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[2023] ZAFSHC 385
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S v Khomo and Others (R33/2023(B)) [2023] ZAFSHC 385; 2024 (1) SACR 73 (FB) (3 October 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case Number:
R33/2023(B)
Reportable: YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between: -
THE
STATE
and
CAROLINE
KHOMO
ACCUSED
NO.1
MOSIUWA
STEPHEN MOKHELE
ACCUSED
NO.2
TSEKO
MAKHATA
ACCUSED
NO.3
TEBOHO
NTHOLI
ACCUSED
NO.4
CORAM:
MOLITSOANE, J et MATSHAYA, AJ
JUDGMENT BY:
MATSHAYA, AJ
DELIVERED
ON:
3
OCTOBER 2023
INTRODUCTION
[1]
This matter serves before us ‘purportedly’ as a special
review in terms of
section
304(4) of the Criminal Procedure Act
(the CPA).
[1]
I shall elaborate further on this later. The accused persons are
facing a charge of murder and kidnapping before the magistrate’s
court for the district of Ficksburg. From the record of
the
proceedings,
it appears that one Mr Mohale appeared for the state. Accused no.1
was legally represented by Mr Radebe and the rest
of the accused by
Ms
Motsoeneng. After a prolonged formal bail application, they were all
granted bail.
BACKGROUND
[2]
The Senior Prosecutor (Ms. Maponya) at Ficksburg Magistrate’s
Court addressed a letter dated
3 March 2023 under the emblem of the
National Prosecuting Authority of South Africa (NPA) to Mr Mralasi,
the Judicial Head of Court,
Ficksburg citing some perceived
“irregular procedure by the presiding officer.” To give a
full picture of her concerns
it is important to quote the relevant
extracts
verbatim
as I hereby do:
“
1.
2.
3.
4.
5. The judicial
officer did not follow the procedure prescribed by section 60(11) B.
6. Further she
granted bail without giving state opportunity
[sic] to address regarding conditions and quantum.
7. This is a
gross irregular procedure and not in accordance with Justice.
8.
9. This judicial
officer
does not understand the criminal procedure
.
She [sic]
commits criminal procedure blunder after blunder.
This case is just a tip of an iceberg.”
My underlining.
[3]
It is presumed that the
above
letter was forwarded by Mr Mralasi to the presiding magistrate Ms
Ramohlale who wrote a covering letter in which she elected
to abide
by her reasons as enunciated in her judgment. Hence the matter serves
before us. We have had the benefit of the full transcribed
record of
the bail proceedings which gives a pure picture thereof.
RELEVANT
LEGISLATION
[4]
Section
304(4) of the CPA
[2]
provides:
“
If in any
criminal case in which a magistrate’s court has imposed a
sentence which is not subject to review in the ordinary
course in
terms of section 302 or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial
or local
division having jurisdiction or any judge thereof that the
proceedings in which the sentence was imposed were not in accordance
with justice, such court or judge shall have the same powers in
respect of such proceedings as if the record thereof had been laid
before such court or judge in terms of section 303 or this section.
”
[5]
The above is viewed
generally
as
the
empowering legislation upon which matters are sent on special review.
The High Court has statutory
[3]
and inherent powers to review the decisions of the lower courts
within its jurisdiction. In the case before us, no sentence was
imposed as envisaged in s
304(4)
of the CPA
to trigger the mechanism set out in the said section. The simple
reason is that the proceedings were about the release of the accused
on bail.
Section
304(4)
is thus not applicable. The review is also not before us pursuant to
the provisions of s
22
of the Superior Courts Act
.
[6]
The Court in
Ex
Parte Millsite Investments Co (Pty)
[4]
described the inherent jurisdiction of the then Supreme Court as
follows:
“ …
apart
from powers specifically conferred by statutory enactments and
subject to any deprivations of power by the same source, a
Supreme
Court can entertain a claim or give any order which, at common law,
it would be entitled to entertain or give. It is to
hat reservoir of
power that reference is made where in various judgments Courts have
spoken of the inherent power of the Supreme
Court…The inherent
power is not merely derived from the need to make the court’s
order effective, and, and to control
its own procedure, but to hold
the scales of justice where no specific law provides directly for a
given situation.”
This
special review will thus be dealt with by us by virtue of the
inherent powers this Court has, to review any proceedings of
the
lower courts
.
THE MAIN ISSUE FOR
DETERMINATION
[7]
The crux of this matter is whether the
presiding magistrate committed an irregularity in relation to
section
60(11)B of the CPA
[5]
which should vitiate the proceedings.
THE
COMPLAINT BY THE STATE
[8]
In summary, Ms Maponya submitted the
following:
[6]
·
That the investigating officer testified that the accused had
previous
convictions;
·
That the accused deliberately concealed same;
·
That the
magistrate did not follow procedure in terms of
section
60(11)B
of
the
CPA
;
[7]
·
That bail was granted without giving the state the opportunity to
address
the court regarding the conditions and quantum; and
·
That this was a gross irregular procedure and not in accordance with
justice.
[9]
It seems from the record that there was a
dispute regarding the exact schedule under which the matter
fell but
the proceedings were conducted under the auspices of schedule 6. This
is not an issue in these proceedings but I shall
give guidance later
on this aspect in view of the manner in which it was handled.
[10]
The main gripe by the state is the alleged failure
by the magistrate to follow the procedure prescribed
by
section
60(11)B of the CPA
which provides that:
“
(a)
In bail
proceedings the accused, or his or her legal adviser, is compelled to
inform the court whether -
(i) the accused has
previously been convicted of any offence; and
(ii) there are any
charges pending against him or her and whether he or she has been
released on bail in respect of those charges.
(b) Where
the legal adviser of an accused on behalf of the accused submits the
information contemplated in paragraph
(a), whether in writing or
orally, the accused shall be required by the court to declare whether
he or she confirms such information
or not.
(c) The
record of the bail proceedings, excluding the information in
paragraph (a), shall form part of the record of
the trial of the
accused following upon such bail proceedings: Provided that if the
accused elects to testify during the course
of the bail proceedings
the court must inform him or her of the fact that anything he or she
says, may be used against him or her
at his or her trial and such
evidence becomes admissible in any subsequent proceedings.
(d) An
accused who wilfully -
(i) fails or
refuses to comply with the provisions of paragraph (a); or
(ii) furnishes the
court with false information required in terms of paragraph (a),
shall be guilty of an
offence and liable on conviction to a fine or to imprisonment for a
period not exceeding two years
.”
[11]
It is difficult to comprehend what Ms Maponya
envisaged by “
procedure prescribed by
section
60(11) B
.”
Subsection
(a) places a duty on the accused to disclose previous
convictions and or pending cases, if any. Subsection (b) places an
obligation
upon the court to confirm the above disclosure in the
event that it had been done by the legal representative of the
accused.
Subsection
(c) mainly provides that the court must inform the accused of
the consequences of testifying during the bail application and that
the record of bail proceedings shall form part of the subsequent
trial while subsection (d) provides for the consequences in the
event
that the accused was mendacious pertaining to the disclosure
mentioned in subsection (a) above.
[12]
It appears from the hand written record that on 17
January 2023 a disclosure as envisaged in
section
60(11)B
was made in respect of accused 2-4. It also appears that accused no.1
has no previous convictions and no pending cases.
[8]
The fact that accused no.2 did not disclose his previous conviction
of pointing of firearm cannot be perceived as an irregularity
particularly on the part of the presiding officer. If the state (in
their view) is of the conviction that bail should not have
been
granted for that reason, this is not the appropriate forum to
ventilate such as that cannot be conceived to be an irregularity.
Section
60(11) (B)(d)
creates an offence. It is thus the prerogative of the prosecution and
not the judicial officer to institute criminal proceedings
against an
accused who wilfully fails to comply with the peremptory statutory
obligations of s60(11) (B).
[13]
The record clearly shows that both legal
representatives of the respective applicants succinctly addressed
the
court. This was followed by 2 days of address by Mr Mohale after
which the case was remanded for judgment. Upon a cursory browse
of
the record, it is apparent that the magistrate duly exercised her
discretion and granted bail. It is settled law that the decision
to
grant or refuse bail rests in the discretion of the court. The
contention by Ms Maponya that the prosecutor was not afforded
an
opportunity to address the court before bail was granted is not
supported by the record. The personal circumstances of the applicants
and their means to afford bail as well as the version of the state
pertaining to the circumstances of the case were already on
record
hence the magistrate was able to determine the amount thereof.
[14]
In view of the above, the submissions by Ms
Maponya that the ‘
procedure was grossly irregular
’
lacks merit and there is no basis upon which the proceedings can be
perceived to be irregular. In any event, there were
no grounds for
the matter to be sent on special review.
THE
CORRECT PROCEDURE
[15]
It is the duty of this court to give guidance particularly when
review matters have not been handled properly
like the present case.
Section 304
envisages a specific dispensation which acts as a
remedy when there has been procedural irregularities that may vitiate
the proceedings.
In this case there was no such. Instead, the record
reveals that the state was aggrieved by the decision of the
magistrate which
was reached after proper exercise of her discretion.
The correct route for the state to have pursued was an appeal. High
courts
should not be burdened by unmeritorious matters which are not
properly brought before them and judicial heads of courts in the
magistrate’s court should guard against disguised “appeals”
like this one. Any matter that is referred to the
High Court on
special review ought to be sent under the covering letter of the
judicial head of court who would have satisfied
himself/herself that
indeed the matter is one for special review. It cannot be correct
that whenever a party is aggrieved by magistrate’s
judgments
then matters are forwarded to the high court willy-nilly as it
happened in this case.
THE
TONE OF THE LETTER BY MS MAPONYA
[16]
The tone of Ms. Maponya’s letter is regrettable.
She is not the one who appeared in court during the bail
proceedings.
It is trite that in this constitutional dispensation the NPA enjoys
independence from other spheres of government.
[9]
Ms. Maponya is the most senior member of the NPA in Ficksburg
magistrate’s court and the community that she serves as a
‘people’s lawyer’ expect a certain level of
professionalism from her. This also entails treating other
stakeholders
like the judiciary with the respect that they deserve.
Irrespective of the position that she holds in the NPA, she had no
right
to cast aspersions on the competency or otherwise of the
magistrate that “
she
does not understand the criminal procedure and commits blunder after
blunder
.”
This statement is very unfortunate, unbecoming and has to be rebuked.
If she had any concerns about Ms. Ramohlale there
were more
civilized, professional and structured protocols that she should have
followed to address them, if she had any.
[17]
Further, if she opined that Ms. Ramohlale committed ‘
blunder
after blunder
’, which opinion we have shown to be baseless
and unmeritorious in this case,
one
would have expected that she ought to have known the remedies
available to her or the state for proper redress instead of resorting
to rude and unprofessional language. The Code of Conduct for members
of the National Prosecuting Authority, promulgated under
s22(6)
of
the
National Prosecuting Authority Act, 1998
imposes a positive
obligation on the prosecutors to, inter alia, “
conduct
themselves professionally, with courtesy and respect to all and in
accordance with the law and recognized standard and ethics
of their
profession.”
[18]
A magistrate (like Ms. Ramohlale in this case) represents the
judiciary arm of government and its authority
is vested in
section
165 of the Constitution
.
[10]
The buck stops with her in court and she has a duty to maintain
proper decorum which is seriously threatened by the unfounded insults
that were labelled against her. I do not suggest that a magistrate
must never be criticized during the exercise of her duties but
the
manner of doing so must be respectful and professional. Anyone may
hold a different view regarding decisions of a magistrate
but Ms.
Maponya’s utterances cannot be condoned. This judgment and the
whole record of proceedings which includes the letter
by Ms. Maponya
must be forwarded to the Director of Public Prosecutions (DPP) to
sensitize other prosecutors particularly Ms. Maponya
regarding proper
language to be used for official purposes and acceptable ethical
standards.
LESSONS
TO BE LEARNT BY THE MAGISTRATE
[19]
It would be remiss not to highlight a certain aspect which came to
our attention upon reading of the record
which has the potential to
tarnish the image of the magistracy. There is a general perception
that magistrate courts do not sit
on Fridays or adjourn early at the
expense of serving members of the public. Such perceptions find
credence on the following utterances
by the presiding magistrate
during the proceedings of 24 February 2023:
“
Magistrate:
Okay. Thank you. Mr Mohale. I see now the time is 15:00 and Mr Mohale
you are the first one that is going to argue…
Prosecutor: …
Ms Motsoeneng…
Magistrate: And the
parties Mr Radebe, both of you will be given an opportunity to argue.
But we are already at 15:00 in the afternoon
on a Friday
.
Can we then agree on a date for arguments? Even if Mr Radebe you
argue we can give you a chance to argue now. You will be the
only one
arguing because we are knocking off at 16:00.”
My
underlining.
[20]
The above comments by the magistrate were preceded by
her similar comments on the same matter on 10 February when
she said:
“
Prosecutor:
Your Worship, I also see now it is four minutes just to give a
warning to the Court as we had agreed that we are adjourning
at
three.
Court: At 3 o’clock.
Mr Radebe, how many questions do you still have so that we can
wrap this up and then Ms Motsoeneng
will be the one starting on the
15
th
.”
Mr Radebe…
Court: Yes, we can
postpone for further cross examination. I was hoping that you are
maybe nearly at the end.”
The case was then remanded for
further bail hearing.
[21]
The above remarks by the magistrate display little or no
appreciation to utilise available court time optimally.
Her
hurriedness and impatience to the parties that is informed by the
fact that it was a Friday is a cause for concern. It took
the
persistence of the parties for the matter to proceed until address by
both Mr Radebe and Ms Motsoeneng was done and concluded
before the
matter was adjourned to a future date. The reference by Ms Ramohlale
to a
Friday
gives the impression that the court should adjourn
early because it’s a Friday. It is generally accepted that
court time
starts at 9h00 to 16h00 on any court day.
[22]
Furthermore, paragraph 5.1(vi) of the
Norms
and Standards
[11]
states that:
“
Judicial Officers
should make
optimal use
of available resources and
time
and strive to prevent fruitless and wasteful expenditure
at all
times
.” My underlining.
[23]
The prescripts are unambiguous that judicial officers
should utilise court hours optimally and finalize cases
expeditiously
inclusive of Fridays. The Cluster Head, Sub-Cluster Head and the
judicial head of office in Ficksburg ought to ensure
that compliance
to the Norms and Standards is adhered to so as to achieve their
objectives.
[12]
[24]
Bail proceedings are urgent in nature because continued
detention of the accused has the effect of infringing
and or limiting
the detainee’s right to freedom of movement as enshrined in
section
21(1) of the Constitution
.
The period it took from start to finalisation of this bail
application is a cause for concern.
[13]
Without any doubt Ms Ramohlale needs to improve on this aspect.
[25]
There are many aspects in this case in which there is
room for Ms Ramohlale to improve as a judicial officer.
For example,
she went beyond mere questioning expected of the court and literary
cross examined the investigating officer, Capt.
Lebakeng.
[14]
I do not want to bore this judgment and dwell much on those except to
direct that the record of the bail proceedings be forwarded
to the
Cluster Head to identify areas of her possible improvement. Equally,
there are aspects where Mr Mohale could possibly improve
regarding
the manner in which he conducted his case. Just as a guide, his
contention for a pre-meditated murder which was on the
face of it,
not supported by an inch of evidence at that stage. We leave that in
the capable hands of the DPP.
CONCLUSION
[26]
Despite the above concerns regarding the manner in which
the bail application was conducted by the affected parties,
there is
no merit on the contention that the proceedings were grossly
irregular. Consequently, I propose the following order:
ORDER
(a)
The bail proceedings were in accordance with justice.
(b)
The registrar of this court is ordered to forward a copy of this
judgment to the DPP
Bloemfontein and to the Acting Chief Magistrate,
Bloemfontein Cluster for their attention.
M.M. MATSAHAYA, AJ
I agree and it is so
ordered.
P.E. MOLITSOANE, J
[1]
Act
51 of 1977.
[2]
Supra.
[3]
Section 22
of the
Superior Courts Act 10 of 2013
provides: “The
grounds upon which the proceedings of any Magistrates’ Court
may be brought under review before a
court of a Division are-
(1)
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial officer;
(c)
gross irregularity in the proceedings; and
(d)
the admission of inadmissible or incompetent evidence or the
rejection
of admissible or competent evidence.”
[4]
1965(2) SA 582(T) at 585 G-H.
[5]
Supra.
[6]
Paragraphs
3, 4, 5, 6 and 7 of Ms. Maponya’s letter dated 3 March 2023.
[7]
Supra.
[8]
See
testimony of Capt Lebakeng on page 8 of the transcribed record.
[9]
See
section 179 of the Constitution of the Republic of South Africa
1996.
[10]
Supra.
[11]
Issued
by the Chief Justice of the Republic of South Africa in terms of
section 8
of the
Superior Courts Act 10 of 2013
read with section
165(6) of the Constitution.
[12]
Paragraph
4 of the Norms and Standards.
[13]
It
appears from the record that the bail application commenced on 17
January and judgment delivered on 2 March 2023.
[14]
Page
22-29 of the record.