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[2010] ZAGPPHC 209
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Ntsimane v S (A49/2008) [2010] ZAGPPHC 209 (22 November 2010)
NOT REPORTABLE
IN THE NORTH GAUTENG HIGH COURT.
PRETORIA
REPUBUC OF SOUTH AFRICA
CASE NO: A49/2008
DATE: 22/11/2010
In
the matter between
BERTHA
BETTY
NTSIMANE
..............................................................................
and
THE
STATE
.....................................................................................................
JUDGMENT
Tuchten
J
The
case in the regional magistrate's court
1.
The appellant, a former magistrate in the Randburg magistrate's
court, was convicted by a regional magistrate on a charge of
defeating or obstructing the ends of justice. The charge arose out of
a case the appellant tried in her court. She was sentenced
to four
years imprisonment and is presently on bail pending appeal.
2.
Appellant presided in a criminal case brought against a Mr van Wyk.
The main charge in the Van Wyk case was culpable homicide
arising
from the driving of a motor vehicle. There were also certain
additional charges brought against Van Wyk. The identity of
these
additional charges in the Van Wyk case is critical to the outcome of
the case against the appellant and thus this appeal.
3.
Van Wyk was represented at the Van Wyk trial by an attorney, Mr van
Vuuren, Van Wyk pleaded not guilty to all the charges put
to him but
was convicted by the appellant on all such charges. Van Wyk then
applied for leave to appeal. The appellant dismissed
both Van Wyk's
application for leave to appeal and also Van Wyk's application for
bail pending appeal.
4.
The crux of the State case was this:
4.1
Van Wyk was only charged with;
4.1.1
culpable homicide alternatively reckless or negligent driving;
plus
4.1.2
failing to stop immediately after an accident;
plus
4.1.3
failing to ascertain the nature and extent of injuries.
4.2
In November 2002,the appellant convicted Van Wyk of all charges
against him and noted on the form J15 charge sheet almost invariably
used in criminal cases in the lower courts "Guilty on all
Counts1 -4".
4.3
The appellant then remanded Van Wyk's case to 18 November 2002 for
sentence.
4.4
Although Van Wyk was only charged with these three charges (plus the
alternative charge to the culpable homicide charge of reckless
or
negligent driving), on 18 November 2002 the appellant sentenced Van
Wyk on a total of seven charges. The charges on which the
appellant
sentenced Van Wyk were:
4.4.1
the counts listed in 4 .1 above (without distinguishing between the
main charge of culpable homicide and the alternative
charge of
reckless or negligent driving);
plus
4.4.2
failure to render assistance to the injured person;
plus
4.4.3
failure to ascertain the nature and extent of any damage;
plus
4.4.4
failure to report the accid
en
t.
1
4.5
The appellant imposed a custodial sentence on Van Wyk. On the same
day that Van Wyk was sentenced, attorney Van Vuuren brought
an
application on his behalf for bail pending appeal.
4.6
Attorney van Vuuren noticed, when he examined the J15 during the
morning of November 2002 before the appellant sentenced Van
Wyk, that
the appellant had only convicted Van Wyk on the charges I have listed
in paragraph 4.1above.
4.7
When arguing the bail application, attorney Van Vuuren made the point
to the appellant that an Irregularity had occurred in
the trial in
that Van Wyk had been charged with the charges listed in paragraph
4.1 above but had been convicted of seven charges.
None of the points
made by attorney Van Vuuren in favour of his client, Van Wyk found
favour with the appellant and she refused
bail pending appeal.
4.8
Attorney van Vuuren looked at the J15 again when preparing to a bring
an appeal to the High Court against the refusal of bail
for Van Wyk
pending appeal. He saw that the appellant had written into the J15
after the words "Guilty on all 1-4" the
words “&
5-7". A later stage Van Wyk instructed Van Vuuren to lay charges
against the appellant arising out of her
alteration J15.
5.
The appellant denied that Van Wyk had only been charged with the
three charges plus the alternative. She asserted that Van Wyk
had
been charged with all seven charges, that all seven such charges had
been put to Van Wyk for him to plead to and that she had
noted the
words "Guilty on all Counts 1-4 & 5-7" on one single
occasion, immediately upon conviction of Van Wyk.
6.
The regional magistrate believed attorney Van Vuuren and disbelieved
the appellant and convicted her of defeating or obstructing
the ends
of justice. On 1 March 2005, the regional magistrate sentenced the
appellant to four years imprisonment and refused leave
to appeal.
Although there is no reference to this in the appeal record, it
appears from an affidavit filed by the appellant in
this court on 17
November 2008 that the appellant was granted bail pending appeal on 3
March 2005 pursuant to an urgent application
to this court. She is
presently at liberty on bail.
Events
between refusal of leave to appeal in regional magistrate's court and
day on which appeal called for first time before Tuchten
J and
Ebereohn A J
7.
There is a letter dated 23 July 2007 from Legodi J to the Court
Manager of this court on the court file. In the letter, the learned
judge records that during June 2006, a petition for leave to appeal
was placed before the Judge but the documents were not accompanied
by
the judgment on conviction or a complete record of the proceedings in
the regional court. There then followed correspondence
between
officials of this court and the clerk of the regional court relating
to the petition record and letters from the appellant
herself dated
15 November 2006 to the petition clerk of this court and dated 27
November 2006 to "The Manager Pretoria Magistrate"
complaining about the delays in the adjudication of her petition.
Section 309C(4)
of the
Criminal Procedure Act, 51 of 1977
requires
the clerk of the lower court to submit certain documents to the
registrar of the high court without delay after receiving
from the
accused a notice under
s 309C(3)(b).
These documents are, in a case
such as he present, the application to the magistrate for leave, the
reasons for the refusal of
the application for leave and the record
of proceedings in the lower court.
8.
On about 3 September 2007 the appellant finally lodged an application
for leave to appeal with this court which I assume, because
it was
dealt with as I describe below, complied, at least substantially,
with the provisions of
s 309C
of the
Criminal Procedure Act.
9.
On
that date Bertelsmann J, with whom Makhafola AJ concurred, handed
down a short written judgment which reads as follows:
I
received the petition today just before lunchtime. The petition has
no merit as far as conviction and sentence are concerned.
The
applicant was a very poor witness and the documentary evidence is
conclusive against her.
Leave to appeal is granted solely n basis
that her right to a speedy trial may have been infringed by a delay
of about three years
since her application for leave to appeal was
refused. [my emphasis]
10.
In fact the delay between the refusal of leave to appeal and the date
on which the petition reached Bertelsmann J was two and
a half years.
The petition under
s 309C
is not before us. Nor for that matter is
the record of the Van Wyk trial before the appellant, although there
is, as one would
expect, copious reference to the record of the Van
Wyk
trial in the transcript of the appellant's trail before the regional
magistrate. The record in the Van Wyk trial was an exhibit
in the
trial before the regional magistrate.
11.
No information has been placed before us to explain the delay. I
shall assume in favour of the appellant that no part of the
delay
before the petition reached Bertelsmann J on 3 September 2007 was
attributable to the appellant.
12.
There then proceeded a most remarkable series of postponements of the
appellant's appeal in this court pursuant to the leave
to appeal
granted by Bertelsmann J and Makhafola AJ. We learnt this mainly from
the submissions of counsel made from the bar when
the appellant
applied to us for yet another postponement of the appeal
alternatively an order that the appeal be struck from the
roll when
it was called before us on 16 November 2010. However, there are
certain documents, not forming part of the appeal record,
lying loose
in the court file to which we were not referred but which I read for
the first time, either while preparing for the
appeal (at which stage
I did not appreciate their significance) or while preparing this
judgment and which cast light on the events
I shall proceed to
recount.
13.
It emerged from counsel's submissions that the following is a fair
chronology of events relevant to the appeal. I must stress
that some
of what follows is the product of inference on my part but I have had
to undertake this task without any documents or
affidavits from the
appellant or her attorney other than those which I found in the file
and with the deficiencies I have mentioned
in the record;
13.1 03
/09/07 Leave to appeal granted by High Court
13.2
10/09/07 Registrar's order re leave to appeal issued.
13.3
09/05/08 Appeal set down for hearing in High Court Classen
and Rabie JJ; appellant appears in person; appeal struck
off,
probably for want of heads of argument for appellant.
13.4 17
/11/08 Appellant delivers notice of application for condonation
for Fate filing of heads of argument and extension of
her bail
pending the outcome of her appeal.
13.5
29/01/10 Undated "Leave to appeal application" served
on DPP and Registrar, NG High Court, for leave to appeal
to NG High
Court against order of 3 September 2007 'on the merits"
13.6
27/02/09 Appeal postponed, probably because NG High Court could
not competently grant leave against order of 3 September
2007.
13.7
30/03/09 Appeal called before Msim
eki J and Ebersohn
AJ
;
2
content of o
rder of 3 September 2007 AJ
drawn to attention of appellant's representative; appeal postponed to
enable appellant to petition Supreme
Court of Appeal for general
leave to appeal.
13.8
07/12/09 Appeal postponed, probably because no petition had
been presented to SCA, "Finaal Uitgestel",
13.9 02
/02/10 Appeal again postponed.
13.10
17/08/10 Appeal called before Bam and Van der Byl AJJ: appeal
postponed for reason unknown.
13.11
16/11/10 Appeal called before Tuchten J and Ebersohn AJ.
14.
On 16 November 2010, when the appeal was called, there was no
appearance for the appellant. A copy of a petition to the SCA,
bearing for some reason petition no. 113/06, was on the file of the
appeal in this court. It bore the date stamps of the DPP, 7
October
2010, and of the registrar of this court, 3 November 2010, but no
date stamp of the SCA. In the petition to the SCA the
appellant seeks
general leave to appeal against the conviction and sentence imposed
by the regional magistrate. The filing notice
and the notice of
motion accompanying the petition both bear the date 30 September
2010. The supporting affidavit is undated. Counsel
for the State told
us that she had been informed by the attorney for the appellant that
no response to the petition to the SCA
for general leave had been
received from that court and that it had been agreed with the
attorney for the appellant that the appeal
would be postponed .This
was the first we heard of any application for postponement of the
appeal. We declined to accede to this
informal and belated request
without further information from the appellant. We adjourned the
application for postponement to the
next day.17 November 2010.
15.
On that day, counsel appeared on behalf of the appellant to move for
a postponement. It then emerged that contrary to what counsel
for the
State had been led to believe, no petition had been filed with the
SCA at all.
16.
We learnt from submissions made by counsel for the appellant from the
bar that the petition, in the form it was, placed before
us, ie
without any of the
annexures
referred to in the supporting
affidavit, without any of the relevant judgments from which leave to
appeal was being sought, with
a supporting affidavit that does not
reflect the date upon which it was sworn and without any accompanying
application for condonation,
had been presented to the registrar of
the SCA and had been rejected by that functionary because it did not
comply with the rules
of the SCA. Thereupon no action at all was
taken by the appellant or her attorney to put the petition in order
so that it could
again be presented to the SCA.
17.
I must add that during the hearing of the application for the
postponement of the appeal I was under the impression that
there was
no certainty about whether the record of the proceedings before
Msimeki J and Ebersohn AJ had been transcribed. While
preparing this
judgment. I came across what seems to be an uncertified transcript of
those proceedings lying loose in the file.
It bears out an allegation
in the petition to the SCA that on 30 March 2009 the High Court, per
Msimeki J and Ebersohn AJ,suggested
that a petition to the SCA might
be appropriate There is also some merit in the allegation in the
petition that the court suggested
that the charge against the
appellant in the regional court might have arisen from a clerical
mistake on her part. But I must make
it clear that this suggestion
arose during the course of a discussion between the one of the
members of the court and counsel for
the appellant during the hearing
on 30 March 2009 and was by no means a considered view of the court
3
.
I mention this particularly because in the application for
postponement I was somewhat scornful of the submission that the court
might have viewed the conduct of the appellant as a clerical error.
18.
I dismissed the application for postponement in an
ex tempore
judgment delivered on 16 November 2010, with which Ebersohn AJ
concurred. That judgment should be read with a transcript of what
was
told to us by counsel because no affidavit was presented by the
appellant in support of the application for postponement. One
important reason for dismissing the application for postponement was
that the appellant or her attorney or both of them had misled
the DPP
and this court about the status of the petition to the SCA and more
particularly that neither (the DPP nor this court had
been told until
we pointedly asked what the position was in that regard, that the
petition had been rejected by the registrar of
the SCA for
non-compliance with the rules of that court and that nothing at all
had been done to rectify the posit ion. We ruled
that the appeal had
to proceed. Counsel for the appellant then withdrew and there was no
appearance by or on behalf of the appellant.
Neither the appellant
nor her attorney was at court on either of the two days on which the
appeal was before us.
19.
Another important reason for dismissing the application for
postponement was that no application had been made to the SCA for
condonation for late presentation of the petition to that court. The
order of Bertelsmann J and Makhafola A J was made on 3 September
2007
and issued by the registrar on 10 September 2007. The discussion in
this court when the appellant was specifically altered
to the
possibility that she should petition the SCA took place on 3 March
2009. So at the very best for the appellant and ignoring
the delay
that occurred before 10 September 2007 (the date when the order of
Bertelsmann J and Makhafola A J was issued by the
registrar) she
delayed for some 18 months before making the feeble efforts I have
described to petition the SCA. This delay could
not be explained by
counsel for the appellant and appeared to us to be inexcusable and
was probably brought about simply to put
off the day of ultimate
reckoning.
The
order of 3 September 2007 of Bertelsmann J and Makhafola AJ
20.
The order of 3 September 2007 of Bertelsmann J and Makhafola AJ
restricts in its terms the capacity of the appellant to appeal
the
merits of her conviction or the sentence imposed upon her. The terms
of that order confer on the appellant the right to appeal
only on the
basis that she was denied a fair trial, which l think in this context
means a fair appeal.
21.
I doubt whether it was competent for the court, as a matter of law,to
impose such restrictions.
Section 309C(7)
requires the judges who
consider a petition either to grant it or refuse it. The section does
not in terms empower the judges to
grant conditional leave to appeal.
This provision maybe compared with s20(5) of the Supreme Court Act,
59 of 1959, in which the
power is specifically conferred to grant
conditional leave to appeal.
22.As
the point has not been adequately argued before us. I shall not
decide it but shall assume in favour of the appellant that
the
restrictions imposed in the order of 3 September 2007 are not
competent and that the appellant was granted unconditional leave
to
appeal.
The
merits of the appeal
23.The
merits of the appeal may be swiftly disposed of. The judgment of the
appellant in the Van Wyk case convicting Van Wyk was
transcribed and
is before us as part of the appeal record. It is clear from the
appellants own judgment in the Van Wyk case that
the charges she was
considering were limited to those listed in paragraph 4.1 above.
Furthermore, although the record of the proceedings
in the Van Wyk
case itself is not, as it should have been, part of the record on
appeal, it is abundantly dear from the transcript
of the evidence in
the trial before the regional magistrate that the record of the Van
Wyk case was an exhibit in the trial before
the regional magistrate
and that the record in the Van Wyk case showed that Van Wyk only
pleaded to the charges listed in paragraph
4.1 above. Furthermore, it
would have made no sense for the appellant to have written the word's
'Guilty on all Counts 1-4 &
5-7"on one and the same
occasion. If the appellant had found Van Wyk guilty of all the counts
preferred against him she would
have written "Guilty on all
Counts 1-7". The reason why the appellant wrote the words
"Guilty on all Counts 1-4"
on the J15 can only have been
because she failed to distinguish between the main count of culpable
homicide and the alternative
to the main count of reckless or
negligent driving.
24.
I agree with Bertelsmann J that the appellant was a very poor
witness. Her attempts to explain away the facts I have outlined
in
the previous paragraph were utterly unconvincing. The regional
magistrate rejected the appellant's evidence as false. I agree
with
the conclusion of the regional magistrate in this regard.
25.
I have no doubt that the appellant did alter the J15 in the manner
alleged and that she did so to avoid the embarrassment she
would have
suffered if and when the argument was made on appeal to the high
court that the appellant had acted irregularly in sentencing
Van Wyk
on charges that were never put to him. The alteration was in my
judgment by no means a clerical error as was suggested
by the court
(Msimeki J and Ebersohn AJ) on 30 March 2009. Rather than face the
consequences of her own elementary error, the appellant
tried to
cover up her mistake by falsifying the J15 in the manner described,
to the manifest prejudice of Van Wyk and the administration
of
justice in general.
26.
The appeal against conviction must therefore fail. I turn to the
appeal against sentence.
The
appeal against sentence
27.
In heads of argument dated 9 March 2009, filed for the hearing of the
appeal on 30 March 2009 by counsel then acting for the
appellant, it
is submitted that the regional magistrate disregarded or attached
insufficient weight to the following:
27.1
the appellant's specific personal circumstances;
27.2
the fact that she was a first offender;
27.3
the element of mercy in sentencing;
27.4
the fact that the appellant was not enriched by her criminal
conduct;
27.5
the fact that Van Wyk suffered limited prejudice
4
27.6
the appellant's prospects of rehabilitation (by which is no doubt
meant that the appellant has learnt her lesson and is unlikely
to
commit the crime of defeating the ends of justice again).
28.
It is further submitted in these heads of argument that the sentence
imposed was an impermissibly exemplary sentence and that
the
seriousness of the offence and the community interest were
overemphasised.
29.
It is true that the appellants personal circumstances are mitigatory.
So is the fact that she is a first offender. One would
hope that the
appellant is unlikely to commit this type of offence again because
she has shown herself thoroughly unfit to hold
judicial office and
should never again be allowed to preside in any kind of court or to
hold any public office in which she would
be in a position to put her
own personal interests above those of the persons whose interests she
should be serving. She has also
suffered the great humiliation of
losing her career and position as a magistrate.
30.
But against these factors stands the fact that the appellant has
committed a serious crime for which she has expressed no remorse
whatsoever. She did not commit the offence for direct financial gain.
She did so to protect her own reputation at the expense of
Van Wyk
and the administration of justice. The wrong done to Van Wyk was
righted but the harm done to the administration of justice
by a
judicial officer acting as the appellant has done will endure. Every
judicial officer makes mistakes. In our judicial system,
an accused
person is fully entitled to make of such mistakes what he will before
a court of appeal. The honest judicial officer
acknowledges her
mistake, takes such criticism as may be forthcoming from the court of
appeal in her stride and resolves to learn
from her mistake and not
to err in that regard again. In my view the sentence was entirely
appropriate.
31.
Although the initial delay in the submission of a proper petition to
this court for leave to appeal is not attributable to the
appellant,
the whole of the delay thereafter is entirely her fault. The
impression I formed from the appellant's conduct after
10 September
2007 is that she is trying to delay the day of reckoning. Except
possibly for the period between 1 and 3 March 2005,
the appellant was
at liberty on bail throughout. I see no basis for reducing her
sentence because of the lengthy period which has
elapsed between the
date on which the regional magistrate refused leave to appeal and the
date on which the appeal was finally
heard. There was no suggestion
in the heads of argument or the abortive petition to the SCA that the
appellant wishes to argue
that the initial delay in the presentation
of her petition for leave to the High Court should in some way
operate to reduce the
sentence imposed on her. The appeal against
sentence must therefore fail.
Order
of court
32.
I intend in my order, for avoidance of doubt, to make it plain that
the bail granted to the appellant pending appeal has lapsed
and that
she must report forthwith to begin serving her sentence.
33.
I have also on reflection decided that there is sufficient material
in this judgment to enable the Law Society of the Northern
Provinces
to commence an investigation into the conduct of the appellant's
present attorneys, Moleko Ratau Attorneys, regarding
the petition
abortively submitted to the SCA.
34.
I make the following order:
34.1
The appeals against conviction and sentence are dismissed. The
conviction of the appellant and the sentence imposed upon her
by the
regional magistrate are confirmed.
34.2
It is declared that the bail granted to the appellant pending her
appeal has lapsed because the appeal has been heard and dismissed.
The appellant must by no later than 6 December 2010 report to a
police station in Gauteng to begin serving her sentence. The Director
of Public Prosecutions must ensure that this paragraph of the order
is enforced.
34.3
A copy of this judgment must be delivered to the Law Society of the
Northern Provinces by the Director of Public Prosecutions
within two
weeks of the date on which this judgment is handed down.
34.4
The Law Society is requested to consider whether any disciplinary
action would be appropriate against any partner, director,
associate
or employee of the appellant's attorneys, Moleko Ratau Attorneys,
arising out of the conduct of any such person relating
to the
petition to the Supreme Court of Appeal bearing the date 30 September
2010 in which the present appellant Bertha Betty Ntsimane,
sought
leave to appeal unconditionally against her conviction and sentence
imposed in the regional court of Southern Gauteng under
case no.
41/1429/03.
NB
Tuchten
Judge
of the High Court
22
November 2010
I
agree.
P
Ebersohn
Acting
Judge of the High Court
22
November 2010
1
The
alternative charge of reckless or negligent driving and all the
other charge I have
described
as additional to the charge of culpable homicide were brought under
the provisions of Act 29 of 1989.
2
Ebersohn
AJ has no independent recollection of this occasion
3
Pages
11-12 of the record of proceedings before Msimeki J and Ebersohn AJ
on30 March 2009
4
Van Wyk's conviction and sentence were apparently set aside by the
High Court