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[2023] ZAECMKHC 84
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S v Ntose - Special Review (CA&R121/2023) [2023] ZAECMKHC 84 (4 August 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
Case No: CA&R121/2023
Delivered: 4 August
2023
In the matter between:
THE STATE
And
SIYABONGA NTOSE
SPECIAL REVIEW
JUDGMENT
BESHE J:
[1]
The Regional Magistrate, Gqeberha, placed the record of proceedings
in this matter before this court
for review presumably in terms of
Section 304
(4) of the
Criminal Procedure Act 51 of 1977
which
provides for a special review.
Section 304
(4)
provides that:
“
(4)
If in any criminal case in which a magistrate’s court has
imposed a sentence w
hich 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.
”
[2]
The proceedings were halted at the stage when the complainant was
still giving evidence. The accused
not having been convicted at that
stage, no sentence has been imposed. The complainant is a 17-year-old
female who is moderately
mentally challenged with the mental age of 6
to 9 years. She was testifying with the assistance of an intermediary
via the CCTV
in terms of
Section 170A
of the
Criminal
Procedure Act
>.
Section 170A(1)
in turn provides that:
“
170A
Evidence through intermediaries
(1)
Whenever criminal proceedings are pending before any court and it
appears to such court that it would expose any witness under
the
biological or mental age of eighteen years to undue mental stress or
suffering if he or she testifies at such proceedings,
the court may,
subject to subsection (4), appoint a competent person as an
intermediary in order to enable such witness to give
his or her
evidence through that intermediary.
”
[3]
The motivation for submitting the matter for review is encapsulated
in the Regional Magistrate’s
covering letter as follows:
“
The
court was in session doing a sexual offence case via an intermediary.
While the court was in session with the witness testifying,
another
prosecutor entered the room where the witness and the intermediary
were. She spoke to the intermediary not once but twice
till the
intermediary stated she was disturbed.
That is how the court was
alerted to the situation. The defence attorney objected to that since
the requirement is that only the
witness and the intermediary should
be in the CCTV room. The court agreed that this is the normal
practice.
Due to the request from
the defence not to create wrong impression to the accused, we decided
to send this matter for a directive
if what happened causes an
irregularity or not.”
It is not clear where
this “requirement” is provided for. It is also not clear
why the Presiding Officer was not aware
that another prosecutor had
entered the witness room on two occasions or why the Presiding
Officer did not intervene. Having been
aware of that fact, it is not
clear why the Presiding Officer did not enquire why the other public
prosecutor was in the witness
room and find out from the witness if
she was able to proceed with her evidence.
[4]
The prosecutor also made an application that the complainant should
testify in camera in terms of
Section 153
of the
Criminal
Procedure Act
which
provides that:
“
(1)
In addition to the provisions of
section 63(5)
of the
Child Justice
Act, 2008
, if it appears to any court that it would, in any criminal
proceedings pending before that court, be in the interests of the
security
of the State or of good order or of public morals or of the
administration of justice that such proceedings be held behind closed
doors, it may direct that the public or any class thereof shall not
be present at such proceedings or any part thereof.
(2) If it appears to any
court at criminal proceedings that there is a likelihood that harm
might result to any person, other than
an accused, if he testifies at
such proceedings, the court may direct—
(a)
that such person shall testify behind closed doors
and that no person shall be present when such evidence is given
unless his presence
is necessary in connection with such proceedings
or is authorised by the court;
(b)
that the identity of such person shall not be
revealed or that it shall not be revealed for a period specified by
the court.
(3) In criminal
proceedings relating to a charge that the accused committed or
attempted to commit—
(a)
any sexual offence as contemplated in
section 1
of
the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
, towards or in connection with any other person;
(b)
any act for the purpose of furthering the
commission of a sexual offence as contemplated in
section 1
of the
Criminal Law (Sexual Offences and Related Matters) Amendment Act,
2007
, towards or in connection with any other person; or
(c)
extortion or any statutory offence of demanding
from any other person some advantage which was not due and, by
inspiring fear in
the mind of such other person, compelling him to
render such advantage,
the court before which
such proceedings are pending may, at the request of such other person
or, if he is a minor, at the request
of his parent or guardian,
direct that any person whose presence is not necessary at the
proceedings or any person or class of
persons mentioned in the
request, shall not be present at the proceedings: Provided that
judgment shall be delivered and sentence
shall be passed in open
court if the court is of the opinion that the identity of the other
person concerned would not be revealed
thereby.
(3A) Any person whose
presence is not necessary at criminal proceedings referred to in
paragraphs
(a)
and
(b)
of subsection (3), shall not be
admitted at such proceedings while the other person referred to in
those paragraphs is giving evidence,
unless such other person or, if
he is a minor, his parent or guardian or a person in
loco
parentis
, requests otherwise.
(4) ...
(5)
Where a witness at criminal proceedings before any court is under the
age of 18 years, the court may direct that no person,
other than such
witness and his parent or guardian or a person in loco parentis,
shall be present at such proceedings, unless such
person’s
presence is necessary in connection with such proceedings or is
authorised by the court.”
The order issued by the
Magistrate in this regard was as follows:
“
Then
the court orders that the complainant can be taken to the room
itself, where she will be testifying through CCTV
.”
Nothing was said about
the proceedings being in camera and the implication thereof.
[5]
According to the record, the intermediary explained to the court that
she was being distracted by another
prosecutor who presumably wanted
to establish her availability for purposes of arranging a date in
respect of another matter. She
also stated that the matter was sorted
out and the prosecutor had since left.
[6]
There was no suggestion that the witness was flustered, upset or
affected by the exchange between the
intermediary and the other
prosecutor or the prosecutor’s presence in the room. Had the
Magistrate been vigilant and in charge
of the proceedings in her
court, this would have been averted by her calling the second
prosecutor to order. I am however not of
the view that this resulted
in an irregularity that vitiated the proceedings.
[7]
Be that as it may, it is worrisome that it is not clear whether the
proceedings were held in camera
as provided for in
Section 153
of
the
Act
. It is also of concern that there is no indication
from the record that an oath or affirmation was administered to the
intermediary.
The transcribed record reveals that after asking the
intermediary questions to establish whether she qualifies to be
appointed
as such, the learned Magistrate stated as follows:
COURT
:
Okay ma’am. Then after everything that you have given me, the
Court is convinced that you are a competent person as determined
by
the gazette, Ms Nolithando Cew and it finds that you can act as an
intermediary in this matter.
PROSECUTOR
:
As the Court pleases.
MS
KAPU
: As the Court pleases.
COURT
:
I have already sworn you in and now you can go and join the person
that side.
There is no indication
from the record that
Ms Cewu
, the intermediary was sworn in,
even for purposes of the enquiry into her suitability to act as an
intermediary. It is therefore
unclear what the Magistrate was
referring to when she said, “
I have already sworn you in . .
.
”.
[8]
I am therefore of the view that the proceedings were not in
accordance with justice and should be remitted
back to the Regional
Court to start
de novo
before another Magistrate. Even though
the accused has not been convicted and no sentence has been imposed,
in light of the anomalies
pointed out hereinabove, it will be
pointless and a waste of time to only review the proceedings at the
conclusion of the trial.
[9]
Accordingly, the matter is remitted back to the Regional Court for
the trial to start
de novo
before another Magistrate.
N G BESHE
JUDGE OF THE HIGH
COURT
BLOEM J
I agree.
G H BLOEM
JUDGE OF THE HIGH
COURT