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[2011] ZAGPPHC 60
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S v Nkuna (A255/2011) [2011] ZAGPPHC 60 (19 April 2011)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
DATE:
19 April 2011
CASE
NO:A255/2011
Magistrate:
BABERTON
- LOW'S CREEK
SUPREME
COURT REF NO: 1113
MAGISTRATE'S SERIAL NO: 19/2010
CASE NR:
L80/2010 L
THE
STATE vs DAVID SIPHO NKUNA
REVIEW
JUDGMENT
RANCHOD,
J
[1]
The accused Mr David Sipho Nkuna was arraigned in the Low's Creek
Magistrate's court on a charge of the contravention of section
80(1)(a) read with sections 1,12,15,35A or 54,47,65-67,80(2),87 and
95 of the Customs and Excise Act, Act 91 of 1964. - having
illicit
goods in his possession knowing that they were illicit. It was
alleged that on 15 May 2010 the accused wrongfully and intentionally
had 100 cartons of Dullahs cigarettes, each carton containing 10
packets and each packet containing 20 cigarettes, in his possession
knowing that these good were illicit as they were imported without
being declared and/or without being taxed and/or of which the
packaging does not contain the prescribed stamp impression. On 5
August 2010, the accused was convicted after questioning in terms
of
section 112(1 )(b) of Act 51 of 1977 and sentenced to a fine of R2
000, 00 or four months imprisonment. This was despite the
fact that
the accused, during his guilty plea, did not admit knowledge of the
goods being illicit. No plea of not guilty was formally
entered into
the record nor was the accused informed thereof. No evidence was led
by the state or the accused.
[2]
The matter lay before me on automatic review in terms of section 302
of the Criminal Procedure Act 51 of 1977(the Act). I caused
the
following queries to be addressed to the magistrate:
2.1
Was there proper compliance with
section 113
of the
Criminal
Procedure Act 51 of 1977
in respect of accused 1?
2.2
Was the conviction of accused 1 correct given that during questioning
in terms of
section 112(1
)(b) he denied knowing the goods were
illicit goods; the State had closed its case without leading any
evidence and the accused
had also closed his case without leading any
evidence?
[3]
The learned magistrate C. Kruger responded as follows:
"2.1
Only when reading the transcription did I realize that I failed to
explain to Accused No 1, after questioning in terms
of
section
112(1)(b)
of the CPA, that his plea of guilty was changed to one of
not guilty in terms of
section 113
and that the admissions he made
during questioning would remain as proof of the facts therein.
2.2
Accused No 1 did deny that he know (sic) that the cigarettes were
illicit goods. He however kept on using "we" and
"us"
- referring to him and his wife, Accused No 2. He created the
impression of him and his wife being in this deal
together
When
Accused no 2 answered the questions during
section 112(1)(b)
proceedings it was quite clear that they were working together and
she knew very well that they bought illicit goods.
Accused
No 1 did not testify after the state closed his (sic) case and
therefore he could not be cross-examined with regard to the
fact that
he denied knowing that the cigarettes were illicit goods. The denial
could therefore not be taken into consideration
as evidence in his
favour.
Although
the correct procedure was not adhered to, it is my humble submission
that justice prevailed."
[4]
The matter was thereafter referred to the Director of Public
Prosecutions for comment. A helpful memorandum was received from
State Advocate L. Williams and Deputy Director of Public
Prosecutions, G.D. Baloyi.
[5]
At no stage after questioning in terms of
Section 112(1
)(b) was the
accused informed that the court is not satisfied that all the
elements of the crime are admitted and that a plea of
not guilty is
entered into the record. For all practical purposes the accused was
and probably still is under the impression that
the court found him
guilty based on his plea of guilty which he entered when questioned
by the magistrate. An unusual feature of
the matter is that the
magistrate advised the accused to close his case without leading any
evidence or repeating the fact that
he had no knowledge of the fact
that the goods were illicit goods. The proceedings are as confused as
the learned magistrate appears
to be. The record reads as follows:
"COURT:
You know I am sorry luckily I have Mr Gumede who is up and about and
I have Mr Krause who is up and about. Okay that
is the State's Case.
Accused number 1 you now have the opportunity of putting your version
before court you can testify under oath
you can call witnesses you
can also remain silent. You heard what Advocate Krause said he is not
going to call any witnesses so
now if you had a lawyer he would tell
you now not to testify because it is only going to take some time. I
am not giving you the
wrong information or anything but I would
suggest that at this time you close your case. ACCUSED 1: I close my
case your worship.
DEFENCE CASE - ACCUSED 1
COURT:
Okay I close my case okay that is Defence Case with regard to accused
number 2 Mr Krause?
ADDRESS
BY THE PROSECUTOR
: As it please the court your worship. The State
will request that he be convicted both accused were on the same date
the same place
doing the same things. What accused number 2 knows
accused number 1 does not know it does not make sense your worship.
COURT:
Ja but then I made a mistake I thought you are going to ask the you
know what in all fairness ja what you have got me now.
No it is not
necessary that he testifies not really.
PROSECUTOR:
Your worship if he testifies he is going to be cross-examined.
COURT:
Ja
PROSECUTOR:
On specific aspects which may be to his detriment.
COURT:
Perhaps I, wat moet ek doen nou moet ek horn nou maar vra om te
getuig?
PROSECUTOR:
Your worship I think accused number 2 is the main suspect so.
COURT:
Okay that is fine.
PROSECUTOR:
As the court pleases.
COURT:
Let us get to accused number 2 at this stage.
Accused
number 2 did admit that he was in possession; ag
accused
number 1 I am with accused number 1 now.
INTERPRETER:
Okay.
COURT:
I am sorry I am really not here.
INTERPRETER:
As the court pleases"
[6]
Thereafter a short judgment follows:
JUDGEMENT-ACCUSED
1
COURT:
Accused number 1 when he pleaded guilty he admitted that he was in
possession of these goods he only said that he did not
know that it
was illicit goods. On the other hand accused number 2 when she
pleaded guilty she said of cause (sic) she was aware
of the fact that
these were iliicit goods she called her husband and told him about
the deal that they can make go and sell it
in Nelspruit. Now to
helping a person even if he did not buy the goods he was there he was
part of this whole deal. He was part
of this whole deal the stuff was
transported in his vehicle I suppose they were both in it. So accused
number 1 is also found guilty
of possession of illicit goods knowing
that it was illicit. Okay?"
[7]
A conviction is still possible on a lesser but competent charge on
the basis of
section 112(1)(b)
admissions even if there was no
compliance with section 113 of the Act where the prosecution leads no
evidence after the Court
has invoked section 113. See S v NYANGA
2004(1) SACR 198 (CPD) at 202 e-g sub-para 9.4.
[8]
In S v MATHE 1981(3) SA 664 (NKA) (a review judgment) Zietsman J
held in a concurring judgment:
"Theoretically
there may be cases where a conviction can be entered in spite of the
entering of a plea of not guilty in terms
of
s 113
of the
Criminal
Procedure Act 51 of 1977
and the failure by the prosecutor to tender
further evidence. In that case and if the accused himself does not
testify, the court
must decide whether a case has been proved beyond
any reasonable doubt against the accused. What the court must do is
to consider
and judge the accused's admissions and his failure to
testify and to ask itself whether all the elements of the offence
which the
accused has not admitted have been proved beyond any
reasonable doubt against him. If different inferences can be drawn
from the
accused's admissions and denials, and if one or more of them
would mean that he is not guilty, he must get the benefit of the
doubt."
[9]
The annexure to the charge sheet refers to section 80(2) of the
Customs and Excise Act, Act 91 of 1964 which reads as follows:
"(2)
When any person is charged with a contravention of paragraph (a) of
subsection (1) he shall, until the contrary is proved,
be presumed to
have known that the goods in question were illicit goods".
[10]
When the charge was read to the accused, the prosecutor did not refer
to this section (See transcript, page 2 1.5).
[11]
The accused were unrepresented and the existence of and the content
of this presumption was never during the proceedings brought
to their
attention, nor explained to them. Indeed, the explanation to the
accused by the magistrate after the State's case was
closed probably
created an expectation by accused 1 to be acquitted after the closure
of his case.
[12]
I am therefore of the view that the learned magistrate did not
properly comply with section 113 and that the court never explained
this fact to the accused. The conviction can therefore not be
confirmed. The court advised the accused not to testify and he in
all
probability believed that the advice was bona fide good advice. This
was to the accused's detriment.
[13]
In all the circumstances, I would set aside the conviction and
sentence.
RANCHOD
N
I
agree,
KOLLAPEN
N AJ
In
the normal course of events.