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[2010] ZAWCHC 501
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S v Abanobi and Another (101061) [2010] ZAWCHC 501 (18 October 2010)
IN
THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
THE
STATE V ERNEST ABANOBI & 1 OTHER
High
Court Ref no:
101061
Magistrate
Case no:
B1389/09
Magistrate
Serial no:
29/10
REVIEW
JUDGMENT DELIVERED THIS 18
th
DAY OF OCTOBER 2010
RILEY
AJ,
The
accused Ernest Abanobi, a 27 year old male person and Uchenna Okoro,
a 32 year old male person, were convicted by the magistrate
at
Goodwood on 9 July 2010 of contravening the provisions of
section
22A(5)(a)
of the
Medicines and Related Substances Act 101 of 1965
.
On 16 July 2010 they were sentenced to 8 years and 7 years
imprisonment, respectively, of which 3 years were suspended for a
period of 5 years on condition that the accused are not again
convicted of contravening
s22A(5)
of the
Medicines and Related
Substances Act 101 of 1965
and section 5(a) or (b) of the Drugs &
Drug Trafficking Act, 140 of 1992, committed during the period of
suspension. Both the
accused are Nigerian nationals.
According
to the annexure to the charge sheet it is alleged that on 10 June
2009 and at or near Forest Drive Extension, Pinelands,
within the
magisterial district of Goodwood, the accused unlawfully and
intentionally dealt in
Schedule
2 drugs, to wit, antihistamine which contains Diphnylhydramine to a
member of the public without the necessary authority
to do so.
When
the matter came on review the magistrate was requested to respond
to
the following query by Yekiso J:
|
"I
note in the trial of this matter, Mr B C Simeon who appears to be
EBO/IBO speaking, was used to interpret for the accused.
In the light
thereof, could you kindly advise as follows:
a)
If Mr Simeon is in the full employ of the Department of Justice and
Constitutional Development as a court interpreter.
b)
If not fully employed by the Department as a court interpreter,
whether he was duly sworn in, prior to the commencement of the
proceedings, to interpret for the accused.
c)
Whether the court did make an assessment and satisfied itself with
regards to the proficiency to interpret from the English language
to
EBO/IBO and vice versa."
The
magistrate responded as follows:
"I
am currently sitting as Magistrate in the Civil Court Goodwood. The
Magistrate of B Court Goodwood was on leave for 3 weeks
and there was
a serious of shortage of Magistrates. The head of office Mrs.Xhallie
started this Court in the mornings and on finalizing
of my roll in
the Civil Court I would take over B Court and finalize all
outstanding cases. This placed an enormous burden and
case load on
me. During these three weeks I did various matters involving Ebo
speaking accused. In all these matters Mr Simeon
was the interpreter
in Court.
I
have now made the necessary enquiries from the administration staff
at Goodwood Court and was informed by Mr A.Ntsingane, head
of the
interpreters of the following as regards to The Honourable Judges
remarks;
a)
Mr Simeon is not in the full employ of the Department of Justice and
constitutional Development as a court interpreter.
b)
He was not duly sworn in as interpreter by the Magistrate separately
before commencement of the trial.
c)
No assessment was made regarding his proficiency to interpret the Ebo
language.
I
would like to elaborate as regards to what transpired in Court. As
indicated I just assisted in B Court for 3 weeks. As indicated
above
Mr Simeon was the interpreter in all matters where Accused was Ebo
speaking. I accepted that he was an official Court interpreter.
I saw
on the charge sheet that he appeared as the interpreter on previous
occasions with no indication of compliance with rule
68(3). I cannot
remember seeing any charge sheet in that period where he was sworn in
as interpreter. I concede in hind sight that
this assumption was
incon-ect and that I should have made the necessary enquiries before
proceeding. I also concede that I did
not comply with the
requirements
of
swearing n the interpreter in terms of rule 68(3) of the Magistrates
Court Rules and the current case law regarding the enquiry
of
proficiency. I am aware of the finding that this High Court made in S
vs. Mpondo 2007(2) SACR 245 (C). I would however respectfully
request
The Honourable Reviewing Judge to make a finding that despite this
oversight that it did not per se render the trial unfair.
Unlike that
matter there was no difficulty with the proficiency of the
interpreter. The only problems I encountered were that Mr
Simeon got
involved with long discussions with the accused without interpreting
all of that. There was never any indication that
he was not
proficient in the language or any other problem with his ability to
correctly interpret. He was the interpreter from
earlier in this
matter and there was never any indication from accused on their legal
representatives that Mr. Simeon was not a
suitable interpreter. It
needs to be mentioned that both accused seems to be fluent in English
and at one stage I asked the accused
if he prefers to testify in
English without the services of the interpreter as he answered the
questions even before they were
interpreted to him. Neither of the
accused raised any concerns with the ability of the interpreter. Mr
Ntsingane further informs
me that Mr Simeon is indeed the person
being used on recommendation from The Regional Office of the
Department of Justice and Constitutional
Development as a qualified
Ebo interpreter to be used by the Courts in this area as a casual
interpreter. It would seem that this
was done on the suggestion of
the Honourable Judges in the above mentioned case to establish a
group of efficient and qualified
interpreters to be used by the
Courts for the different languages. He further confirms that Goodwood
Court always make use of the
services of Mr Simeon for all cases
where accused are Ebo speaking. I humbly suggest that my failure to
enquire into Mr Simeon's
proficiency and failure to formally swear
him in should in these circumstances not be found to be an unfair
in-egularity to a fair
trial.
I
would like to respectfully refer the Honourable Reviewing judge to
two recent cases where it was found by the High Court that
not every
irregularity necessarily vitiate the proceedings. I concede that
both cases deal with different circumstances, but
that the principle
and test could have the same effect. In S v Chukwu 2010(2) SACR 29
GNP, the Court dealt with proceedings in
which a candidate attorney
appeared whose rights to appear had expired, should be vitiated
depends on the accused's right to
a fair trial. Held that a
candidate attorney, who continued to appear after the expiry of the
certificate exhibiting his or her
right to appear, committed an
irregularity. However, not every irregularity vitiated the
proceedings during which it had occurred.
The question of
vitiation-or of how the consequences of an irregularity should be
dealt with-must be related to the accused's
right to a fair trial.
Held, accordingly, that against the background of the factors it
could not be said that there would be
a miscarriage of justice if
the proceedings were allowed to remain intact and the case allowed
to reach finality.
In
S vs Nnasolu and another 2010(1) SACR 561 KZP it was held, that
there was no doubt that the restriction placed by the magistrate
on
counsel's cross-examination constituted an irregularity. It was
however
held that the magistrate's refusal to allow
cross-examination on the
voice identification evidence did not
result in a failure of justice.
Although unfair, it did not
result in an unfair trial such as to vitiate the
trial.
In
conclusion I concede that I incorrectly assumed that Mr Simeon is in
the full employ of the Department of Justice and Constitutional
Development. In the circumstances I did not comply with the
requirements to ascertain his proficiency and properly swear him
in.
In the circumstances that this interpreter is the official casual
interpreter used for all cases to be interpreted from the
Ebo
language in Goodwood Court, it is clear that he was fully proficient
and competent to interpret in this case. I humbly suggest
that the
lack of compliance with rule 68(3) did therefore although irregular
not lead to an unfair trial such as for that reason
alone to vitiate
the thai.
I
humbly request that The Honourable Reviewing Judge condone such
irregularity and conclude the trail to have been fair and in
accordance with the law."
It
is necessary to set out the chronological course of the events up
until 16 July 2010 when sentence was imposed.
1.
The accused were arrested on 10 June 2009.
2.
When they appeared in court on 12 June 2009 they were advised of
their right to legal representation and in the event of them
not
being in a position to afford a legal representative, they were
advised of the option of the right to legal representation
through
the Legal Aid Board. It appears that a certain Mr Stevens came on
record as legal representative on behalf of the accused.
The matter
was then postponed to 19 June 2009 for bail information and for EBO
interpreter.
3.
On 19 June 2009 the accused were represented by Adv Rossouw
(presumably standing in for Mr Stevens) and the matter was postponed
to 26 June 2009 for a bail application. The state on this occasion
requested a seven day postponement as it was alleged that
the
accused were in the country illegally and the state required follow
up investigation. The record does not state whether or
not an EBO
interpreter was used.
4.
On 26 June 2009 the accused were granted bail of R5000 each and the
matter was postponed to 15 September 2009 for further investigation.
The record shows that a Miss Z Myamba acted as interpreter. It is
not clear whether she can speak EBO.
5.
On 14 September 2009 the matter was again postponed to 25 September
2009 for a Plea and sentence agreement and an EBO interpreter.
6.
On 25 September 2009 the matter was postponed to 30 September 2009
for consideration of a plea and sentence agreement. On this
occasion
Mr Stevens was on record for the accused again. Accused no.Ts bail
was extended and accused no 2's bail was reduced
to R2500, as he was
still in custody. There is no reference to an EBO interpreter.
7.
On 30 September 2009 the matter was again postponed for a plea and
sentence agreement to 23 October 2009. Accused no.2 was
still in
custody. There is no reference to an EBO interpreter.
8.
On 23 October 2009 the record reflects that a B C Simeon was present
as the EBO interpreter. The matter was then postponed
to 3 February
2010 for trial. Accused no.2 was still in custody having not paid
his bail.
9.
On 3 February 2010 Adv Rossouw appeared for the accused and the
record shows that BC Simeon, the IBO interpreter, is absent.
Mr
Stevens the attorney for the accused was ill and Adv Rossouw then
arranged a trial date for 19 March 2010. The record reflects
that
the date was telephonically arranged with the EBO interpreter.
Accused no.2 had by then paid his bail.
10.
On 19 March 2010 the record reflects the following: Mr Stevens "The
position is as follows. Both accused keep giving
me conflicting
instructions, in that, different versions of the event given to me
by the same accused. I approached the Law Society
in this regard as
I would not know what version to put to the state witnesses and the
Law Society indicated that I am ethically
bound to withdraw thus."
Accused
no.1: Nothing to say except I do not agree I gave version
different.
Accused
no.2: Nothing to say
Accused
no.1: I wish to appoint another attorney.
Accused
no.2: I need a lawyer.
Mr
Stevens withdrew as attorney of record and was accordingly excused..
The
prosecutor placed on record that this was the second time the
matter
had been set down for trial and that the state witnesses
were
present again.
I
The
matter stood down and on resumption both the accused confirmed that
they are able to obtain the services of another private
attorney.
The matter was then postponed to 26 March 2010 for an attorney to be
appointed. The interpreter Mr Simeon was present.
11.
On 26 March 2010 a certain Mr Smith appeared on behalf of the
accused. It is not clear from the record whether he is an advocate
or an attorney. The magistrate then set out the history of the
appearances and stated that since the matter had had long delays
before the court, that the trial would proceed on the trial date as
arranged with the new legal representative. Mr Smith indicated
to
the court that he had full financial instructions and that he
intended to access the contents of the docket. He requested
that the
matter be postponed to September 2010. This request was refused and
a trial date was eventually agreed for 29 June 2010.
The record
reflects that Mr Simeon acted as an interpreter for the accused.
Both accused indicated that they required the services
of an
interpreter on the trial date.
12.
On 29 June 2010 when the trial was to commence Mr Smith the legal
representative for the accused asked for leave to withdraw.
According to the record he had no financial instructions since March
and accused no.2 had allegedly refused to attend on consultations.
Both the accused then indicated to the presiding magistrate that
they could not
afford
an attorney.
Mr
Smith accordingly withdrew as an attorney of record and was excused
by the court. The matter then stood down so that the accused
could
be assessed for legal representation through the Legal Aid Board.
When the court reconvened later the same day a certain
Mr Eden,
presumably an attorney or representative from the Legal Aid Board,
informed the court that both accused do not qualify
for legal aid
and that he would not appear for either of them. According to Mr
Eden he could in any event not attend to the matter.
There is no
explanation on the record as to why he could not attend to the
matter.
The
magistrate further did not enquire from Mr Eden why the accused did
not qualify for legal aid. The record reflects that the
accused
indicated that they would conduct their own defence, but that they
were not happy as they did not even know what the
charge is.
The
record then reads as follows:
"Hof
verduidelik dat nie verder gaan uitstel nie. Onnodige vertragings.
S.A.gereed en stel aanklag. Hof verduidelik dit.
Beide verstaan en
pleit onskuldig."
Since
the proceedings were not mechanically recorded I am not in a
position
to
ascertain what questions were put to the accused which resulted in
their decision to conduct their own defence. Apart from
the cryptic
note by the trial magistrate that he had explained to the accused
that no further postponement would be allowed,
there is no
indication on the record, apart from the reference to unnecessary
delays, why the magistrate decided to proceed with
the trial.
Notwithstanding
the fact that the accused expressed the view that they were unhappy
as they did not even know what the charge
is, the magistrate
insisted that the charges be put to the accused and they were
requested to plead thereto. Both accused pleaded
not guilty and the
proceedings in terms of
section 115
of the
Criminal Procedure Act 51
of 1977
were recorded by the magistrate on the Roneo sheets which
are now commonly in use at many magistrate courts.
It
is important to mention that in this matter the prosecutor adduced
evidence about the use of a trap and/or undercover agent
in
accordance with the provisions of
section 252
A of the
Criminal
Procedure Act 51 of 1977
. In addition thereto the state prosecution
relied on and handed in as evidence during the trial, an affidavit
in terms of
section 212
of the
Criminal Procedure Act 51 of 1977
deposed to by a forensic expert, one Siphilo Jeremia Nqavashe,
relating to the analysis of the substance alleged to have been
the
subject matter of the charge.
The
prosecutor also called one Matthew Maree Swarts, an inspector
employed by the Organised Crime Unit of the South African Police
Services,
and
Winston Walter Wood, the undercover agent employed by the Organised
Crime Unit of the South African Police Services.
Accused
no.1 testified in his own defence and called a witness. Accused no.2
elected not to testify and closed his case without
calling any
witness.
Section
35(3)(f) of the Constitution of the Republic of South Africa, 1996
expressly provides for the right to legal representation
by a legal
practitioner of one's own choice. In terms of section 35(3)(g) of
the Constitution, a legal representative will be
provided to a
person at state expense if substantial injustice would result. Both
these sections, together with
section 73
of the
Criminal Procedure
Act, have
entrenched in our law the right of an accused person to
legal representation both before and at the trial stage.
It
is true that the failure to inform an accused person of the right to
legal representation does not per se result in a failure
of justice
and it is accepted law that it will depend on the facts of each
particular case whether or not a failure of justice
has occurred.
See S
v
Khuzwayo
2002(1)
SACR 24 (NC) at 28h-i. In the present matter we are not dealing with
a failure to inform the accused of the right to legal
representation. The facts of the case, however, illustrate clearly
that, even though the accused did previously enjoy the services
of
legal representatives, they were unable to afford to retain the
services of their legal representatives on the day that the
trial
was to commence.
In
S
v
B
[2003]
3 All SA 274
(EC) the court held that in determining whether a trial
is fair when there has been non-compliance with the right to legal
representation,
a court should use a three pronged test examining
the following aspects:
i.
the
complexity of the case;
ii.
the
general ability of the accused to fend for himself; and
iii.
the
severity of the consequences flowing from a conviction.
See also
A Kruger:
Hiemstra's
Criminal Procedure
par.11.3
Our
courts have repeatedly held that a trial with the clear potential
for substantial injustice cannot continue in the absence
of a legal
representative assisting the accused, except where the accused has
made an informed and . voluntary election not to
avail himself or
herself of the right to such legal representation.
It
is so that if one looks at the record of the proceedings in this
matter, that the impression may be formed that there have
been
unnecessary delays in the finalisation of the matter. I am not
persuaded that these delays can necessarily be attributed
to any
fault on the part of the accused. The matter was postponed on
several occasions for the EBO/IBO interpreter and on one
occasion
the attorney Mr Stevens was ill. On another occasion he withdrew due
to conflicting instructions. On a further occasion
Mr Smith came on
record and expressly indicated that he had "full financial
instructions". He later withdrew on the
trial date due to,
inter alia, lack of financial instructions. Based on the sparse
information as it appears from the record
I am not persuaded that
the trial magistrate had conducted a proper inquiry to determine who
was responsible for the delay as
is envisaged by
section 342A
of the
Criminal Procedure Act 51 of 1977
. All that the record reflects is
that there were unnecessary delays. There is no indication of who is
to blame for these delays.
I conclude that the magistrate was of the
view that the accused were responsible for the delay and hence his
decision to proceed
with the trial.
Even
though the magistrate had referred the accused to the Legal Aid
Board on the day of the trial, the record once again does
not show
on what basis the accused did not qualify for legal aid. I must
accordingly accept that the magistrate did not properly
investigate
the issue regarding the failure of the accused to qualify for legal
aid.
After
the legal aid attorney had advised the court that the accused did
not qualify for legal aid, the magistrate failed and neglected
to
advise the accused that they had the right to appeal against the
decision of the Legal Aid Board. The magistrate further failed
and
neglected to consider or to direct in terms of section 3B of the
Legal Aid Act 22 of 1969 that the two accused be provided
with
alternative legal aid at state expense. In S
v
Du Toit and Others
2005(2)
SACR 411 (T) the court held that a blank reliance on the Legal Aid
Board Guide, irrespective of the infringement of basic
fundamental
rights and irrespective of the consequences, cannot be allowed. It
is now commonly accepted that a refusal by the
Legal Aid Board to
provide legal representation does not in all cases absolve the state
of its constitutional duty. If "the
duty
exists
in a particular case, refusal by the Legal Aid Board to provide
legal representation does not put an end to the corresponding
right." See
Hiemstra's
Criminal Procedure (supra)
at
par 11-5 and S
v
Ambros
2005
(2) SACR 211
(C) at216f-g
The
accused were Nigerian nationals and our legal system was clearly
foreign to them. Accordingly there was a duty on the magistrate
to
properly explain to them what the charge was all about and the
allegations therein set out and had to ensure that they understood
it. Although the record indicates that he explained the charge to
them, it is not clear what it is that he explained to them
since
that part of the proceedings was not mechanically recorded. The
accused were not furnished with a .copy of the charge sheet
and the
magistrate did not ensure that the accused had access to the witness
statements and/or the contents of the docket prior
to the
commencement of the trial. The magistrate further did not ensure
that the interpreter or someone suitably qualified discussed
and
explained to the accused the contents of the witness statements and
the other evidential material to be used in the trial
against them.
The accused were at the very least entitled to have access to the
contents of the docket and they ought to have
been given the
opportunity to study its contents prior to commencement of the
trial. Access to the docket is a basic right of
an accused, the
denial of which can result in an unfair trial. See:
Shabalala
and others v Attorney-General of Transvaal and Another
1995(12)
BCLR 1593.
The
accused were entitled to the witness statements and the other
evidentiary material which the State intended to use against
them
even though they were undefended. Prior to the commencement of the
trial the magistrate should have ensured that the accused
had access
to the witness statements and other evidentiary material contained
in the police docket. He should further have allowed
them a
reasonable opportunity to study the information so provided and he
should have ensured that a suitably qualified person
interprets the
contents of the docket to the accused. This, in my view, is what the
basic notion of fairness and justice is all
about.
I
am satisfied, on the reading of the record of the proceedings, that
the failure on the part of the magistrate to ensure that
the accused
had legal representation resulted in substantial injustice and that
a failure of justice did indeed occur. I pause
to mention that the
issues dealt with in this trial were complex, technical and involved
issues of a constitutional nature. In
addition to this the
magistrate's conduct during the trial leaves much to be desired. I
refer only to the following:
1.
The accused were charged under the provisions of the
Medicines and
Related Substances Act 101 of 1965
for unlawfully and intentionally
dealing in Schedule 2 drugs, to wit, antihistamine which contains
Diphenylhydramine with a member
of the public without the necessary
authority to do so. I am satisfied that many lawyers, professionals
in the pharmaceutical
field and even presiding magistrates in the
lower courts grapple with an understanding of the provisions of this
Act. I am further
satisfied that the accused persons would have had
similar difficulties in understanding the charge they were facing.
They made
it clear at the outset that they did not know what the
charge was. In my view even seasoned attorneys would have had
difficulty
in defending
persons on a charge of this nature.
2.
During the course of the trial, evidence relating to
section 252A
of
the
Criminal Procedure Act 51 of 1977
i.e. the authority to make
use of
traps and undercover operations and the admissibility of
evidence so
obtained, was presented. We are all aware of the
moral and
jurisprudential problems associated with the use of
traps and
undercover agents in the fight against crime in our
country. The issue
relating to traps and undercover agents have
been the subject of much
debate and discussions by our courts and
writers both pre and post
Constitution. See
Amod
v S
[2001]
4 All SA 13
(EC);
Bronstein
"Unconstitutionally
obtained evidence: A study of entrapment
"
1997
114
SALJ 108
at 127ff. I am satisfied that this area of the law
is
complex and difficult even for the courts and lawyers to
understand and
interpret.
The
accused were foreign nationals who clearly did not understand the
concepts involved and the record clearly illustrates that
they did
not know how to approach the evidence of the witnesses in this
regard. Their failure to understand the constitutional
implications
of the evidence and the impact of the evidence is illustrated by the
following exchange between the magistrate and
accused no.1 at page 8
line 2 to page 9 line 18:
'
"Court:
Just a moment, gentlemen you understand this charge and the state is
now leading evidence in terms of
Section 252
of the
Criminal
Procedure Act. They
are entitled to hold this kind of operation. If
you
want
to inform the Court at this stage that they have acted unlawfully
that they did not have the necessary permission that they
did
something wrong in obtaining this permission then you must tell me
now so that we can have a thai within a thai. If not then
we are
simply going to proceed with the evidence and the Court will accept
the evidence as it is given and then make a finding
whether I am
satisfied with their evidence.
Accused
1:
Your Worship, I believe they are not authorised to carry out such an
operation.
Court:
And that belief is based on what sir?
Accused
1:
I told him on that day what I sold to him was salt and that on no
condition could he arrest me on selling salt to him.
Court:
Sir, we are not dealing with whether you sold salt or what you sold,
we are dealing with whether they had authority to do the
operation
which he is starting to testify about. If you want to tell me that
that was unlawful or unconstitutional give me your
grounds why you
say it is unconstitutional and we will have a hearing on that. On
what do you say it is unlawful or unconstitutional,
what is the
facts you say that for because I have not heard anything from him
yet. So I do not know what you base it on but maybe
you know
something that you can tell me.
Accused
1:
Your Worship, I believe they did not have the right the authority to
carry out such an operation.
Court:
Yes, that is all we are dealing with now whether they had the lawful
authority to do it and he was just starting to explain that,
now you
jump in and say but he did not have the authority it is unlawful.
Now
you
shake your head, I am losing you now sir. Are you saying now you
do
not dispute the authority?
Accused
1:
1
am not disputing that Your Worship.
Court:
The Court will in any event then make a finding once the
evidence
has been led because you are undefended but the state can
proceed.
Prosecutor:
Is that with regard of both accused Your Worship ..
Court:
Yes."
It
is not clear to me how the magistrate could have expected the
accused persons, foreign nationals as they were, to understand
the
issues relating to the authority to carry out the trap or undercover
operation and/or constitutional implications of admitting
such
evidence. He certainly did not explain to the accused what the
provisions of
section 252A
of the
Criminal Procedure Act were
about,
nor did he properly explain to them how they should go about
challenging evidence of this nature. He further did not explain
to
them what a trial within a trial is. He also did not ask accused
no.2 whether he wanted to comment on the issue. The
cross-examination
of the witness Swart by the accused or the lack
thereof highlights the inability of the accused to deal with the
very complex
evidence surrounding the application of the provisions
of
section 252A.
The magistrate was not very helpful and did not
show a proper understanding of the difficulties that the accused
were experiencing.
My impression is that he showed an impatience and
that he failed to assist them in circumstances where they
desperately needed
him to assist them, particularly since they were
undefended.
3.
A further illustration of the accused's inability and lack of
understanding of how to deal with the very technical nature of
the
evidence presented itself when the state prosecutor intended to hand
in a
section 212
statement of the expert witness. This part of the
trial is a further illustration of the magistrate's failure to deal
with the
issue fairly and properly as appears from the following
passages in the record at page 20 line 15 to page 22 line 19:
.
"Prosecutor:
Your Worship, the state is in possession of a lab report that
corresponds with the seal number and the CAS number of this case.
The state would like to hand it up as an exhibit. Shall I read it
into the record.
Court:
Gentlemen, the state prosecutor has handed me up the report stating
that it is an affidavit in terms of section 212 of the Chminal
Procedure Act. What section 212 says especially ajthat an employer
of state does not have to come and testify he can make an
affidavit
like this setting out what his experience is what work he has done
and what finding he has made. That then becomes
prima facie
evidence. What that means is it becomes evidence unless you can
provide evidence to prove that that is in fact incon~ect
or prove
evidence that would justify that he would need to come and testify
otherwise the Court will accept this. What it refers
here, it refers
to on 19 August he received one bag with unique number FSB1700125.
now if you listened earlier - if I can go
back to my evidence - that
is in fact the same number that the person who just testified read
out - that he received that that
he opened the bag.
It
contained 48.3 grams of solid matehal in the plastic bag. The seal
was intact he - this person who made the affidavit broke
the seal
and he then analysed it and then he set out here all the strange
technical terms which neither you or me understand
very much of- but
the work that he was doing the machine the used. How he compared it
and then his conclusion is as a result
of that the exhibit material
contained diffonol hydrofonine. And it says diffonol hydorfonine is
an antihistamine.
An
antihistamine is listed in schedule 2 of Act 101 of Section 60 of
1965. That is in fact the exact wording that is on the charge
sheet
and it refers to the same articles of the act. So what it means he
says this stuff that he received in that sealed envelope
is in fact
the stuff that is set out on this charge sheet and it is a schedule
2 offence. It is according in what you then say
in normal terms
drugs it is not salt. That is what this is.
Accused
1:
Your Worship, we are actually insisting that the person who carried
out the tests has to actually bring the substance that we
handed
over to them that day so that we can actually take a look if it was
what we sold to them.
Court:
Unfortunately that is not going to happen unless you can give this
Court valid grounds to say that this person is lying under
oath. To
simply
say you want to see the stuff is not going to happen. That is what I
explained to you what Section 212 of the Chminal Procedure
Act
means.
This
is phma facie evidence the state does not have to prove anything
else. The burden now is on you to prove that this person
who made
this affidavit is lying that he did not do his work and you
unfortunately have to bhng evidence to court. The state
does not
have to prove that. I have just explained this issue to you because
you are undefended. I am not going to enter into
a debate with you
now, you have all the right in the world to prove whatever you can
when I make my final finding in this case."
It
is quite clear from the above that accused no.1 disputed the
substance that was analysed by the expert as set out in the section
212 affidavit. He insisted that the witness come and produce the
substance which would require that the witness testify about
the
substance that he had allegedly analysed. It is clear that accused
no.1 was challenging the
prima
facie
proof
proffered by the state. It is necessary to note that the magistrate
once again failed to give accused no.2 the right to
comment on the
admissibility of the section 212 affidavit. It is further clear from
the record that the magistrate did not explain
to the accused in
detail what requirements the section 212 statement had to comply
with before any reliance could be placed on
it. It is unnecessary to
deal with the requirements at this stage. What is however clear is
that the nature of the substance
analysed was disputed by the
accused and the magistrate ought to
have
insisted that the witness be called to testify about it. The accused
had
contended and accused no.1 testified that the substance that they
had
sold was in fact salt. The state had produced no additional
evidence
to support the certificate of the expert.
See
S
v
Veldthuizen
1982(3)
SA 413 (A);
S
v
Armstrong en 'n Ander
1988(1)
SACR 698 (SEC)
The
magistrate dealt with the objection of accused no.1 in a dismissive
and unhelpful manner and in my view misdirected himself
where he
finds that the
prima
facie
evidence
presented, places an onus on the accused to prove that the person
who made the affidavit is lying and that he did not
do his work. It
is further not clear what he intended to convey when he said to the
accused that:". . . you have all the
right in the world to
prove whatever you can when I make my final finding within this
case." Surely the accused are entitled
to challenge all
evidence presented at trial before the magistrate makes his final
finding and it was the magistrate's duty to
assist them in doing so.
The
magistrate completely lost sight of the fact that he was dealing
with undefended accused persons who were unsophisticated
foreign
nationals who needed his guidance and assistance. The magistrate
should also not have allowed the expert to become the
eyes of the
court. In circumstances such as in the matter before me, the
magistrate must be satisfied by his own observations
that the
conclusions are
correct,
with the aid and guidance as may be appropriate, of the expert. See
S
v
Armstrong en 'n Ander (supra)
at
703a-c. In the circumstances the court accordingly erred in not
calling the expert.
4.
The magistrate's impatience and failure to assist the accused with
the cross-examination of the witnesses is again illustrated
with
reference to the following passages record at page 28 Iine18 to page
30 line 19.
"Court:
Sir, did you pester the person did you keep on phoning him?--
No
your Honour.
Sir,
I do not know what you are arguing about now but you have asked
the
questions quite a few times now and the person has answered.
You
can move along you will get your chance to prove if you can
prove
that he persisted. It does not help to ask him the same
question twenty
times. He has denied it four or five times
already. So move along is
there anything else you would like to
dispute?
Accused
1
:
Your Worship, I have no further questions to ask him.
CROSS-EXAMINATION
BY ACCUSED 2:
You
said the moment the cops arrived the two of us started running. How
come the inspector that testified earlier on said that
I stood at a
particular distance away from where accused 1 was but you say the
two of us run at the same time?—(intervention)
Court:
He did not say he stood away from him sir. You should have listened
to the evidence. He said you stood at the window right next
to him.
You are the one who said you stood a distance away from him. He did
not testify that. He denied what you said.
Accused
2:
I am saying I never run (indistinct) the moment appeared
on the
scene?—You did run you just moved across the road.
But the
witness who testified earlier on said I did not run and I
stood
close to the vehicle... (intervention)
\
Court:
Sir I will evaluate the evidence that was not what he said. You must
listen what he said and when he said it. What he testified
he said
you stood at the vehicle when the dealing took place. He testified
afterwards when they approached that number 1 started
running away
and he followed him and they arrested him and when they came back
they had already arrested you there. He did not
testify whether you
ran or did not run. Number 1, stop shaking you head. I do not know
why you are shaking your head. What are
you trying to tell me? Just
ask number 1 why is he keeping shaking his head at me when I am
talking.
Accused
1
:
Your Worship, I was not shaking my head because the witness
inspector.
Court:
Why are you shaking your head that is what I am trying to ascertain
because every time I speak you shake your head and I do not
know
what you are trying to do. I am just trying to ascertain what is
going on. Apparently the accused does not want to tell
me what he is
doing. Okay accused 2 I have told you now what the witness said. Is
there anything you would like to ask this witness
now about whether
you ran or not ran or anything else? Sir it does not help just to
look at the table is there any questions
you wish to ask?
Accused
2:
I have no further questions.
Court:
Are you sure both of you done?"
It
appears that the conduct of the magistrate with his continued
interruption of the cross-examination of the accused seems to
have
caused them great frustration and probably dissuaded them from
continuing with the cross-examination of the witness. This
is
unacceptable since the accused are undefended and it was the
magistrate who insisted that the trial proceed without the accused
being legally represented. He should have assisted and guided them.
5. A further critical issue which arose in the trial is that
after
the prosecution decided to close the state's case the magistrate
seemingly refused to allow this as is apparent from the
following
passages of the record at page 30 line 23 to page 31 line 11.
"Prosecutor:
That is the state case Your Worship.
Hof:
Ek weet nie hoe jy jou saak kan sluit nie die Hof het nog nie
Bewysstuk A aanvaar as 'n bewysstuk - ag as Bewysstuk B nie. Die
artikel 212 verklahng is 'n afskrif dit is nie net 'n afskrif nie
dit is 'n faks of 'n afskrif van 'n faks. Waar is die oorspronklike
verklaring?
Aanklaer:
Agbare die oorsponklik is blykbaar gepos en dit het in die pos
veriore geraak. Hulle het toe die lab genader vir 'n duplikaat
veri<laring en dit is wat hull deur gefaks het.
Hof:
Nee juffrou 'n duplikaat verklaring is nie 'n ding wat gefaks word
nie. Die Hof gaan verseker nie hierdie stuk dokument aanvaar
soos
dit is nie. Ek sal vir u kans gee om vir my 'n behooriike verklaring
te bring andersins sit u met 'n massiewe groot probleem."
6.
The magistrate then allowed the state prosecutor to recall inspector
Swart on a later date to testify about the absence of
the original
section 212 affidavit. The matter was postponed for this purpose.
His evidence was to the effect that the state
forensic laboratory
had not handed him an original laboratory report, but only a
certified copy of the original. He testified
further that they had
refused to give him the original but that the analyst could come and
testify if called and then produce
the original if requested to do
so. The faxed copy of the original which was earlier handed in was
then replaced by the magistrate
with a copy of the original section
212 affidavit of the expert witness. The expert who was seemingly
available to testify was
not called by the magistrate or the
prosecution to explain the situation.
The
magistrate further fails to explain the impact of the further
evidence in regard to the section 212 affidavit and the effect
that
it may have against the accused. For the sake of completeness I
quote the relevant passage dealing with this aspect as at
page 34
line 10 to page 35 line 5 of the record.
"Court:
Gentlemen, any questions you want to ask the inspector regarding
this copy that he wants to hand in now number 1 ? That is the
affidavit I explained to you last time that in terms of the
Criminal
Procedure Act the
state can hand in. The issue was just a copy they
handed in was a fax which I did not accept. So now they brought the
original
- a copy of the ohginal. Any question you would like to ask
on that? Mr Simeon last time I had the same problem I do not want
you to get into discussions with the accused and they say something
and you say something and the Court does not know what is
going on.
Just ask them the question and answer what they answer. If they do
not understand they must tell me but they must stop
playing games
with you and with the Court.
Accused
1:
Your Worship, we do not have any questions to ask because we do not
have sufficient knowledge about the copy of the original
as such.
Court:
That is fine we will deal with the content with it we are dealing
with the copy itself now. Anything further?
Prosecutor:
Your Worship, the state would like to hand it up as an
exhibit
Your Worship.
Court:
It will be Exhibit B then.
FORENSIC
REPORT ACCEPTED AS EXHIBIT B"
It
is not clear on what basis the magistrate comes to the conclusion
that
the accused were playing games. Instead of trying to determine
whether
there was a problem with the interpretation and whether the
accused
had difficulty communicating through the interpreter he
unfairly
concludes that the accused are playing games.
Bearing
in mind their lack of knowledge of the law and their failure to
appreciate
what was going on it is not surprising that accused no.1
responded
in the manner that he did.
What
is of course disturbing is the fact that the magistrate had clearly
entered into the arena and unfairly assisted the state
in proving
its case against these undefended accused whom he had denied the
right to legal representation and whom he had effectively
refused to
assist in their defence in this very serious case which was abound
with complex and difficult issues with which even
a seasoned legal
practitioner would have experienced difficulties with.
Our
courts have repeatedly held that it is important that the presiding
officer in a criminal trial is not only an umpire but
that he/she is
obliged to see to it that justice is done and he or she must bear in
mind that oona
fide
attempts
to see that justice is done may be perceived as impartiality.
Hiemstra's
Criminal Procedure (supra)
at
22-62.
In
my view the magistrate failed to maintain a careful balance between
interference
and detachment.
See
S
v
Gerbers
1997(2)
SACR 601 SCA at 607a-c
In
the present case the magistrate erred and misdirected himself by
failing to have regard to the fact that the right to legal
representation and legal advice is fundamental to our criminal
justice system. He failed to properly take into account the totality
of the circumstances and the seriousness of the charge the accused
faced. He further did not give proper consideration to their
education; sophistication; intelligence; age and their standing when
deciding to proceed with the trial without affording the
accused the
opportunity of having legal representation. In his undue haste to
finalise the matter, the magistrate effectively
denied the accused
their constitutional right to legal representation by not following
the basic precepts of fairness and justice
and the sound principles
as laid down in the cases hereinbefore mentioned. In my view the
magistrate, in refusing to properly
consider their right to legal
representation as hereinbefore set out, committed a gross
irregularity which is of such a nature
that justice was not done.
On
consideration of the record of the proceedings at trial it is common
cause that the services of a casual interpreter were utilised
to
interpret the evidence of the accused into the record. In his reply
to the query of Yekiso J the magistrate conceded that
Mr Simeon, who
acted as the interpreter during the trial, is not in full employ of
the Department of Justice and Constitutional
Development as a court
interpreter. He further conceded that Mr Simeon was not duly sworn
in as an interpreter by him separately
before commencement of the
trial as is required by rule 86(3) of the Magistrates Court Rules
and the case law relating to the
issue of proficiency. No assessment
was made of Mr Simeon's proficiency to interpret or translate the
EBO/IBO language. Considering
his own concerns about the lengthy
discussions the interpreter had with the accused without
interpreting what was being discussed,
the magistrate should have
been alerted to possible problems in regard to the proficiency of
the interpreter. The magistrate
failed to investigate this issue.
In
his reasons the magistrate request that his failure to enquire into
Mr Simeon's proficiency and his failure to formally swear
him in
should in the circumstances not be found to be an irregularity which
renders the trial unfair. In S
v
Saidi
2007(2)
SACR 637 following the approach in S
v
Mponda
2007(2)
SACR 245 (C)
[2004] 4 All SA 229
[par 34] Yekiso J held that section
6(2) of the Magistrates Court Act 32 of 1944 placed a duty on the
magistrate to call a competent
interpreter, if he or she was not
sufficiently conversant in the language in which the evidence was
given to translate such evidence
into a language with which an
accused person professed to be sufficiently conversant. This
position is entrenched in s 35(3)(c)
of the Constitution which
confers upon every accused person the right to be tried in a
language that he or she understands or,
if that is not practicable,
to have the proceedings interpreted in that language.
Yekiso
J held further (at par[14] at 643e-f) that when the services of an
ad hoc interpreter are used, it is essential for the
presiding
officer to formally satisfy himself as to the expertise of the
interpreter. The interpreter must be sworn in, in an
open court
during the proceedings and questioned to establish his/her
linguistic competence. The enquiry and swearing in of the
interpreter should be formally recorded in the record of the
proceedings.
I
agree with the dictum of Yekiso J in
Saidi
(supra)
that
evidence through an unsworn interpreter constitutes unsworn
evidence, which is inadmissible and that since s 35(3)(i) of
the
Constitution confers on every accused person a right to adduce and
challenge evidence, the consequence of placing unsworn
testimony,
through the interpreter, not only violated the accused's right to
adduce and challenge evidence but also negated the
very right to a
fair trial.
Following
the principles enunciated and so clearly set out in
Saidi
(supra)
I
am satisfied that in the present case the accuseds' rights had been
thus violated and in the absence of any other admissible
evidence
implicating the accused, the proceedings before the magistrate were
not in accordance with justice.
The
magistrate's failure to adhere to the sound principles as set out in
S v
Saidi
(supra)
cannot
be condoned.
^
I
am satisfied that the violations of the accuseds' constitutional
rights as hereinbefore set out are of such a nature that the
conviction and the sentence imposed upon each of the accused cannot
stand.
Accordingly
I propose the following order:
"The
conviction and the sentence imposed on each of the accused are
hereby
set aside."
RlLEY,
AJ
I
agree.It is so ordered.
YEKISO,
J