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[2010] ZAGPPHC 64
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Ndlangamandla v S (SH665/08) [2010] ZAGPPHC 64 (14 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
[NORTH
GAUTENG HIGH COURT, PRETORIA]
Case
Number: SH665/08
Appeal
Number: A857/09
Date:
14/07/2010
In
the appeal between:
THOKOZAIMI
NDLANGAMANDLA
APPELLANT
and
THE
STATE
RESPONDENT
JUDGEMENT
PIENAAR
A
J
[l]Appellant
was arraigned in the Regional Court at Benoni on 3 October 2008 on
one count of attempted murder.
[2]On
13 January 2009 Appellant pleaded not guilty and elected not to
provide an explanation setting out the basis of his plea in
terms of
the provisions of
section 115
of the
Criminal Procedure Act, 51 of
1977
.
[3]0n
26 March 2009 Appellant was convicted on one count of attempted
murder by the Court
a
quo
and
sentenced in terms of section
276(1
Kb)
of
the
Criminal Procedure Act, 51 of 1977
,
to
10
years imprisonment of which 3 years imprisonment was suspended for 3
years on condition that the Appellant was not found guilty
of
attempted
murder or assault with the intent to do grievous bodily harm
committed during
the
period
of suspension.
[4]Effectively
Appellant is obliged to serve
a
term
of 7 years imprisonment.
[5]In
terms of section 103(1) of the Firearms Control Act
f
60 of 2000, no determination was made by the Court
a
quo
,
resulting
in Appellant being deemed unfit to possess a firearm.
[6]On
26 March 2009 Appellant was granted leave to appeal by the Court
a
que
against
the conviction and sentence handed down.
[7]Heads
of argument were served and filed by Mr Mosopa, on
behalf
of
Appellant, and Mr Davhana, on behalf of Respondent, to whom the Court
is indebted for their able presentation.
[8]Admirably
and in accordance with the honoured tradition of advocacy, counsel
for Appellant, for which he is commended, properly
and correctly
conceded that there was no merit in the appeal against the
conviction, notwithstanding the extremely disturbing and
outrageous
manner in which the presiding magistrate had conducted herself in
Court during the trial, to which I will presently
return.
[9]I
am satisfied that the concession made by counsel for Appellant is
proper and well founded, and therefore the appeal against
the
conviction handed down is dismissed and the conviction on one count
of attempted murder is confirmed.
[10]Before
proceeding to deal with the appeal concerning the sentence handed
down, I deem it appropriate to air my utter dismay
with the demeanour
of the presiding magistrate and the manner in which she had conducted
herself and managed her Court during Appellant's
trial.
[ll]It
is meet to refer to certain passages in the record in substantiation
of the aforesaid, with my emphasis, which I quote
verbatim
.
[ll.l]At
page 4 of the record:
'
Prosecutor
:
Were you drinking? - Yes.
What
kind of liquor did you take on that day? - Beer and sorghum beers.
The quarts or what? - Litres.
Court
:
The
issue is whether he was drunk,
whether
he can remember.
Prosecutor
:
Okay.
Were
you drunk? - I drank but I was not drunk.
Could
you remember anything that happened on that day? - Yes.
Tell
the Court what happened. - I left my place early in the morning that
day.
Court
:
Ja
Sir I do not, we are not interested.
Court
:
Get
to the point you are in a tavern unless there something that happened
before you got to the drinking place. -
I
want
to explain what happened fully Your Worship.
0
for crying out,
yes Sir but you know we have got other matters waiting so we only
want to know what is relevant unless something happened between
your
house and the tavern that Is relevant to this matter the Court does
not want to know what you did in the morning.'
[11.2]At
page 5 of the record:
'
Prosecutor
:
For how long have you known him
prior
to the incident? - It has been so long I have known him but I am
staying (intervene).
Court
:
Years,
weeks.
Prosecutor
:
Years, weeks?
-
A
few
weeks
I
would
say.
How
many weeks?
Court
:
Oh
for crying out loud
.
Interpreter
:
Ja maybe he speak Shangaan Your Worship.
Court
:
Yes
please then ask him sir,
Mr
Mbong-
we
this is ridiculous you know why this is not a brain surgeon question
it is a simple question
.'
[11.3]At
page 6 of the record:
'
Prosecutor
:
In the two days that you knew him did you have any
quarrels with the accused? ~ No we had no problems.
Please
Sir, can you speak Shangaan. -
That
is he found me seated talking to another man at a drinking place.
Baba
can you please speak Shangaan
.
Court
:
Listen
Sir, what language do you want to speak. Now make up your mind. Ja
no,
no, no this is not a court where you speak some kind of strange
Fanagolo you speak Shangaan
.
Is that your mother tongue? ~ No.
Now
what is your mother tongue? - I am talking Zulu mostly.
Then
why are you chop and changing?
-
I
am not fluent in Shangaan.'
[11.4]At
page 13 of the record:
"
Court
:
Is
Zakhele's mother Triphina? - Yes.
Do
you know her as Triphina? - Yes Triphina.
Then
call her Triphina not Zakhele's mother. - Okay Your Worship. Alright.
-
I
want to search that is what he said.
Do
you know accused wife? - I started knowing the accused wife that day
of the incident. I did not know her prior Your Worship.
Her
prior?
Prosecutor
:
Where did you see her?
Court:
:
Sorry
Ms Poswa her prior?
Prosecutor
:
Sorry
Your Worship.
Court
:
Did
you not know who prior? - Her
prior
Your Worship.
Who
is that who is "her" is that the accused wife or is that
the accused because, who are you talking about
?
-I do not know her name but I only know her by sight.
Prosecutor
:
Sir
(intervene).
Court
:
The
accused wife? - Yes I am not sure as to whether it is his girlfriend
or a wife he paid lobola or so I am not so sure.
I
give up let us go ahead
.'
[11.5]At
page 15 to 16 of the record:
'
Prosecutor
:
'Yes left hand pocket. - A black knife.
Tolk:
Dit
is
V?
mes
wat draai Edelagbare as jy so maak dit draai en as hy
f
dit is plank, jungle knife. I have no idea Your Worship my
(intervene).
Court
:
I
get the impression that it is a blade
that
actually....... Just ask where ......
Okay
can I ....... Okay can I ask you
......?
Sir,
can I ask you when, hey
wenna
(speaks in African language).
Tolk
:
Ekskuus
Edelagbare'.
[11.6]At
page 22 of the record:
'
Mrs
Naidoo
:
Did you sign your statement Sir? -Yes.
Was
your statement read back to you to make sure that (intervene)?
Court
:
Please
do not have a conversation with this man you got to have cognisance
(inaudible) person's intellectual level. So please just
keep it
simple
?'
[11.7]At
page 25 to 26 of the record:
'
Court
:
What
did you not say? Sorry Mrs
Naidoo.
- At that stage when he was busy stabbing me I said I jumped shortly
after the stabbing I jumped to my next door neighbour's
place
(intervene).
Mr
Mbongwe can you imagine I know this is what this gentleman is using
the word jump but can you imagine that a person who was stabbed
to
such an extent that he fell down would be able, physically able to
jump over a fence? I
know
communication is one of the lazy hobbies in the society but just
enquire from him what in God's name does he mean by jump,
jump means
you take off you fly through the air
.
A picture of health. - I was not jumping over the fence I was pushing
fences as demonstrated Your Worship.
That
is right you walked into the fence I fell over it that is the big,
what you demonstrate that is a big difference between that
and jump.
Mr
Mbongwe you are a Court interpreter you should clarify that.
Interpreter
:
I'm trying Your Worship we (intervene).
Court
:
Okay,
I know it is difficult but please.
We
do not want to make medical history
.
Sorry Mrs Naidoo, take it up with him what does he mean? What did you
not say, what did he say, he said I did not say that.'
[11.8]At
page 30 of the record:
'
Court
:
Give
us a name of one witness Sir if you would kindly do so? - Zakhele's
mother Is present.
But
does Zakhele's mother have a name?
Is
she not Triphina? Then for God sake when vou refer to somebody call
him by the name, him or her? -
Triphina.'
[11.9]At
page 37 of the record:
'
Court
:
Who
is Zakhele's mother? - I do not know her.
Prosecutor
:
Zakhele or Zakhele do you have a child by the name of Zakhele? - My
daughter is Khele Your Worship.
Court
:
Oh
then you are the mothe
r.
You see this why I have got a big hate for this grand talk about
(intervene)
.
Prosecutor
:
So
and so is Martha.
Court
:
Instead
of calling a person by his name. Okay.'
[11.10]At
page 42 of the record:
'
Mrs
Naidoo
:
Thank you Your Worship. Madam you said that you were drinking at the
time when the argument started at Normans place? - Yes.
How
much had you had to drink at that particular time?
Court
:
Alone
I am not talking about what now I rest my case
.
Every time that question is asked, how much did you drink oh we had.
I had a case of quarts then later we. I hear you and fifty
others.
Listen
to the question. How much did you drink, put down your throat
?
- I think I had four quarts Your Worship, 750ml.
You
alone? - Yes Your Worship.
Were
you (inaudible)? Over what period? You alone drank four quarts of
beer? - We were, what we were sharing Your Worship was a
sorghum beer
Your Worship. We were not sharing beers.
But
were does the four quarts come in now Mrs Naidoo?
Mrs
Naidoo
:
I do not know. Madam you had four quarts of what?
Court
:
Mr
Nong,
please
just tell her that she threw down her throat not what she
shared.
Interpreter
:
Yes Your Worship.'
[11.8]
At page 43 of the record:
'
Interpreter
:
She said it is a bucket Your Worship.
Court
:
No,
no she shows look at that about
8
centimetres.
Do you agree Mrs Naidoo?
Mrs
Naidoo
:
Your Worship it seems to be getting smaller .
Court
:
Oh
for, you know Ms Poswa
I
wish to God you people will sort this out in consultation
.
Prosecutor
:
Your
Worship I did.
Court
:
So
I do not get de..... annoyed.
Ma-dam,
now make up your mind, how much did you drink? Show me the bucket?
What
you call a bucket which is not a bucket for crying out loud that will
be a very flat bucket.
Why would you call such a thing a bucket? Ms Lubbe have you got a
ruler here? You Indicating a, that, you say, show me on this
ruler
how high was this bucket okay? - Mr, Inspector (intervene).'
[11.13]
At page 44 of the record:
'
Court
:
13
centimetres - 13 centimetres how
many
of those containers did you personally have? - It was four containers
Your Worship.
Four,
I am talking about a tali glass why would you call it a bucket? For
crying
in a bucket,
Mrs
Naidoo
:
Okay.
Court
:
Sorghum
beer is that homemade or did
you
buy it? - It is not a homemade Your Worship. Now that is something to
the better.
Okay
because I know some of these beers they put anything in it. battery
acid I do not know what the hell else but anyway
.
Mrs
Naidoo
:
Your Worship not (inaudible) straight me I just clarified one
aspect.
Court
:
You
can please do it.
Mrs
Naidoo
:
Thank you Your Worship.
Court
:
It
is just vou know Mrs Naidoo I for the
life
of me I cannot understand this
.
I will never be able to understand this if you ask a person how much
did you drink oh we had a case of I had a case of beers and
then
everyday oh no it later comes to light no it was myself and six
others which does not make it a lot of beer you know.
But
on your own personally I think it is physically impossible to drink a
case of beers ail by yourself but this is what we hear
r
a simple question
.
I cannot understand why the answers are always so confusing if there
is something wrong with people's understanding, how much
did you
drink. Carry on. Please clarify it thank you?'
[12]
The aforesaid is clearly demonstrative of a presiding officer that is
meddlesome, not only with the prosecution, but also the
defence and
the interpreter, who are important Court officials entitled to the
dignity and respect their respective offices carry,
and lastly but
not the least, the witnesses and the accused. Clearly the presiding
magistrate conducted the case in a manner placing
her ability to
properly adjudicate the case at jeopardy as the person holding the
scale between Appellant and the State in order
to determine
objectively and dispassionately the way the balance tilts.
See
R
v Roopsingh 1956(4) SA 509(AD); S v Phiri 2008(2) SACR 21(T).
[13]None
of the Court officials, be it the interpreter, the prosecutor or the
defence, is given or allowed the opportunity to present
the evidence
in the manner they deem meet and expedient, with the result that the
presiding magistrate is forever caught up in
the cauldron taking
place in the arena.
[14]To
exacerbate this situation the presiding magistrate's conduct and
demeanour is at times irritable, derogatory, outrageous
and
blasphemous, which is manifestly unprofessional, unethical and not
becoming of the station occupied by the presiding magistrate.
Nor
does it portray dignity, control and objectivity, being the
foundation on which respect for the judicial system is founded.
The
presiding magistrate's demeanour is discourteous to all of the
relevant officials and parties, whereby is included the witnesses
and
the Appellant, whilst the hurling of insults with impunity
in
facie curiae
is
most unbecoming conduct which cannot be condoned and which ultimately
fails to substantiate and portray the principle that justice
should
not only be done, but should also be seen to be done. See
S
v Schietekat 1998(2) SACR 707(C); S v Phiri,
supra
.
[15]It
is apposite to repeat what was said by the learned judge in S v
Schietekat,
supra
at
716e in regard to the conduct of a judicial officer:
\4
judicial
officer wields enormous power. Gowned, sitting on high and surrounded
by the trappings of his office he cuts an imposing
and terrifying
figure. Consequently he must constantly ensure that every courtesy is
extended to those who appear before him. To
stand accused of a crime
is a frightening ordeal. No person should be allowed to feel
intimidated in the orderly presentation of
his case ....'
[16]Suffice
it to state that the presiding magistrate has not done her office
proud. I am of the opinion and deem it expedient that
this matter be
referred to the Magistrate's Commission for investigation and
implementation of the necessary remedial steps to
address an actual
and extremely serious situation which calls to be redressed
expeditiously. It is to be mentioned that should
this magistrate
continue to manifest the same demeanour in future it is foreseen that
it could ultimately be found that an accused
had not enjoyed a fair
trail and that justice had not been done. 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.
[17]The
whole spectre of a Court room, from the presiding officer,
prosecutor, defence, interpreter and witnesses, whereby is included
the accused, is entitled to be dealt with in a dignified and
respectful manner, otherwise Justitia, who is a zealous lover, fails
to be honoured. The aforesaid conduct of the presiding magistrate
undoubtedly constitutes a grave irregularity impacting negatively
on
the proper administration of justice. In this regard I am of the
opinion that this is a border line case which could have
resulted in
the conviction being set aside due to the trial not having being
conducted in accordance with justice. See
S
v Gwebu 1988(4) SA I55(W); S v T 1990(1) SACR 57(T); S v Gqulagha
1990(1) SACR 101 (AD); S v Kuse 1990(1) SACR 191(E); S
v
Schietekat,
supra
:
S
v
Madigaze 1999(2) SACR 420(W); S v Phiri,
supra
.
[18]
I trust that the aforesaid criticism will be heeded and that the
conduct complained of will be remedied at the earliest convenience
with the necessary disciplinary measures being imposed, if found to
be justified.
[19]Turning
to the appeal on the sentence handed down, it was submitted by Mr
Mosopa, that the sentence was harsh and inappropriate,
and
considering Appellant's personal circumstances, a lesser sentence
should have been imposed.
[20]In
this regard it was submitted that the presiding magistrate had
misdirected herself by failing to properly evaluate Appellant's
persona! circumstances when weighed against the particular
circumstances that had prevailed prior to the assault on the
complainant.
[21]Mr
Davhana, on behalf of the State, contended that no misdirection
had been committed by the presiding magistrate and that
the sentence
handed down, although harsh, was appropriate and proportional to the
nature and seriousness of the crime committed.
[22]It
is trite law that the Court handing down a sentence is called upon to
consider the personal circumstances of the accused,
the nature of the
crime committed and the interest of society in order to determine an
appropriate sentence. See
S
v Zinre 1969(2) SA 537{AD),
[23]
I have no doubt that the presiding magistrate misdirected herself and
over emphasised the seriousness of the crime committed
by Appellant
thereby neglecting to properly consider Appellant's personal
circumstances and the interests of an informed society.
This resulted
in the Court
a
quo
concluding
that the crime Appellant was convicted of was serious which society
expected to be dealt with sternly. Therefore the
Court
a
quo
found
that a lengthy term of imprisonment was called for to be a deterrent
not only to Appellant, but to others too.
[24]Besides
the medico-legal report on form 388, which was handed in as exhibit
"A",
tabulating
the complainant's injuries, no medical evidence was presented to the
Court
a
quo
regarding
the severity of the wounds sustained and whether any of them had been
life threatening, besides the fact that the number
of wounds noted by
the medical practitioner contradicted the evidence of the
complainant.
[25]No
evidence was placed before the Court
a
quo
to
found and substantiate the conclusion that it was only by the grace
of God that complainant had survived and that the Appellant
was a
cruel, brutal and callous person. This was manifestly a further
misdirection committed by the Court
a
quo
.
[26]There
is no doubt that the presiding magistrate's conclusion that Appellant
had been arraigned incorrectly, and that Appellant
should have been
charged with housebreaking with the intent to commit murder and
attempted murder, undoubtedly weighed heavy on
the presiding
magistrate's mind and influenced her to consider and hand down an
unduly harsh and inappropriate term of imprisonment.
There is no
indication that the presiding magistrate had distanced herself from
this conclusion when she determined what an appropriate
sentence
would be.
[27]Suffice
it to point out that the magistrate's attempt to justify the sentence
handed down by differentiating between an attempted
murder whilst
under the influence of liquor or committed at a shebeen, fails to
carry
the
day. According to Appellant and the complainant, Appellant had been
drunk when the incident took place whereby a measure of
jealousy
regarding Appellant's wife had been involved, which was disregarded
by the presiding magistrate.
[28]Without
detracting from the gravity of the crime committed by Appellant, I am
satisfied that when measured on the barometer
of seriousness, the
crime committed does not fall in the utmost callous and brutal
category,
per
se
indicative
thereof that Appellant was inherently wicked. No evidence was
presented that in Appellant's case the prognosis for rehabilitation
was out of the question or negligible.
[29]Although
the current and unprecedented wave of violence, murder, homicide,
robbery and rape imposes a responsibility on the
Courts to act
fearlessly and in unambiguous terms to announce to the world its
repugnance of such conduct, the sentence ultimately
handed down
should nonetheless be blended with a measure of mercy. Such is the
hallmark of an informed and civilized society. See
S
v Kumaic 1973(3) SA 697(AD); S v Sparks 1972(3) SA 396(AD).
[30]The
repugnance and abhorrence with which a committed crime is viewed is
not necessarily dependant on the term of imprisonment
imposed. See
S
v Whitehead 1970(4) SA 428(AD); S
v
Holder
1979(2) SA 70(AD).
A
necessary corollary of the aforesaid is the fact that it is
imperative to mete out punishment not in a standardized format but
with due consideration of the particular facts peculiar to the case.
See
S
v Skenjane 1985(3) SA 51(AD).
[31]On
a proper appreciation and evaluation of the circumstances in this
case, I am of the view that the age of Appellant, the fact
that
Appellant was a first offender, married and gainfully employed
supporting his family, the fact that he was incarcerated for
almost 6
months awaiting trial, that no serious injuries were inflicted on the
complainant taken together with the fact that liquor
had been imbibed
and that a measure of jealousy was involved, taken cumulatively with
the fact that it is accepted that there are
reasonable prospects of
rehabilitation, the imposition of a term of imprisonment is
nonetheless justified. Such a sentence is to
be blended with the
required measure of mercy which will satisfy the interests of an
informed society, reflecting the seriousness
of the crime committed
and effectively acknowledge the personal circumstances of the
Appellant.
[32]Having
regard to the aforesaid circumstances, I am satisfied that the Court
a
quo
had
failed to consider and evaluate the factors enumerated and to
consider the said factors in the proper perspective to the detriment
of Appellant. Therefore the Court
a
quo
had
misdirected itself with the result that this Court is at liberty to
set aside the sentence handed down and to impose an appropriate
sentence. Under the circumstances T am of the view that the term of
imprisonment imposed by the Court
a
quo
,
being
the prescribed maximum, renders the sentence inappropriate and unjust
inducing a sense of shock Therefore this Court is at
liberty to
consider an appropriate sentence afresh.
[33]Consequently
the sentence imposed and handed down by the Court
a
quo
is
set aside on appeal and in terms of
section 276(l)(b)
of the
Criminal
Procedure Act, 51 of 1977
, the Appellant is sentenced to 8 years
imprisonment of which 3 years imprisonment is suspended for 3 years
on condition that Appellant
is not convicted of attempted murder or
assault to do grievous bodily harm committed during the period of
suspension.
[34]In
the result the following order is made:
1.
The
appeal against the conviction on one count of attempted murder is
dismissed and the conviction is confirmed.
2.
The
appeal against the sentence imposed is upheld and altered to read as
set out hereinafter.
3.
In
terms of
section 276(l)(b)
of the
Criminal Procedure Act, 51 of 1977
,
Appellant is sentenced to 8 years imprisonment of which 3 years
imprisonment is suspended for 3 years on condition that Appellant
is
not convicted of attempted murder or assault with the intent to do
grievous bodily harm committed during the period of suspension,
4.
In
terms of section 282 of the Criminal Procedure Act, 51 of 1997, the
sentence is antedated to 26 March 2009.
5.
In
terms of
section 103
of the
Firearms Control Act, 60 of 2000
,
Appellant is declared unfit to possess a firearm.
6.
The
Registrar is directed to forward a copy of this judgement to the
Magistrate's Commission for the necessary investigations to
be
instituted into the conduct of the presiding magistrate and to
initiate the appropriate disciplinary measures.
W.
F. PIENAAR
ACTING
JUDGE OF THE HIGH
COURT
I
agree.
It is so ordered.
M
F LEGODI
JUDGE
OF THE HIGH COURT
CASE:
A857
/09
FOR
THE APPELLANT: ADV M J MOSOPA INSTRUCTED BY: LEGAL AID
FOR
THE RESPONDENT: ADV V L N DAVHANA INSTRUCTED BY: DIRECTOR OF PUBLIC
PROSECUTIONS