
that an appeal might reasonably succeed and I deal with each in turn.
Theft was not proved
[8] The charge sheet alleges that the theft was
committed ‘on or about the period 25 May 2001 to 11 November
2002’ and
that the motor vehicle alleged to have been stolen
was at that time the property or in the lawful possession of Bankfin
and/or
Mrs Tromp.
[9] The common cause facts are that the appellant
entered into a written instalment sale agreement with Maps Cars CC
5
on 16 October 2000 in terms of which he purchased a
Toyota Hi-Lux for an amount of R101 000, payable in 53 monthly
instalments.
In terms of clause 3 of the agreement Maps Cars CC
retained ownership of the motor vehicle until the full purchase price
had been
paid. Subsequently Maps Cars CC ceded their right, title and
interest arising from the agreement to Bankfin. The appellant’s
attorney admitted on his behalf that this cession took place, but no
evidence was led as to when such cession took place.
[10] On 25 May 2001 the appellant reported to the police
at Delmas that the motor vehicle had been stolen. On 31 May 2001 a
person
was apprehended and the motor vehicle was found and returned
to the appellant. Charges against the arrested person were withdrawn
in July 2001. On 29 June 2001 the appellant again reported to the
police, on this occasion at Springs, that the motor vehicle had
been
stolen. A week later the appellant withdrew the allegation.
[11] Mr
Omar
attempted
to show during cross-examination of one Mrs Tromp, an employee of
Bankfin, that Bankfin was not the owner of the motor
vehicle at the
time it was alleged to have been stolen. The magistrate dismissed
this line of cross-examination by saying
:
‘
No no let us not argue about those
technicalities. If I say ownership put it in averted commas.’
[12] In
Hearn & Co (Pty) Ltd
v Bleiman
6
Ogilvie Thompson J discussed the passing of ownership
and stated that ownership does not pass by the ‘mere
declaration of
intention’, but by delivery. In
Barclays
Western Bank Ltd v Ernst
7
it was held that if ownership were to pass in a case
such as the present, the law required that the person who was to hold
the article
concerned on behalf of the intended new owner had to be
in control thereof, or have the right to control, when the owner of
the
article ceded his rights in respect thereof to the intended new
owner. There is in the instant matter no documentary or viva voce
evidence as to when the instalment sale agreement was ceded to
Bankfin. There is thus a reasonable possibility that another court
may find that the state failed to prove that the motor vehicle was
the property or in the lawful possession of Bankfin at the time
the
alleged theft took place.
Unfair trial
[13] Even before the present constitutional
dispensation, it has been a principle of our law that an accused
person is entitled
to a fair trial and this ‘necessarily
presupposes that the judicial officer who tries him is fair and
unbiased and conducts
the trial in accordance with those rules and
principles or the procedure which the law requires.’
8
[14] Every accused has the right to a fair trial in
terms of s 35(3) of the Constitution. What exactly that right
encompasses has
not been circumscribed. In
S v
Dzukuda ; S v Tshilo
9
it was set out as follows.
‘
It would be imprudent, even if it were
possible, in a particular case concerning the right to a fair trial,
to attempt a comprehensive
exposition thereof. In what follows, no
more is intended to be said about this particular right than is
necessary to decide the
case at hand. At the heart of the right to a
fair criminal trial and what infuses its purpose, is for justice to
be done and also
to be seen to be done. But the concept of justice
itself is a broad and protean concept. In considering what, for
purposes of this
case, lies at the heart of a fair trial in the field
of criminal justice, one should bear in mind that dignity, freedom
and equality
are the foundational values of our Constitution.’
[15]
In
S v le Grange
10
it was stressed that it is essential that a judicial
officer who presides should not ask questions during the trial in a
manner
that does not subjectively and objectively demonstrates his
impartiality:
'It must never be forgotten that an impartial judge is a fundamental
prerequisite for a fair trial. The integrity of the justice
system is
anchored in the impartiality of the judiciary. As a matter of policy
it is important that the public should have confidence
in the courts.
Upon this social order and security depend. Fairness and impartiality
must be both subjectively present and objectively
demonstrated to the
informed and reasonable observer.’
And at para 13:
'Where the offending questioning sustains the inference that in fact
the presiding judge was not open-minded, impartial, or fair
during
the trial, this court will intervene and grant appropriate relief. .
. . In such a case the court will declare the proceedings
invalid
without considering the merits.'
And at para 27:
‘
In the end the only guarantee of
impartiality on the part of the courts is conspicuous impartiality.’
[16] In
S v May
11
Lewis JA discussed the role of a presiding officer and
the effect, if any, of an irregularity:
‘
Judicial officers are not umpires. Their
role is to ensure that the parties' cases are presented fully and
fairly, and that the
truth is established. They are not required to
be passive observers of a trial; they are required to ensure fairness
and justice,
and if that requires intervention then it is fully
justifiable. It is only when prejudice is caused to an accused that
intervention
will become an irregularity.’
[17] In
S v Rall
12
Trollip AJA set out the standards expected of a
presiding officer when he or she poses questions of witnesses. The
most important
aspect is that justice must be done. But, it must also
be seen to be done:
‘
He should therefore so conduct the trial
that his open-mindedness, his impartiality and his fairness are
manifest to all those who
are concerned in the trial and its outcome,
especially the accused.’
13
Furthermore, a presiding officer should not descend into
the arena or question any witness, including the accused, ‘in a
way
that may intimidate or disconcert him or unduly influence the
quality or nature of his replies and thus affect his demeanour or
impair his credibility’.
14
[18] The transcribed record in the instant matter
reveals that the magistrate was rude to the prosecutor, the
witnesses, the appellant,
and Mr
Omar
.
She interfered with the presentation of the case, she did not accord
the officers of the court, the witnesses or the appellant
the dignity
and the respect that they are entitled to, and it is the exception
that a witness was able to testify without interjections
by the
magistrate, which were often derogatory and insulting and sometimes
nonsensical. In one instance a witness had barely been
sworn in
before the magistrate intervened, without even one question having
been posed by the prosecutor. An exchange took place
between the
magistrate and the defence under the guise of ‘saving time’,
which takes up ten pages of the record.
[19] The record is replete with abrasive and
inappropriate interventions by the magistrate and I use only the
following as examples.
I quote verbatim her words as recorded
when addressing the prosecutor:
‘
COURT:
Okay Mr . . . I know English is not your first language but you have
got to loose word lost. Because when we loose things because
it is
out of our control.
PROSECUTOR:
Lost your worship.
COURT:
Ja you loose it. You want that charge sheet to be
amended to not include the word loose or lost.
. . .
COURT:
Well let me put it to you this way. If I loose you in
the crowd I cannot be blamed for it sir.
PROSECUTOR:
Sure.
COURT:
Oh for crying …draw it threw Mr . . . . Loose
the lost in your charge sheet. The word is ridiculous. It is not part
of any
criminal law annexure. You parted with it
.’
. . .
‘
COURT:
Mr
. . . do not be ridiculous. In this world we live in where every
person is dishonest and half of us do not even have shadows
because I
think we live in the underworld do you think that a bank will be able
to exist if you do not have contact details?. .
. .’
COURT:
Yes Mr . . . did you bring your, with the greatest
deference did you bring your thoughts with you to court? Are you
nervous?
PROSECUTOR:
No
COURT:
But then please sir. Please this has been a long day
and I do not have the time. You know it is just as good as you asking
me whether
I am white. What do you think will be the answer? I do not
know Mr . . . after some of these reports. You know and I do not care
actually. Please do not ask stupid questions.’
when addressing a witness:
‘
COURT
: You
said you then called the police? Sir you know what? Please do not
indulge in verbal diarrhoea. Did you call the police yes
or no? –
It is correct so your worship’.
when addressing the appellant:
‘
HOF
: Nee,
nee, nee moenie so baie praat nie. So u bel nie die polisie nie? –Nee
edelagbare.
Hoekom nie, verstand gaan stilstaan? Nee hoekom bel u nie die polise
nie Mnr. Smit? – Edelagbare toe ek vir Cremer sê
ek soek
my voertuig terug toe sê Cremer vir my kyk hierso hy sal reel
dat Moonsamy my voertuig terugbring.
En u glo vir Cremer? – Wel hy is klaar, hy het klaar sy mond
verby gepraat so ek glo hy sal my help om die voertuig terug
te kry
Mnr. Smit die beskuldigde laat ek iets in u midde laat, u weet
naïwiteit hoort nie in 'n hofsaal nie. Dit is nie deel van
die
werklikheid nie. Volg u wat ek vir u sê? – Nee.
Mens kan net om dit sag te stel, daar is 'n punt van "stupidity"
waarop jy nie verby kan gaan nie. Dan is jy sertifiseerbaar,
verstaan
u, dan hoort u nie in hierdie saal nie. Ek sê nie u nie. Ek sê
net 'n mens moet oppas dat mens nie partykeer
verby 'n punt verby wil
gaan wat mens so wansinig onnosel is dat dit nie aanvaar kan word as
redelik moontlik waar nie –
(onhoorbaar) agbare.’
when addressing the accused’s legal
representative:
‘
COURT
: Mr
Omar please sir. I sometimes feel that you think this court either
does not read evidence does not understand evidence and
do not have a
brain. What purpose will it serve? I am just as aware as you are
there is a difference in the totals. I will deal
with that if I have
to. I can assure you.
OMAR
: As the court pleases thank you.
COURT
: I am not one of the courts that you have to spoon-feed
sir. The prosecutors are with me a long time. Please do not draw my
attention
to a contradiction if you will not get something else out
of it because I can assure you at the end of the day maybe I suffer
from
a superiority complex but I can assure you I will get more
contradictions out of the record on average than any attorney or any
prosecutor. So please you do not have to go into that. I am well
aware of that.’
[20] In my view there is indeed a reasonable prospect
that a court on appeal might find that the manner in which the trial
was conducted
denied the appellant a fair trial, and that the
irregularity was sufficient to vitiate the proceedings.
General
[21] We are not called upon to decide whether the
appellant was indeed denied a fair trial, and if so, what
consequences should
follow, and we do not do so. But whatever
conclusion a court of appeal might reach in that regard, trials
should not be conducted
as this trial was conducted, and steps ought
to be taken to avoid its recurrence. We were referred to two
instances in which the
manner in which this magistrate conducted
trials was of sufficient concern to the high court to warrant it
referring the matter
to the Magistrate’s Commission.
15
In
Ndlangamandla
Pienaar
AJ, when referring to the conduct of this particular magistrate,
said:
‘
This is a situation that cannot be allowed
to continue and thereby bring the administration of justice into
disrepute. It is clear,
to say the least, that although the presiding
magistrate had been admonished by this Court in the past, the
magistrate continues
to ignore such admonishments in a manner
contemptuous of this Court. Such contemptuous conduct cannot be
sanctioned by this Court.’
[22] We do not know whether, and if so to what effect,
any remedial steps have been taken by the Magistrate’s
Commission,
but we consider it appropriate that the present case be
brought to its attention, for it to consider taking steps to avoid a
recurrence.
We intend also bringing it to the attention of the
Regional Court President for consideration to be given to whether the
magistrate
should be hearing trials in the interim.
[23] The appeal succeeds and the following orders are
made:
The order refusing leave to appeal is set aside and
replaced with an order granting the appellant leave to appeal to the
North
Gauteng High Court against his conviction and sentence on the
count of theft in addition to his conviction and sentence on the
other charges.
The Registrar is directed to forward a copy of this
judgment to the Magistrate’s Commission and to the President
of the
Regional Court for Benoni.
_______________________
I SCHOEMAN
ACTING JUDGE OF APPEAL
APPEARANCES
FOR APPELLANT: Z
OMAR
Instructed by:
Z Omar Attorneys,
Pretoria
E G Cooper &
Majiedt Inc, Bloemfontein
FOR RESPONDENT: P W
COETZER
Instructed by:
Director of Public, Prosecutions, Pretoria
Director of Public Prosecutions, Bloemfontein.
1
S
v Khoasasa
2003 (1) SACR 123
(SCA).
2
Para
12. See, too,
S v Kriel
2012 (1) SACR 1
(SCA) para 11,
Matshona v S
[2008] 4 All SA 68
(SCA) paras 4–6.
3
Para
12.
4
S
v Smith
2012 (1) SACR 567
(SCA) para 7.
5
In
the record of the proceedings the seller of the motor vehicle is
referred to both as ‘Mayet’ and ‘Mayets’.
This is the description of the seller in the written instalment sale
agreement.
6
Hearn
& Co (Pty) Ltd v Bleiman
1950 (3) SA 617
(C) at 625B-D.
7
Barclays
Western Bank Ltd v Ernst
1988 (1) SA 243
(A).
8
S
v Tyebela
1989 (2) SA 22
(A) at 29.
9
S
v Dzukuda ; S v Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC) para 11.
10
S
v Le Grange
[2008] ZASCA 102
;
2009 (1) SACR 125
(SCA) para 21.
11
S
v May
2005 (2) SACR 331
(SCA) paras 28-29.
12
S
v Rall
1982 (1) SA 828
(A) at 832A—833A.
13
At
831H-832A.
14
At
832F—G.
15
T
Ndlangamandla v State
(Unreported
judgment of the North Gauteng High Court, Pretoria, Appeal number
A857/2009 delivered on 14 July 2010);
State
v Phiri
[2007] ZAGPHC 337
;
2008 (2) SACR 21
(T).