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[2011] ZAGPPHC 131
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Maruwa v S (A 327/2010) [2011] ZAGPPHC 131 (29 July 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
No. A 327/2010
DATE:29/07/2011
In
the appeal of:-
LEFA
BERNARD
MARUWA
.........................................................................................
Appellant
and
THE
STATE
..............................................................................................................
Respondent
JUDGMENT
Van
der Byl AJ:
Introduction
[1]
This is an appeal, lodged with leave of this Court, against
conviction and sentence which served before a Full Bench, but was
referred to the Full Court because the two Judges concerned were
apparently unable to agree.
[2]
The Appellant (to whom I shall refer as "the Accused'} who was
at all relevant times an additional magistrate in the magistrate's
office of Benoni, was charged with 11 counts of Fraud, alternatively,
Defeating the Ends of Justice, further alternatively, Forgery
and
Uttering forged documents well knowing them to be forged.
[3]
On 29 September 2009 the Accused was convicted on the 11 counts of
Fraud and on 9 November 2009 he was sentenced to a fine of
R5 000 or
12 months imprisonment, the counts taken together for purposes of
sentence.
Relevant
facts of the matter not in dispute
[4]
In terms of section 56 ofthe
Criminal Procedure Act, 1977
{"the
Act'), 11 notices were issued to a certain Mr. Jonathan Given Mashego
("the accused person") in respect of
the following traffic
offences, namely -
(a)
a contravention of section 58(1) of the National Road Traffic Act,
1996 (Act 93 of 1996), in that he upon or about 27 February
2004 did
fail to stop at a stop sign (he was required to appear in court on 1
June 2004 unless he paid an admission of guilt of
R400 on or before
30 April 2004);
(b)
a contravention of regulation 212(j) of the regulations made under
the
National Road Traffic Act, 1996
, in that he upon or about 11
March 2004 did drive a vehicle which was fitted with a pneumatic tyre
which did not display throughout,
across its breadth and around its
entire circumference, a pattern which was clearly visible, and had a
tread of at least one millimetre
in depth (he was required to appear
in court on 15 June 2004 unless he paid an admission of guilt of R200
on or before 4 May 2004);
(c)
a contravention of
section 12(a)
of the said
National Road Traffic
Act, 1996
, in that he upon or about 5 April 2004 did drive a vehicle
without the necessary driving licence (he was required to appear in
court on 28 June 2004 unless he paid an admission of guilt of R500 on
or before 17 May 2004);
(d)
a contravention of
regulation 319(1)
of the said regulations in that
he upon or about 17 May 2004 did hinder or obstruct traffic on a
public road (he was required to
appear in court on 24 August 2004
unless he paid an admission of guilt of R300 on or before 23 July
2004);
(e)
a contravention of
regulation 304(1)
of the said regulations in that
he upon or about 11 August 2004 did stop his vehicle on the roadway
of a public road (he was required
to appear in court on 27 September
2004 unless he paid an admission of guilt of R500 on or before 9
September 2004);
(f)
a contravention of
regulation 319(1)
of the said regulations in that
he upon or about 12 September 2004 did hinder or obstruct traffic on
a public road (he was required
to appear in court on 26 October 2004
unless he paid an admission of guilt of R500 on or before 8 October
2004);
(g)
a contravention of
regulation 213(4)
of the said regulations in that
he upon or was about 7 October 2004 did not wear a seat belt (he was
required to appear in court
on 23 November 2004 unless he paid an
admission of guilt of R100 on or before 5 November 2004);
(h)
a contravention of
regulation 212fj)
of the said regulations in that
he upon or was about 4 November 2004 did drive a vehicle which was
fitted with a pneumatic tyre
which did not display throughout, across
its breadth and around its entire circumference, a pattern which was
clearly visible,
and had a tread of at least one millimetre in depth
(he was required to appear in court on 10 January 2005 unless he paid
an admission
of guilt of R100 on or before 23 December 2004);
(i)
a contravention of
regulation 213(4)
of the said regulations in that
he upon or was about 18 November 2004 did convey a passenger not
wearing a seat belt (he was required
to appear in court on 10 January
2005 unless he paid an admission of guilt of R100 on or before 23
December 2004);
(j)
a contravention of
regulation 213(4)
of the said regulations in that
he upon or was about 21 December 2004 did not wear a seat belt (he
was required to appear in court
on 14 February 2005 unless he paid an
admission of guilt of R100 on or before 27 January 2005);
(k)
a contravention of
regulation 155(1)(c)
of the said regulations in
that he upon or about 1 February 2005 did operate a vehicle with an
inadequate parking brake (he was
required to appear in court on 14
March 2005 unless he paid an admission of guilt of R300 on or before
24 February 2005).
[5]
The accused person did not pay the amounts fixed as admission of
guilt or appear in court on the respective dates set in the
various
notices and in each case a warrant was authorized for his arrest.
[6]
On 29 March 2005 he appeared in the absence of the prosecutor in the
Accused's office on these 11 traffic offences and, at the
same time
an enquiry was conducted, purportedly under section 170(2) of the Act
for his failure to appear in court on the respective
dates.
[7]
In each case the Accused completed a roneoed form which states or
reflects (see: Exhibits B1 to B11, record pp. 223 to 275)
that -
(a)
the prosecutor was Mr. Kabanyane and the interpreter Mr. Nomahagala;
(b)
the prosecutor has put the charges to the accused person and that he
pleaded guilty on all the charges;
(c)
the court at the request of the prosecutor proceeded in terms of
section 112(1)(a) of the Act;
(d)
the prosecutor and the accused person had "no address" on
the merits;
(e)
the accused person was convicted on each charge as charged;
(f)
the prosecutor proved no previous convictions;
(g)
the accused person in mitigation of sentence stated that he was
married with four children who are at school, that his wife
was
unemployed, that he was the only breadwinner and that he sells
vegetables earning on average R1 000 per month;
(h)
the prosecutor had "no address" on sentence;
(i)
the accused person was cautioned and discharged on each charge;
(j)in
relation to the section 170(2) investigation, the accused person
explained -
(I)
in some of the cases that his ex-employertook the respective tickets
and said that he would pay the respective fines, that
he constantly
asked his employer whether he had paid the fines and that he assured
him that he had paid the fines, but refused
to show him any receipt
and that he should not worry;
(ii)
in the case of the offence that occurred on 7 October 2004 (para
[4](g) abovel, that on the date he was supposed to appear
in court
(ie., 23 November 2004) he had to go and see a doctor, that he was
given a sick certificate, but that he left it at home;
(iii)
in the case of the offence that occurred on 4 November 2004 (para [4]
(h) above), that on the date he was supposed to appear
in court (10
January 2005) his youngest child was on his way to school was
involved in an accident and that he had to take the
child to
hospital;
(iv)
in the case of the offence that occurred on 1 February 2005 (para
[4](k)), that on the date he was supposed to appear in court
(14
March 2005) he was suffering from flu and went to see a doctor who
gave him a medical certificated which he had unfortunately
misplaced;
(k)
the explanations were, obviously, accepted at face value and the
various warrants of arrest were cancelled.
[8]
It is mainly on these facts that the Accused was charged on the
allegation that upon or about 29 March 2005 and at or near the
Benoni
Magistrate's Court he did wrongfully, falsely and with the intent to
defraud gave out and pretend to the Ekurhuleni Metro
Police, M M
Jacobs, the clerk of the court, P Myburgh, the Judiciary, Mr. Calitz,
the prosecution or the community -
(a)
that the court was properly constituted in that a certain Mr.
Kabanyane was present in his capacity as prosecutor, that he had
put
the 11 charges concerned to the accused person and that the accused
person pleaded guilty to all the charges;
(b)
that the prosecutor had no address on the merits;
(c)
that the prosecutor proved no previous convictions;
(d)
that the prosecutor had no address on sentence;
(e)
that the prosecutor had the opportunity to take part in the
subsequent proceedings in terms of
section 170(2)
of the
Criminal
Procedure Act, 1977
, and did then and there by means of these false
pretences induce the aforesaid instances to believe the aforegoing
contentions
whilst in truth and fact he knew when he so pretended
that the court was not properly constituted and that the prosecutor
was not
present at the proceedings.
[9]
The Accused who was initially represented by an attorney, Mr. C
Coetsee, pleaded not guilty on all the charges as well as the
alternative charges.
(On
10 December 2008 Mr. Coetzee withdrew as defence attorney during the
cross-examination of the witness Mr. Peens whereafter Ms.
Killian
appeared as defence counsel)
[10]
The Accused formally admitted -
(a)
that the 11 cases in question were all tried in one trial in the
Accused's chambers;
(b)
that the prosecutor was not present during this trial, but that the
interpreter, Mr. Nomahagala was present;
(c)
that on the 11 roneoed forms used for this purpose he indicated that
both the prosecutor and the accused person had "no
address"
on the merits.
''
11 in his plea explanation the Accused alleged that -
(a)
late in the afternoon of the day in question the accused person was
brought to his chambers by a traffic official, a certain
Mr. Peens,
who had all the documentation in his possession;
(b)
he attempted to arrange for Mr. Kabanyane the prosecutor to be
present, but he was not available;
(c)
if he had failed to deal with the matter, it would have resulted in
the accused person being held in custody at least overnight
on
"relative minor traffic related offences" and where "he
might have valid explanations for failing to have appeared
in Court';
(d)
he elected to deal with the cases in his chambers "in what he
considered the proper execution of his duties" and that
he "at
no stage had any ulterior motive
(such
as a bribe or being corrupt) in mind
(e)
this is a matter which should rather have been sent on review in
terms of
section 304
of the
Criminal Procedure Act, 1977
, or
investigated by the Magistrate's Commission.
[12]
The Accused alleged in his plea explanation and in his evidence that
it has become a practice, not only in the Benoni magistrate's
court,
but in all magistrate's courts throughout South Africa for
magistrates to hear traffic related matters in chambers and not
in
open court, particularly, during the course of the afternoon as "a
more relaxed way of ensuring the voluminous traffic
cases, thrust
upon magistrates daily are dealt with.
[13]
Against that background, the evidence can be considered. The State's
case
[14]
The State called four witnesses.
[15]
First Mr. Gerhardus Calitz who at the time was an additional
magistrate at the Benoni magistrate's court and a colleague of
the
Accused.
He
testified that in the ordinary course of the running of the courts
the prosecutor, the State being dominus litis, would enrol
matters
and would then call the magistrate to
court.
There is, so he testified, no practice where matters are dealt with
in the absence of a prosecutor.
[16]
Second, Mr. Zukila Ronald Khabanyane who at the time was the
prosecutor in the Accused's court, Court 7.
He
testified that on 29 March 2005 the court adjourned at 15h35 (this
appears from the court book). On that day no traffic cases
were dealt
with in that court as all traffic cases were dealt with in Court 5,
the traffic court.
The
Accused never called him after court hours to attend to traffic
matters in his chambers.
The
procedure he ordinarily followed constituting the court was that as
soon as he was ready for the court to begin he would phone
the
Accused on his cell phone to inform him that the court was ready
whereupon he would then come to court on his own.
Under
cross-examination he explained that the Accused had his cell phone
number and could at any time have phoned him on his ceil
phone.
[17]
Third. Mr. Magiel Johannes Peens, who at the time, was employed by
the Metro Police in Benoni and who acted as court orderly
in the
magistrate's court of Benoni charged with, inter alia, the duty of
preparing the court rolls in respect of all traffic court
cases.
He
testified that the Accused came to him on the day in question and
handed some "printouts" of 11 cases to him in respect
of
the accused person who had outstanding warrants of arrest and
requested him to get the cases ready and to bring them to his
office.
The "printouts" are ordinarily obtained from the computer
system which contains details of traffic tickets issued
to them and,
if any, also outstanding warrants authorized against such persons.
These printouts are obtained by accused persons
themselves at the
Traffic Department. In this case, he guessed, the accused person
could have taken the printouts to the Accused.
He then, as requested
by the Accused, obtained the various control sheets and the
respective warrants of arrest, entered the cases
in the court book
and in his register and took the matters to the Accused in his
chambers. According to him this all occurred before
9h00 being the
time the courts ordinarily commenced with their daily rolls. He did
not see the accused person. According to him
the Accused was alone in
his office when he handed him the relevant documents. Having done
that he left and went back to his office.
The
next day he collected the cases from the Accused's office and handed
it to Ms. Jacobs who was also employed in his office and
who was
charged with the function of capturing the information relating to
the results in the computer system.
He,
furthermore, testified that the normal practice was that accused
persons would approach him whereupon he would prepare the cases
and
take the documents to the prosecutor who would then in turn take the
cases to the traffic court.
At
the time, according to him, traffic matters were dealt with in Court
5 where a certain
Mr.
de Beer was the presiding magistrate and a certain Mr Myburgh was the
prosecutor.
It
also appears from the evidence that the cases were previously entered
into the court book of Court 5, but because the accused
person was
not present it was recorded in the court book by the presiding
magistrate that the cases were entered in error and the
cases were
returned to him.
Under
cross-examination his evidence was challenged in various respects. In
this regard I can refer to the following:-
First.
it was put to him that he took the accused person to the Accused's
office. He denied that he saw the accused person and persisted
with
his evidence in chief that he was requested by the Accused to bring
the cases to his office and that the Accused was alone
in his office
when he handed the cases to him.
Second,
it was put to him that it was not before 9h00 when he took the cases
to the Accused's office, but that it occurred after
15h30. At first
he denied the allegation, but later conceded that it was possible
that it could have occurred after 15h30.
However,
on resumption on 5 August 2009 on the occasion of which Ms. Killian,
following the withdrawal of Mr. Coetzee, took over
as defence
counsel, he again persisted that it occurred before 9h00, ie., before
the courts started.
Should
an accused person approach him in the afternoon after court hours he,
so he testified, ordinarily requests the person to
report the next
morning so that the case can then be enrolled. In such cases he would
prepare the cases and take then to the prosecutor
of the court
sitting as a traffic court. He never in the past approached any other
magistrate to deal with traffic cases and to
cancel warrants of
arrest. He is not aware of cases that are disposed off in the offices
of magistrates.
Third,
he was asked whether he and the prosecutor, Mr. Myburgh, were setting
a trap for the Accused to establish whether he was
conducting trials
in his office. He denied that a trap was set for the Accused.
Fourth,
it was put to him that when he took the cases to the Accused, the
interpreter, Mr. Namahagala, was present in the Accused's
office. He
denied that the interpreter was there when he handed the cases to the
Accused.
[18]
Fourth. Ms. Anna Magdalena Maria Jacobs, who was employed by the
Ekurhuleni Metro Police in the warrants section.
She
testified that she was approached on 21 February 2005 by a person who
handed her "printouts" of warrants of arrest
in respect of
one Mashego and asked her to draw the cases and enter them into the
court register. On a question whether he was
an accused, he said that
he was the court orderly of Court B. She then told him that the
accused must come to her himself. He then
left and returned the next
day and told her that the magistrate, being the Accused, was looking
for the cases and that she must
enter the cases in the register. She
said to him that she would do that, but that the magistrate must come
and sign for the cases.
No one however came to her office to sign
forthe cases. The next day she was informed that the accused person
was at court whereupon
she phoned the prosecutor, Mr. Myburgh, and
told him that the accused will appear in court. He then said that he
would collect
the cases from her. The cases were later returned to
her on wh ich it was indicated that the accused did not appear. She
later
returned the cases for filing.
On
30 March 2005 she was approached by officers of the Metro Police to
check for outstanding warrants. In the process the name of
the
accused person came up. A few days later she found the cases on her
desk and noticed that the cases had been disposed of.
Under
cross-examination when confronted with her police statement she
confirmed that there were eight cases against the accused
person at
the time she was requested to draw the cases against him during
February 2005, but when she was approached by the Metro
Police on 30
March 2005 she established that the cases have in the meantiume
increased to 11 cases.
The
Accused's case
[19]
The Accused gave evidence in his defence and called two witnesses.
[20]
The Accused testified that he had been a magistrate since 1989 and
admitted
that
he conducted the proceedings in the 11 matters in question.
He
contradicted the evidence of. particularly, Mr. Peens and Ms. Jacobs
in various respects.
[21]
With regard to the evidence of Mr. Peens he testified that -
(a)
at about 15h35 or 15h40 on the day in question Mr. Peens came to his
office with the accused person and asked him whether he
could deal
with the matters as the prosecutor of the traffic court had already
left, whereupon, reluctantly he agreed to deal with
the matters;
(b)
at the time the interpreter was with him in his office;
(c)
after he dealt with the matters Mr. Peens returned to his office as
the accused person was leaving his office and collected
the court
register and the court documents.
[22]
With regard to the evidence of Ms. Jacobs he denied that at any stage
before 29 March 2005 he dealt with any of these matters.
[23]
According to his evidence, immediately having received the documents,
he started to enter the appearances on the roneoed sheet
- he, as the
presiding officer, Mr. Kabanyane, as the prosecutor and Mr.
Nemahagala, as the interpreter.
[24]
Having done that he attempted to telephone his prosecutor, Mr.
Kabanyane, on his land line extension, but there was no reply.
When
asked by his counsel why he did not attempt to get hold of another
prosecutor or the control prosecutor or the senior prosecutor,
he
stated that he did not do that because the "cases were many"
and that he wanted to finish them before "work knocked
off'.
When asked why, after having been unable to get hold of Mr.
Kabanyane, he did not phone him on his cell phone, he said that
he
did not think of that.
[25]
He said that after he tried to get hold of Mr. Kabanyane, he started
to ask the accused person whether he was guilty or not
guilty. At
that stage he thought that Mr. Kabanyane would come to his office
because he had by then not yet come to collect the
daily statistics.
On being referred to the words on the roneoed form indicating that
the prosecutor had put the charges to the
accused person and that the
accused understood and pleaded guilty, he stated that he genuinely
thought that the prosecutor would
come "at a later stage".
With regard to the words "no address" inserted by him after
the question whether or
not the prosecutor had any address on the
merits, he said that he entered those words "because at that
stage the prosecutor
was not there and that (he) thought that at a
later stage if he would not come (he) would delete his name ... and
then 'no address'
would mean that the prosecutor was not there".
He said that later, because it was already late, he forgot to delete
the prosecutor's
name.
[26]
In relation to the words "public prosecutor proves no previous
convictions and hands in no SAP 69" and the words
"public
prosecutor on sentence: no address" he said that that was the
correct position as the prosecutor was not there.
[27]
In concluding his evidence in chief he denied that it was ever his
intention to defraud anyone or to make any misrepresentations
at that
time his only intention was to help the accused person who had been
brought to him by Mr. Peens. However, he admitted that
at the time of
his trial, but not at the time he conducted the proceedings, he
realized that leaving Mr Kabanyane's name on the
papers was false and
that having indicated in the record that the prosecutor had "no
address" was also false.
[28]
In relation to the contempt of court proceedings he testified that he
normally never asks the prosecutor anything in response
to an
explanation offered by an accused.
[29]
Under cross-examination -
(a)
he admitted that the proceedings were not conducted in accordance
with law because of the absence of the prosecutor,
(b)
he said that he thought that in the event of him not proceeding with
the proceedings the accused person would be locked up because
of the
warrants of arrest;
(c)
when asked why he did not merely roll the matters over to the next
day, he said he did not think about that and referred to
a case at
Kimberley sometime ago where a magistrate refused to deal with a
criminal matter because it was late, but eventually
agreed that it
was a mistake not postponing the matter;
(d)
he stated that after having recorded all the appearances it could
have already been 16h00 and that if the prosecutor came to
his office
thereafter he would merely have deleted the prosecutor's name because
by that time he had already done everything.
[30]
The first witness called on behalf of the Accused was the accused
person, Mr. Jonathan Mashego.
[31]
He testified that-
(a)
after having obtained certain printouts from the Traffic Department,
he went to the magistrate's court where he met a certain
white man
(who he later pointed out as Mr Peens) to whom he handed the
printouts;
(b)
after having collected some documentation, Mr. Peens took him to the
Accused's office where he left him;
(c)
apart from the Accused, there was another person in the office who
performed the function as interpreter;
(d)
he was asked whether or not he was guilty of the traffic offences
concerned, being offences he committed whilst he was a taxi
driver;
(e)
he asked them to afford him the opportunity to pay the fines off
monthly;
(f)
amongst the 11 cases there were two in respect of which he failed to
appear in court because he was in hospital;
(g)
he was then told that he should go;
(h)
as he left the office Mr Peens entered the office, but that he did
not know for
what reason.
Under
cross-examination he explained that when he received the traffic
tickets he gave them to the persons for whom he was working
from time
to time and thought that they would pay the fines as they said that
they will sort the tickets out or would pay them.
[32]
The Accused's second witness was Mr. Calvin Nemahagala who was the
interpreter in the proceedings conducted in the Accused's
office.
[33]
He testified that -
(a)
Court 7 in which he was the interpreter and the Accused was the
presiding officer adjourned on this day at about 15h35;
(b)
whilst he was sitting in court the Accused asked him to come to
collect the court book in his office;
(c)
whilst he was still in the Accused's office Mr. Peens arrived, with
control sheets. at the Accused's office with a person who
later
appeared to have been the accused person and who, according to his
perception, had been arrested;
(d)
Mr. Peens asked the Accused to entertain the matters because the
prosecutor of the traffic court had already left;
(e)
the Accused attempted to get hold of his prosecutor, without success,
and the Accused then "reluctantly said that he will
assist;
(f)
the accused person was then asked whether he was guilty or not guilty
of the various charges whereupon he pleaded guilty to
all the
offences;
(g)
they were busy with this process until after 16h30;
(h)
all the documents were handed over to Mr. Peens who was present
throughout
in the office whereafter he left together with the
accused person.
[34]
Under cross-examination he testified that -
(a)
he made his statement on 8 June 2005 at the request of the Accused;
(b)
it was the first time that he was involved in traffic matters in a
magistrate's office in the absence of a prosecutor;
(c)
he in any event did not find it strange as the court orderly was
present;
(d)
he recalled, albeit in uncertain terms, that on one occasion he acted
as interpreter in chambers of another magistrate without
a
prosecutor.
Findings
of court a quo
[35]
The magistrate found that -
(a)
he was favourably impressed by the evidence of Mr. Calitz and Mr
Kabanyane;
(b)
Mr. Peens did not impress him favourably and that it would be unsafe
to rely on anything he said;
(c)
the evidence of Ms Jacobs did not take the matter any further;
(d)
there is no reason why he should not accept the evidence of Mr.
Mashego;
(e)
the evidence of Mr. Nemahagala was "pathetic";
(f)
there is no reasonable possibility of the Accused's version as to
why he submitted the false documents being substantially
true and
rejected, particularly, his explanation why he proceeded with the 11
cases without a prosecutor and why he did not correct
the record.
[36]
The magistrate concluded that the following facts were proven beyond
reasonable doubt, namely -
(a)
the Accused, as an additional magistrate, indeed conducted the
proceedings on the day in question in the absence of a prosecutor;
(b)
the Accused in the process allowed the respective records of the
proceedings to show that the court was properly constituted,
that the
prosecutor was present and that he was afforded the opportunity to
take part in the proceedings;
(c)
no prosecutor was present at any time and the proceedings were
irregular and invalid;
(d)
the accused person was given the lightest possible sentence, being a
caution and a discharge, despite the fact that the admission
of guilt
fixed in respect of the various matters varied between R100 and R500.
[37]
The magistrate held that -
(a)
the Accused intentionally gave out and pretended (in respect of the
instances alleged in the chargesheet) that the court was
properly
constituted and that the prosecutor was present when he knew that
this was not true;
(b)
a possibility of prejudice constitutes potential prejudice;
(c)
if a prosecutor had been present and had been allowed to take part in
the proceedings, it is quite likely that the accused person
would
have been imposed a more severe sentence;
(d)
court proceedings without a prosecutor in itself creates extreme
prejudice for the State. 'j
The
grounds of appeal on conviction
[38]
In the Accused's heads of argument, the Accused's convictions are
challenged on the following grounds -
(a)
during cross-examination of the Accused, the presiding magistrate
improperly descended into the arena with the consequences
set out in,
inter alia, S v Rail 1982(1) SA 838 (A);
(b)
as held in the judgment in S v Visagie 2009(2) SACR 70 (W), the
Accused should have been acquitted as the maxim de minimis non
curat
lexis applicable on the facts of this case;
(c)
the Accused's actions did not constitute the crime of fraud because
of the lack of potential prejudice and the intention to
defraud,
[39]
I deal seriatim with these grounds.
The
contention that the magistrate descended into the arena
[40]
The manner in which a judicial officer should conduct a case before
him or her was dealt with in the case of SvMaseko 1990(1)
SACR 107
(A) (albeit in the context of an application for recusal) at 116e as
follows:
"Die
juiste benadering tot die hele aangeleentheid van rekusering is al
teikemale in ons regspraak oonveeg en toegelig. Die
grondliggende
beginsei is dat die regspleging re a/fe tye sonder enige sweem van
suspisie moet geskied. Nie alleen moet die voorsittende
regspreker
die saak voor horn onpartydig, onbevooroordeeld en met 'n oop gemoed
benader nie, maar dear moet ook niks in sy optrede
of verbintenisse
met ander wees wat 'n redelike persoon aanleiding kan gee om te dink
dat reg en geregtigheid nie in sy Hof geskied
het nie.".
See
also: S v Zuma
[1995] ZACC 1
;
1995 (1) SACR 568
(CC)
(1995 (2) SA 642
at 579d S v
Mosinyane 1998(1) SACR 583 (T) at 594d S v Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) at 225b S v Msithing 2006(1) SACR 266 (N) at 273c S v Phirl
2008(2) SACR 21 (T) at 24c S v Owies and Another 2009(2) SACR
107 (C)
at 112i SvLe Grange and Others 2009(1) SACR 125 (SCA at 140e
[41]
The question very often is whether a judicial officer's questioning
and conduct constituted on his or her part "an unjustified
descent into the arena" to such an extent that he or she became
'blinded by the dust of battle" (see: S v Mafu and Others
[2008] ZAGPHC 38
;
2008
(2) SACR 653
(W) at 672f, para [38]).
[42]
On the question whether or not an irregularity of descending into the
arena constituted a failure of justice, the learned Judge
in Maseko's
case, supra, referred to the test set out in S v Felthun
1999 (1)
SACR 481
(SCA) at 485h - 486b, as follows:
''Generally
speaking, an irregularity or illegality in the proceedings at the
criminal trial occurs whenever there is a departure
from those
formalities, rules and principles of procedure with which the law
requires such a trial to be initiated and conducted.
The basic
concept is that an accused must be fairly tried ....
As
to the question whether there has been a failure of justice, this
Court has in a number of decisions recognised that in an exceptional
case the irregularity may be of such a kind that it per se results in
a failure of justice vitiating the proceedings .... Where
the
irregularity is not of such a nature that it per se results in a
failure of justice, the test to be applied to determine whether
there
has been a failure of justice is simply whether the Court hearing the
appeal considers, on the evidence (and credibility
findings if any}
unaffected by the irregularity or defect, that there is proof of
guilt beyond reasonable doubt. If it does so
consider, there was no
resultant failure of justice. (My underlining)
[43]
The following remarks of Curlewis JA in R v Hepworth
1928 AD 265
at
277 are apposite in the circumstances of this matter:
"A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake by the other side,
and a Judge's
position in a criminal trial is not merely that of an umpire to see
that the rules of the game are observed by both
sides. A Judge is an
administrator of justice, he is not merely a figure-head, he has not
only to direct and control the proceedings
according to the
recognised rules of procedure but to see that justice is done".
See
also: S v Gerbers 1997(2) SACR 601 (SCA) at 606a
[44]
These principles need to be considered in the light of what happened
at the hearing.
[45]
The Accused contends that -
(a)
when the Accused was cross-examined the magistrate asked 63 questions
and the prosecutor asked only 58 questions;
(b)
the magistrate's questions were not asked for purposes of
clarification, but were put in cross-examination style.
[46]
In the Accused's Heads of Argument reference is made to various
passages in the record where the magistrate posed questions
to the
Accused.
A
reading of these passages shows that these questions relate to -
(a)
the Accused's allegation that he proceeded with the proceedings
notwithstanding the absence of a prosecutor because he thought
that
if he did not finalize the proceedings the accused person might be
incarcerated as there were various warrants of arrest authorized
against him;
(b)
the Accused's concession that his actions in proceeding with
proceedings in the absence of a prosecutor were irregular;
(c)
the Accused's allegation that if the prosecutor arrived late he
would have deleted any reference to the prosecutor from the
record;
and
(d)
an altercation between the magistrate and defence counsel as to
whether he would or should have done that in respect of all
the 11
cases concerned if the prosecutor arrived before he had dealt with
all the cases.
[47]
Regarding the Accused's evidence that he wanted to prevent the
accused
person
being incarcerated, the magistrate asked the Accused, following a
question by the prosecutor, whether he could not have rolled
the
matter over until the next day when the prosecutor would have been
available in response to which the Accused conceded, correctly
in my
view, that he could have done that, but indicated that he did not at
that stage think about doing that. It is in passing
significant to
note that there is no evidence to suggest that the Accused
investigated whether or not the accused person would
otherwise have
been incarcerated
[48]
Regarding the Accused's concession that the proceedings were
irregular, the magistrate asked the Accused whether he realized
that
the proceedings were irregular and, when he conceded that the
proceedings were irregular, why he then did that, in response
to
which, the Accused reiterated that he did that because he wanted to
prevent the accused person being incarcerated.
[49]
Regarding the Accused's evidence that he would have deleted the
prosecutor's name if the prosecutor arrived late and the altercation
between the magistrate and the defence counsel are concerned, the
magistrate asked the Accused, following a question by the prosecutor,
to clarify his allegation as he did not understand the Accused's
contention. It is of some significance to note that the Accused's
proposition that he expected the prosecutor to collect certain
statistics was never put to the prosecutor, Mr. Kabanyane. The
proposition smacks of an afterthought.
[50]
Having considered these passages I am unpersuaded that the
magistrate's involvement in this regard was of such a nature that
there was a resultant failure of
justice.
[51]
This is best illustrated if regard is had to the findings the
magistrate made on the evidence after having dealt with the
credibility of the respective witnesses and the factual findings he
made.
[52]
The manner in which the magistrate dealt with the various witnesses
and their credibility, finding, for example, that it is
unsafe to
rely on the evidence of Mr. Peens, does not in the least create the
impression that he was biassed or failed to exercise
an unfettered
judgment (S v Mohase 1998(1) SACR 185 (O) at 193b).
[53]
The factual findings the magistrate made in relation to the Accused's
intention are based common cause facts, namely, that
the Accused gave
out and represented in respect of each case referred to in the
chargesheet that the court was properly constituted
and that the
prosecutor was present whilst he knew that it was not true.
[54]
The submission in this regard is accordingly in my view unfounded.
De
minimis non curat lex
[55]
The contention appears to be (with reference to the Visagie case,
supra) that this is a matter where the court "should
(not)
become concerned with ... childish and trivial behaviour".
[56]
In support on this contention the Accused submits that -
(a)
the Accused intended to assist the accused person:
(b)
the magistrate's finding thatthe presence of a prosecutor would have
influenced the outcome of the various cases is mere speculation;
(c)
the magistrate indicated "that the case is one of minute
potential prejudice as well as a very petty offence";
(d)
the fact that the matters were not taken on review is support for the
lack of seriousness.
[57]
These submissions are not correct in all respects.
[58]
The Accused's explanation for his actions (ie., that he intended to
assist the accused person) were rejected by the magistrate
as being
so improbable that there is not the slightest of it being reasonably
possibly true. The magistrate's finding in this regard
is not
challenged either in the Notice of Appeal or in the heads of argument
filed on his behalf. I n fact the Accused conceded
that he made a
mistake by not having rolled the matters over to the next day.
I
have no reason to fault the magistrate's finding.
Although
it is impossible to determine what exactly motivated the Accused to
act as he did, I am satisfied that the Accused was
not truthful when
he indicated that he had done that to assist the accused person. The
Accused was at the time already an experienced
magistrate. He
admittedly knew what he had done was irregular and to say that he did
not think of merely rolling the matter over
to the next day is simply
unbelievable and unrealistic. It would appear that because of the
fact that he finalized the matter at
or after 16h30 he should have
known that the cancellation of the warrants of arrest could not at
that late stage been taken up
into the system and that the accused
person could in any event have remained at risk of being arrested.
The safest option would
have been to have rolled the matter over to
the next day if it was his intention to assist the accused person.
[59]
Whether or not the outcomes of the various matters would have been
more severe if the prosecutor attended the proceedings may
be
speculation, but it is a possibility that cannot be excluded. The
accused person's address in mitigation and his explanation
why he
failed to appear in court on the days determined in the various
notices was in any event untested. It is not unlikely that
the
prosecutor, if present, could have insisted on adducing evidence in
aggravation of sentence or to persuade the Accused on the
credibility
of the accused person's contentions. Bearing in mind the fact that
the accused person appeared to be a serial traffic
offender, the
sentences imposed are to say the least unrealistically lenient. The
accused person, according to his evidence, indicated
that he informed
the Accused that he was there to ask for an opportunity to pay the
fines off. It defies belief that simply because
the accused person
said that although he earned on average about R1 000 per month, he
did not have
money
to pay a fine, the sentence would be a mere caution and discharge.
This means that any offender would be cautioned and discharged
in
respect of any offence punishable with a fine, simply because he or
she alleges that he or she is unable to pay a fine. This
is patently
absurd.
[60]
The contention that the magistrate indicated "that the case is
one of minute potential prejudice as well as a very petty
offence"
is not correct and in any event referred to out of context. During
the evidence of the second State witness the magistrate
said that
looking at the chargesheet the impression is created that the Accused
created the impression that everything went according
to procedure.
In so far as everything did not go according to procedure the
magistrate indicated that "it is obvious that
there had been
prejudice, even minute prejudice". The magistrate did not
indicate that it all related to petty offences. The
offences are in
my view by no means of a petty nature.
As
already indicated, it is, as is apparent from Exhibits B1 to B3 the
Accused obstructed the traffic. According to Exhibit B4 he
drove a
vehicle without a driver's licence. Exhibits B5 and B9 indicate that
he drove a vehicle with worn tyres. According to Exhibit
B6 he
disregarded a traffic sign and in Exhibits B8, B10 and B11 he is
accused of having driven a vehicle without wearing a seat
belt. As a
taxi driver these offences should be considered as serious offences.
[61]
It does not appear from the record that the 11 matters had indeed not
been taken on review. It is in any event of no consequence.
The fact
remains that the
proceedings
were indeed irregular.
[62]
The charges against the Accused and the circumstances under which the
were committed are in my view by no means a trivial matters.
[63]
A fraud committed by a magistrate in the performance of his judicial
functions could simply not fall under the maxim de minimis
non curat
lex.
[64]
In my view there is no merit in this submission.
The
question whether the evidence constituted the offence of fraud
[65]
Fraud is the unlawful and intentional making of a misrepresentation
which causes actual prejudice or which is potentially prejudicial
to
another (see: Snyman, Criminal Law, fourth edition, p. 520) which has
as its elements (a) misrepresentation; (b) prejudice or
potential
prejudice; (c) unlawfulness; and (d) intention.
[66]
It cannot be disputed that the Accuseds actions constituted in each
of the 11 cases a misrepresentation. The Accused in any
event in fact
admitted, albeit ex post facto, that the contents of the records kept
in the cases were indeed false. It indeed created
the impression to
at least the Metro Police who were in effect the complainants in
these matters that the court was properly constituted,
that the
prosecutor was present and that the proceedings were otherwise
conducted in accordance with law.
[67]
As I have already indicated, the accused person, according to the
record of the proceedings kept by the Accused explained by
way of
unsworn statements -
(a)
in mitigation of sentence that he was married with four children who
are at school, that his wife was unemployed, that he was
the only
breadwinner and that he sold vegetables earning on average R1 000 per
month;
(b)
in relation to his failure to appear court on the various dates
specified in the respective notices -
(i)
in the case of the offence that occurred on 7 October 2004 (see:
paragraph [4](g) above), that on the date he was supposed to
appear
in court (23 November 2004) he had to go and see a doctor, that he
was given a sick certificate, but that he left it at
home;
(ii)
in the case of the offence that occurred on 4 November 2004 see:
paragraph [4](h) above), that on the date he was supposed
to appear
in court (10 January 2005) his youngest child when going to school
was involved in an accident and that he had to take
the child to
hospital;
(iii)
in the case of the offence that occurred on 1 February 2005 see:
paragraph [4](k) above), that on the date he was supposed
to appear
in court (14 March 2005) he was suffering from flu and went to see a
doctor who gave him a medical certificated which
he had
unfortunately
misplaced;
(iv)
in all the other cases that his ex-employer took the respective
tickets and said that he would pay the respective fines, that
he
constantly asked his employer whether he had paid the fines and that
he assured him that he had paid the fines, but refused
to show him
any receipt and that he should not worry.
It
is obvious that the Accused simply accepted these explanations at
face value notwithstanding the fact that, in some cases, the
explanations were extremely vague and in some of the other cases, the
explanations appear to be highly doubtful or suspicious,
for instance
-
(a)
in relation to his allegation that he was unemployed, no particulars
were given or obtained as to when he became unemployed
as he was
obviously until 1 February 2005, being the date of the last offence,
still employed as a taxi driver;
(b)
in relation to his explanations on his failure to appear in court on
the respective dates, it appears -
(i)
from the particulars contained in the various notices that the
offences were committed by him as taxi driver in at least five
different vehicles;
(ii)
that, notwithstanding his explanation that he was under the
impression
that
his employer had taken care of the tickets, he was apparently aware
that he was bound to appear in court on 23 November 2004,
10 January
2005 and 14 March 2005, but failed to have done so because he was
indisposed on those days;
(iii)
that he failed to give any explanation why he did not report at court
on any of the days thereafter.
The
inescapable inference is that the Accused had given very little, if
any, consideration to the matters or that he at least considered
the
matters with the utmost disinterest or a preoccupied intention to let
the accused person go unpunished.
[68]
It would appear that the misrepresentations were clearly made to
conceal the inexplicable and bizarre conduct of the Accused.
[69]
In having recorded that the court was properly constituted and that
the prosecutor duly participated in the proceedings the
Accused
obviously created the impression, and by clear implication intended,
to represent to the authorities that the proceedings
were conducted
in accordance with law.
The
Accused, however, explained that he intended at some stage, either
after having dealt with the matters or if the prosecutor
arrived
late, to delete the reference to the prosecutor in the respective
records, but eventually forgot to do that. The magistrate,
correctly
in my view, rejected this explanation as unconvincing. The Accused's
version
is
certainly so improbable that it cannot reasonable possibly be true
(see: S v Shackell 2001(2) SACR 185 (SCA) at 194f, para [30]).
I
am satisfied that the Accused intended to proceed with the matter in
the absence of the prosecutor and, having done so represented
to the
authorities and intended to do so that the matters were disposed of
in accordance with law.
[70]
This brings me to the question of prejudice or potential prejudice.
[71]
In view of the fact that the misrepresentations could have had the
effect that the authorities would have accepted the proceedings
to
have been regularly conducted and not to take the proceedings on
review to ensure that the proceedings were properly disposed
of,
counsel acting on behalf of the Accused conceded in argument that
potential prejudice has been established.
[72]
In my opinion the concession was correctly made.
[73]
Having held that the Accused intended to represent to the authorities
that the proceedings were conducted in accordance with
law, I am
accordingly satisfied that the State proved the charges of fraud
against the Accused beyond all reasonable doubt.
Sentence
[74].
It would appear that this Court granted the Accused leave to appeal
against conviction and sentence, although the Accused
in his
application only sought leave to appeal against his conviction.
[75]
In the heads of argument filed on behalf of the Accused it is merely
submitted that the magistrate misdirected himself in having
indicated
that the actions of the Accused was "a serious form of prejudice
towards the judiciary, alternatively, that should
this Court have
imposed a sentence, such sentence would be so disparate from the
sentence imposed by the magistrate.
[76]
I do not agree.
[77]
In my opinion it rather appears that the sentence is on the lenient
side, particularly, where actions such as those committed
by the
Accused are not in the public interest and inclined to discredit the
judiciary in the eyes of the general public.
[78]
In the result the appeal against the conviction and sentence is
dismissed.
P
C VAN DER BYL
ACTING
JUDGE OF THE HIGH COURT
I
agree
B
R SOUTHWOOD
JUDGE
OF THE HIGH COURT
I
agree
G WEBSTER
JUDGE
OF THE HIGH COURT
ON
BEHALF OF THE APPELLANT:ADV E KILIAN
On
the instructions of:ALAN C KNIGHT ATTORNEYS
72
Gousblom Street Northmead BENONI
Ref:
Mr Knight Tel : 011 845 2411
c/o
COUZYN HERTZOG & HORAK ATTORNEYS
321
Middel Street Brooklyn
PRETORIA
Tel:
012 460 5090
ON
BEHALF OF THE RESPONDENT:ADV M K MALAPANE
DPP
(NG) SCCU-PRETORIA Tel: 012 401 0420/ 074 580 0613
DATE
OF HEARING: 25 July 2011
JUDGMENT
DELIVERED ON: 29 July 2011