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[2024] ZAECMHC 15
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S v Gqesha (217810) [2024] ZAECMHC 15 (9 May 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MTHATHA
Case no: 217810
In
the matter between:
THE
STATE
and
MZWAKHE
GQESHA
Accused
REVIEW
JUDGMENT
ZILWA
AJ
[1]
This
is a review in terms of section 302 of the Criminal Procedure Act
[1]
,
(‘the CPA’). The accused was charged in the Tsolo
Magistrate’s Court for
assault
in that on or about 4 December 2023 in the district of Tsolo, he
intentionally
and unlawfully assaulted Ntombekhaya Gqesha, who happened to be his
wife, by hitting her with a spear.
[2]
In the court
a
quo
, the accused
conducted his own defence. He
pleaded guilty to the
charge and was convicted on his plea of guilty.
[3]
He was afforded an
opportunity to address the court in mitigation of sentence. In his
address he testified that he was a breadwinner
who was supporting his
wife and their grandchildren who were staying with them. The accused
was sentenced to undergo six months
imprisonment.
[4]
I note from the record, with concern, that it was only after the
accused was convicted
on his plea that the Magistrate inquired from
him if he was conducting his own defence. It is the right of the
accused to have
a fair trial which includes the right to have legal
representation, and to be informed of this right. Nowhere does it
appear on
the record of proceedings that the accused’s rights
to legal representation were explained to him.
[5]
A further cause for concern is
the type of language that
the
Magistrate used as he interacted with the accused after his
conviction– it
was unsavoury and
less of the standard of decorum expected from a Presiding
Officer. The episode unfolded as contained in the following passage:
“
ACCUSED
:
For us to eat at home, I am the one who is supposed to go and find.
COURT
:
Is it correct that the grandchildren
receive the grant for kids?
ACCUSED
:
Their mothers took their grant so that
they can find, collect and find clothes for them because my wife,
their mother is eating
the money, is not doing…(intervenes)
COURT:
If that is the position, the easiest way is to
send the kids to their mothers. You can’t maintain the kids if
they are clever
enough to claim such grant. Anything to say in
aggravation?
ACCUSED:
Will I say?
COURT:
No, you are a good howler. There is no need
to explain
.”
[6]
The interaction continued after
the accused’s conviction, as follows:
“
COURT:
Between the two of you, who took the spear?
ACCUSED:
The weapons at home are always there. When I
was about up, she jumped to me. I don’t know, I don’t
even know whether
I picked or I was carrying a spear, because I was
drunk.
COURT:
You
can’t equate the spear…[indistinct] it was with arms.
What is happening in your head
because that spear is supposed to be in the roof of a rondavel?
ACCUSED:
All the things are
staying in that same place. She is also a traditional healer. Her
stuff and my stuff … [intervenes].
COURT:
As she is a traditional healer, does she have
her own spear?
ACCUSED:
Her spear is at her home. We are only
having those knob kerries and … [indistinct].
COURT:
The Court is saying there is something wrong
in your head.
Why that spear for
instance is always down because it is supposed to be down only if it
is going to be used?”
[7]
At the end of the interaction between the Magistrate and the accused,
the Prosecutor
was given an opportunity
to
address the Court in aggravation of sentence. It is important
to quote his address
verbatim
as follows:
“
Your
worship, if I may the Court impose a sentence that will deter the
would be offenders from committing these offences. The State,
Your
Worship, is suggesting that the accused person be sentenced in terms
of Section 276(1)(f), may he be sentenced to a fine,
Your Worship,
the fine of R3000 Your Worship. And that fine, Your Worship, may it
be wholly suspended, Your Worship, considering
that, Your Worship,
during the commission of an offence, he also sustained injuries
caused by the complainant, Your Worship. The
complainant in this case
is not entirely innocent, Your Worship. May he be given a second
chance, Your Worship. It is up to him
if he is ready to change his
ways and decide to not be in conflict with the law.”
[8]
While I fully appreciate
the
fact that the Magistrate was at large not to accept the
Prosecutor’s proposal on sentence as sentence is a matter for
the
Court’s discretion, good basis in law had to be laid for
the Magistrate’s exercise of discretion in imposing any
sentence
that he deemed fit. Put differently, the sentencing
discretion must be exercised judiciously with a proper consideration
of any
fact as may be of relevance, and on the foundational
principles of the law on sentencing. The excerpt below captures the
Magistrate’s
ruling on sentence:
“
SENTENCE
The Court is going to
punish you severely for not respecting complainant’s rituals,
because after painting your flat you were
supposed to put back that
ritual spear. It is not supposed to be down, unless it is going to be
used, after painting your flat.
The Court does not agree with the
State that the last born depends on you because it is your evidence
that Nasiphe is maintaining
your last born in Cape Town. No, the last
born in particular. The one who is staying in your RDP house in Cape
Town. That is not
your dependent. You are sentenced to
UNDERGO SIX
(6) MONTHS IMPRISONMENT
, direct imprisonment without an option of
a fine. He is hard of hearing. Did he understand? No option of a
fine.”
[9]
I make three important observations regarding the proceedings in the
Court
a quo
. The first one is that the sentence imposed did
not include an option of a fine, and this is apart from the fact that
the accused
was unrepresented. The Magistrate was bound in this
regard by the provisions of sub paragraph (b) of section 112(1) the
Criminal
Procedure Act, 51 of 1977 (the CPA), and I quote them
hereunder:
“
(
b
)
the presiding judge, regional magistrate or magistrate shall, if he
or she is of the opinion that the offence merits punishment
of
imprisonment or any other form of detention without the option of a
fine or of a fine exceeding the amount determined by the
Minister
from time to time by notice in the
Gazette
, or if requested
thereto by the prosecutor, question the accused with reference to the
alleged facts of the case in order to ascertain
whether he or she
admits the allegations in the charge to which he or she has pleaded
guilty, and may, if satisfied that the accused
is guilty of the
offence to which he or she has pleaded guilty, convict the accused on
his or her plea of guilty of that offence
and impose any competent
sentence.”
[10]
Section 112(1)(b) of the CPA requires the
presiding officer to conduct questioning of an accused who pleads
guilty to the charge
for reasons including ascertaining whether the
accused admits all the elements of the offence with which he is
charged. This
j
udicial
questioning is a precaution against an injustice which may flow from
an unjustified plea of guilty. It serves to determine
whether
the accused admits the allegations in the charge sheet upon which
there was a guilty plea; and enable the Court to
conclude
whether the accused is, in fact, guilty.
[11]
Secondly, not only did the Magistrate fail to satisfy himself as to
the guilt of the accused,
it appears from the record that he failed
to appreciate the fact that, after all, the accused may have had a
defence. There was
a stage when the prosecutor ‘cross examined
the accused’ after his mitigation of sentence. It is not clear
whether
before this stage, the accused had indicated his intention to
give evidence under oath whereupon he would be cross-examined.
[12]
What is of importance is that the information that was elicited from
the accused during the ostensible
cross-examination, brought to light
facts which required the Magistrate to correct the plea to that of
not guilty. Below I provide
an extract of the purported cross
examination:
“
PROSECUTOR
:
I see, sir, I see that you are injured in your
face. What happened?
ACCUSED:
That time I was fighting with my wife..
PROSECUTOR:
What did she do to you?
ACCUSED:
As we were struggling in the room, I fell and
then she got on top of me.
PROSECUTOR:
So you mean to say you hit her and she fought
back?
ACCUSED:
Yes, she retaliate when we got
into argument. She usually will be the one who would jump to me
first.
PROSECUTOR:
She jumped to you and hit
you with what?
ACCUSED:
I think we were struggling
and I have consumed alcohol and then I fell on my back. She stumbled
on me and fell on top of me.
PROSECUTOR:
She fell on top of you or did she hit you with
something? So you are not sure whether she used that glass to hit
you.
ACCUSED:
I am not certain because I lost
conscious when I fell on my back of the head. I am not sure.
PROSECUTOR
:
Thank you, sir. I was asking this question because it is not
reasonably possible that the accused person did not …(indistinct)
injured by just falling on his back.
ACCUSED:
I think it is glasses because there were
glasses in the room that we were in. Maybe she took one of those
glasses.
PROSECUTOR:
Thank you.”
[13]
I hold the view that what the accused stated during his ostensible
cross-examination by the prosecutor
necessitated the correction of
his plea of guilty to that of not guilty as his answers reveal a
defence. This would then call upon
the prosecution to prove its case
against the accused beyond reasonable doubt. Section
113
of the CPA is applicable in this regard, and it provides:
“
(1)
If the court at any stage of the proceedings
under section 112 (1) (
a
)
or (
b
) or
112 (2) and before sentence is passed is in doubt whether the accused
is in law guilty of the offence to which he or she has
pleaded guilty
or if it is alleged or appears to the court that the accused does not
admit an allegation in the charge or that
the accused has incorrectly
admitted any such allegation or that the accused has a valid defence
to the charge or if the court
is of the opinion for any other reason
that the accused’s plea of guilty should not stand, the court
shall record a plea
of not guilty and require the prosecutor to
proceed with the prosecution: Provided that any allegation, other
than an allegation
referred to above, admitted by the accused up to
the stage at which the court records a plea of not guilty, shall
stand as proof
in any court of such allegation.
(2)
If the court records a plea of not guilty under subsection (1) before
any evidence has
been led, the prosecution shall proceed on the
original charge laid against the accused, unless the prosecutor
explicitly indicates
otherwise.”
[14]
I add that had the Magistrate exercised caution and questioned the
accused on the allegations
put to him through the charge he sought to
plead guilty to, it is not far-fetched to state that he would not
have been satisfied
as to his guilt.
[15]
Inasmuch as sentencing stage is inquisitorial in nature, what the
Magistrate sought to do after
the purported cross examination of the
accused by the prosecutor is worrisome. This appeared from the
following passage of the
record:
“
COURT:
Okay continue. I have got questions based on
your questions. According to your – stand up. According to your
understanding,
are you a troublesome person when you are drunk?
ACCUSED:
I am not a troublesome person, even now we got
into this trouble because she came back at 10, coming back from the
house where they
were preparing …[intervenes]
COURT:
Between the two of you, who took the spear?
ACCUSED:
The weapons at home are always there.
When I was about up, she jumped to me. I don’t know. I don’t
even know whether
I picked or I was carrying a spear, because I was
drunk.
COURT:
You cant equate the spear …[indistinct]
it was with arms. What is happening in your head because that spear
is supposed to
be in the roof of a rondavel?
ACCUSED:
All the things are staying in that same place.
She is also a traditional healer. Her stuff and my stuff
…[intervenes].
COURT:
As she is a traditional healer, does she have
her own spear?
ACCUSED
:
Her spear is at her home. We are only having those knob kieries and …
[indistinct].
COURT:
The Court is saying there is something wrong in
your head. Why that spear for instance is always down because it is
supposed to
be down only if it is going to be used?
ACCUSED:
It was up there in a flat room, a kind of a
flat but I put it down when I was painting, but I forgot to put it
back.
COURT:
Are you – was that by not putting it
back, you were cooking unfortunes?
ACCUSED:
Yes, that’ s
correct.
COURT:
Yes, Ms Nkewu. That is all.”
[16]
Despite the answers by the accused when ‘cross-examined by the
prosecutor’, the Magistrate
put questions of his own to the
accused which, according to him, arose from those of the prosecutor.
By any stretch of imagination,
this is a travesty of justice.
[17]
In the context of these proceedings, the Magistrate ought to have
questioned the accused at two
stages – when the accused pleaded
guilty for the purposes of satisfying himself that the guilty plea
was justified; and during
mitigation to elicit all relevant facts and
information that would aid an appropriate sentence. The latter is in
line with the
inquisitorial nature of the sentencing stage as the
issue regarding the accused’s innocence or guilt would have
fallen away.
[18]
Thirdly, the Magistrate sought
to sentence the
accused for something he was not
charged for. He made it clear in his ruling that he was not punishing
him for the assault
but for not
respecting complainant’s rituals
.
This is an injustice of the highest order. This is something that
should not be allowed to happen in our Courts especially to
unrepresented accused who are not in position to challenge such
injustices.
[19]
I emphasize that the language used by the Magistrate is quite
concerning and was in fact degrading
to the accused. It is an
accepted fact that presiding officers wield enormous power resulting
from judicial authority. It
is not expected of a presiding officer to
reduce a litigant in court, least of all, an accused, to a figure
that is less of a human
being. The presiding officer has a duty to
ensure that litigants in proceedings presided over by him/her are
treated courteously
and not made to feel threatened and in any way
that may inhibit the conduct of their cases.
[20]
It needs to be emphasized further that as judicial
officers, we cannot expect members of the public to respect the Bench
if we do
not accord them similar reverence. Each one of us can find
himself in the dock at any given moment. All it takes is for someone
to make allegations against us, and we will need people to treat us
with respect.
[21]
The authority we are endowed with as judicial officers is from the
public and it is not meant
to intimidate it, but to dispense justice
to its members with respect and humility. We are not in these
positions because we are
indomitable. If we did not dispense our
service, there would be others doing exactly what we are doing and
maybe even better. When
the time comes, we will be replaced, and
justice will continue being meted out to the public in our absence.
[22]
One does not lose his esteem because he is in the dock. It was not
necessary at all for the Magistrate
to utter the words he uttered to
the accused and in the process belittling him.
It can never be justified for the Magistrate to label the
accused as a
good howler
and further telling him
that
there is something wrong in his head
. This
type of language can never be acceptable in our Courts even if it
comes from the Bench.
[23]
I accordingly find the language of the Magistrate to be distasteful,
insultive and demeaning
to the dignity of the Court, and it amounted
to dehumanizing the accused. His conduct is egregious.
[24]
In
Re
Chinamasa
[2]
Gubbay CJ referred to and quoted what was said by Hope JA in the
Australian case of Attorney-General per New South Wales
v Mandley
(1972) 2 NGWLR 887 AT 908 as follows:
"There
are no more reasons why acts of courts should not be as trenchantly
criticised as the acts of public Institutions, including
Parliaments.
The truth is of course that public institutions in a free society
must stand upon their own merits: they cannot be
propped up if their
conduct does not command respect and confidence of a community; if
their conduct justifies the respect and
confidence of a community
they do not need the protection of special rules to shield them from
criticism'
[25]
It is clear from the above passage that the conduct similar to the
one displayed by the Magistrate
could – if left unchecked and
unabated – lead to a complete erosion of respect and confidence
that the public have
towards our Courts. It is for this reason that
conduct such as this one should be nipped in the bud, so to speak,
wherever it raises
its ugly head. It is also for this reason that the
conduct of the Magistrate concerned deserves referral to the legal
body he is
accountable to for appropriate
action to be taken, if needs be.
[26]
The proceedings in the court
a quo
are fundamentally flawed,
they do not pass legal scrutiny. Clearly, there has been an injustice
on the accused’s part who,
as at the time this review was place
before would already have served more than half of his custodial
sentence. In so far as the
conviction of the accused is concerned, it
falls foul of sections 112(1)(b) and 113 of the CPA.
[27]
No point would be served, in the circumstances of the present case,
in remitting the matter to
the district court for the proceedings to
start
de novo
before another Magistrate. The accused had been
unjustly caused to serve a direct term of imprisonment in
circumstances where he
did not receive a fair trial.
It is for this reason that his immediate release should be
ordered. The interest of justice dictates that the sentence which the
accused has already served is more than enough as he should have been
given a suspended sentence or a fine, in my considered view.
[28]
In the circumstances I shall issue the following order:
a) The
conviction and sentence of the accused are set aside.
b) The
head of the correctional facility where the accused is currently
detained is hereby directed to release
him forthwith.
c) The
Registrar is directed to refer this judgment to the Magistrates
Commission for investigation on whether
the utterances by the
Magistrate referred to in this judgment do not amount to misconduct.
H.
ZILWA
ACTING
JUDGE OF THE HIGH COURT
I
agree
L.
RUSI
JUDGE
OF THE HIGH COURT
Review
Date
9 May 2024
[1]
51
of 1977
[2]
Re
Chinamasa
2001 (2) SA 902
at 914D