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[2023] ZAFSHC 423
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S v P.T.G - Review (R44/2023) [2023] ZAFSHC 423 (27 October 2023)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NUMBER: R44/2023
In
the matter between:
THE
STATE
AND
P[…]
T[…] G[…]
REVIEW
JUDGMENT
CORAM:
VAN ZYL, J
et
BALOYI-MERE
JUDMENT
BY:
BALOYI-MERE AJ
DELIVERED
ON:
27
OCTOBER 2023
Introduction
1.
This is a review in terms of section 302 of
the Criminal Procedure Act 51 of 1977 (“the CPA”) which
section is aimed
at ensuring the validity and fairness of the
convictions and sentences of unrepresented accused in lower court
proceedings.
2.
The Accused, Mr P[…] T[…]
G[…] was charged for contravening section 30(1) of the
maintenance Act 99 of 1998
as Amended by failing to make payment of
maintenance towards the minor child of R700.00 per month for a period
between February
2023 to August 2023. The Accused was charged in the
Magistrates Court for the District of Fezile Dabi at Frankfort in the
Free
State Province. The Maintenance Court at Franfort had, on the
22
nd
October 2021, made an order for the periodical payment of sums of
money to wit R700.00 per month towards maintenance of the
beneficiary.
At the time of this proceedings, the amended arrears
amount that the Accused owed towards maintenance was R5 700.00.
3.
The Accused was not legally represented and
therefore this is a review in terms of section 302(3)(a) of the Act.
4.
Accompanying the record of the proceedings
in the lower court was a letter from the Acting Magistrate,
Frankfort, Mr EL Matlou which
referred to the fact that the Accused
in the matter in question conducted his own defence and that the
proceedings were conducted
in terms of section 112(1)(b) of the Act
and that the sentence imposed by the Magistrate is automatically
reviewable. It is for
those reasons that this matter is under review.
5.
Upon perusal of the record, I found that
there were procedural irregularities that resulted in the miscarriage
of justice.
The
Accused’s Plea of Guilty
6.
Before
the charge could be properly put to the Accused, the presiding
officer had already informed the Accused that he must just
plead
guilty as the court wanted to finalize the matter on that particular
day.
[1]
The Magistrate said:
“
It
is obvious you are pleading guilty, to the effect, you are having
arrears.”
7.
Section
105 of the Act provides that, at the commencement of a trial it ought
to be explained, in brief and understandable terms,
to undefended
Accused what it entails to plead either guilty or not guilty.
[2]
The presiding officer should also explain to the undefended Accused
the procedure to be followed upon his plea, for example, questioning
in terms of section 112 where a plea of guilty has been tendered.
[3]
This was clearly not explained to the Accused before the Accused was
told that it is obvious that he should plead guilty and this
was
procedurally irregular.
8.
For this reason only the sentence imposed
by the Magistrate falls to be set aside.
Legal
Assistance to Accused
9.
The
Constitution of the Republic of South Africa, 1996 provides in
section 35 that every accused person has a right to a fair trial
which fair trial includes the right to choose and be represented by a
legal practitioner, and to be informed of the right promptly
[4]
and to have a legal practitioner assigned to them by the state and at
the state expense if substantial injustice would otherwise
result and
to be informed of this right promptly.
[5]
10.
The presiding officer enquired from the
Accused whether he can afford his own legal representative or he
would like to be represented
by Legal Aid or if he wants to proceed
on his own and the Accused chose that he wanted the assistance of the
Legal Aid practitioner
who was present in court. Upon enquiries with
the legal practitioner who was in court, Miss Makabene, she indicated
that she was
willing to assist but she would request a postponement
as she needs to familiarize herself with the file and consult with
the Accused.
The Presiding Magistrate then proceeded to indicate that
if the matter were to be postponed he would have a problem because he
wanted to finalize this matter.
“
Court:
So the question is, she is willing to assist you. This is Ms
Makabene.
Accused: Sorry.
Court: She is willing
to assist you, but it is not going to be today, so if she assists
you, you want the matter to be postponed,
or you want the matter to
be finalized today. The choice is yours.
Accused: Let us rather
have it finalised today.
Court: Today?
Accused: yes.
Court: So, you can do
it without her?
Accused: Yes sir.
Court: And then you
are pleading guilty?
Accused: Yes sir”
11.
It is clear from the quoted passage that
the Accused was pressured into proceeding on his own and conducting
his own defence and
pleading guilty.
12.
In
the matter of
S
v Ramulifho
[6]
the Supreme Court of Appeal confirmed its earlier viewpoint as set
out in
S
v May
[7]
:
“
Whether
or not prejudice has resulted from the lack of legal representation
is really a question that can be determined only by
having regard to
the whole trial, and the way in which it was conducted by the
judicial officer; and the ability, as shown during
the course of the
trial, of the accused to represent himself adequately; and to whether
the evidence adduced has led justifiably
to the conviction and
sentence.”
13.
In
S
v Phala
[8]
it was held that section 73(2)(A) was couched in peremptory terms and
that a Magistrate’s failure to give effect to the provision
of
s
73(2)(A)(e)
had constituted an irregularity.
14.
The conduct of the proceedings before the
Magistrates Court was tainted by irregularities which renders that
the conviction and
sentence should be set aside.
15.
In the result:
15.1
Both the conviction and sentence are set
aside.
15.2
The matter is remitted back to the
Magistrates Court to start
de novo
before a different Magistrate.
EM
Baloyi-Mere AJ
I
agree
C
VAN ZYL J
[1]
Record
page 3 line 12.
[2]
State
v Balatseng
2005 (2) SACR 28
(B).
[3]
State
v Bafokeng
2013 (1) SACR 143
(FB) at par 19.
[4]
Constitution,
section 35(3)(f).
[5]
Section
35(3)(g).
[6]
2013
(1) SACR 388
(SCA).
[7]
2005
(2) SACR 331
(SCA) at par 8.
[8]
Unreported ECG case number 20110161,( 30 November 2011)