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[2022] ZAFSHC 173
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S v White (R19/2022) [2022] ZAFSHC 173; 2022 (2) SACR 511 (FB) (17 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Special
Review no:
R19/2022
Hertzogville
Case no
: A162/2021
Reportable:
NO
Of
Interest to other Judges: YES
Circulate
to Magistrates: YES
In
the special review between:
THE
STATE
and
TEKO
WHITE
Accused
CORAM:
DAFFUE
J et MOLITSOANE J
JUDGMENT
BY:
DAFFUE J
DELIVERED
ON:
17
JUNE 2022
SPECIAL
REVIEW IN TERMS OF
SECTION 304
OF
THE
CRIMINAL PROCEDURE ACT, 51 OF 1977
I
INTRODUCTION
[1]
The accused was arraigned in the Hertzogville Magistrates’
Court on a charge
of contravening s 1(1)(a) of the Intimidation
Act.
[1]
He pleaded guilty
and was sentenced to payment of a fine in the amount of R1000.00 (One
thousand Rand) or 6 (six) months’
imprisonment, wholly
suspended for a period of 5 (five) years on condition that he is not
found guilty of contravention of section
2 and 3 of Act 72 of 1982,
committed during the period of suspension. The Senior
Magistrate of Welkom sent the matter to
the High Court as a special
review in terms of s 304(4) of the Criminal Procedure Act
[2]
(“the CPA”). I shall deal with the Senior
Magistrate’s concerns under the next heading where after I
shall
consider the factual background.
II
THE GROUNDS FOR REVIEW
[2]
The Senior Magistrate confirmed that the accused was legally
represented, that he
pleaded guilty on a charge of contravening s
1(1)(a) of the Intimidation Act, that his statement in terms of s
112(2) of the CPA
was handed in where after he was convicted and
sentenced.
[3]
The Senior Magistrate referred to
S
v Motshari
[3]
and stated that:
“…
the
offence created in section 1(1)(b) of the Act (the Intimidation Act)
was discussed as well as the specific purpose why this
offence was
enacted. The view was expressed that in matters involving
private quarrels the prosecution should rather charge
the accused
person with an offence such as assault where fear was induced.
It appears that the ambit of the offences created
in the Act is very
wide.”
The
Senior Magistrate clearly suggested, although not expressly conveyed,
that this court should consider interfering with the conviction
on
review and continued as follows:
“
Should
the Honourable Judge however be satisfied with the conviction, the
aspect of the sentence imposed needs to be addressed.”
The
suspension condition refers to ss 2 and 3 of the Intimidation Act
which is clearly incorrect insofar as these two sections deal
with
the repeal of laws and the short title of the Act. The Senior
Magistrate had referred the matter to the trial magistrate
before
sending the matter on review who confirmed in writing that she made
an error in referring to ss 2 and 3 instead of s 1(1)(a)
of the
Intimidation Act. The review court was requested to make
an appropriate order.
[4]
I agree that an obvious error has been made and that the sentence
should be reviewed
and corrected as suggested. The
more important question is whether this court should interfere with
the conviction.
This will be dealt with once some case law and
legal articles have been considered hereunder. Before then, I
am constrained
to deal with the factual matrix first. The
Senior Magistrate did not deal with the aspects to be mentioned and
the trial
magistrate’s input was also not obtained. But
the facts speak for themselves.
III
FACTUAL BACKGROUND
[5]
The charge sheet which I quote
verbatim
reads as follows:
“
THAT
the accused is/are guilty of the crime of contravening the provisions
of Section 1(1)(a) read with
Sections 2
and
3
of the
Intimidation Act
No 72 of 1982
– Intimidation
IN
THAT on or about 10/12/2021 and at or near Hertzogville in the
District of Boshof the accused did unlawfully and with intend
to
compel or induce any person(s), namely Tebogo Seboka to do or to
abstain from doing any act or to assume or abandon any standpoint,
to
wit not to date Palesa Dichakane by assaulting, injuring or causing
damage to such person(s)
or threatening to kill
, assault,
injure or cause damage to such person(s).”
[6]
The accused appeared in court on 20 January 2022. The typed
record indicates
that the prosecutor put the charge to him and the
operative part thereof reads as follows:
“
Intimidation:
in that upon or about 10 December 2021 and at or near Hertzogville in
the district of Boshoff the accused did
unlawfully with the intent to
compel or induce any person namely, Tebogo Seboka to do or abstain
from do any act or to assume or
abandon any standpoint to wit not to
date or speak to Palesa Dichakane by threatening to kill said Tebogo
Seboka.”
If
the charge sheet and the record are compared, the prosecutor intended
to delete the words “assaulting, injuring or causing
damage”
as well as the words “assault, injure or cause damage” as
they appear on the charge sheet. This
was not done. As
strange as it may appear, the words “
or threatening to kill”
were underlined. This is confusing. A prosecutor should
ensure that charge sheets are properly prepared. Those
words
that did not apply should have been deleted. More importantly,
the prosecutor failed to apply his/her mind to the facts
of the case
and ensure that the statutory provisions are properly recorded.
The operative part of the charge sheet should
have read as follows:
“…
.the
accused did unlawfully and with intent to compel Tebogo Seboka to
abstain from dating Palesa Dichakane by threatening to kill
him.”
The
words “to do” and “to abstain from doing” an
act are opposites. The same applies to the words
“to
assume” and “abandon” any standpoint. It must
be either the one or the other. In any event,
no “standpoint”
is applicable
in casu
. Matters got worse. In court
the same mistake was made when the charge sheet was read out, but the
prosecutor also
added the word “speak.” Therefore,
it was alleged that the accused threatened to kill the complainant,
not only
for dating Palesa Dichakane, but also speaking to her.
[7]
The accused pleaded guilty. His legal representative prepared a
statement in terms
of
s 112(2)
of the CPA. He regurgitated the
wording of the charge sheet to a certain extent. I quote from
paragraph 3.2:
“
I
did unlawfully and with intent to compel or induce the complainant
namely, T.S. Seboka to abstain from
not
dating Palesa
Dichakane or he will kill him by assaulting, injuring or causing
damage to such person or threatening to kill him.”
Does
this make sense? Certainly not. The accused also stated the
following:
“
2.1
On the 10/12/2021 I was hiking to Bloemfontein.
2.2
I met the complainant and we had
argument and I told him that I will kill him.
2.3
……
2.4
When I had argument with the complainant, I was very angry and told
him that I will kill
him because he interferes in the relationship
affairs of the girlfriend.”
[8]
The accused was convicted based on his plea of guilty and sentenced
to payment of
a fine of R1000.00 or six months’ imprisonment,
wholly suspended for a period of five years on condition that he is
not found
guilty of contravening
ss 2
and
3
of Act 72 of 1982
committed during the period of suspension. As mentioned, the
Senior Magistrate of Welkom sent the matter
to the High Court on
review and pointed out that the suspension condition was incorrectly
worded. He also raised a concern
about the statutory offence
with which the accused was charged and the consequent conviction.
I shall now refer to authorities
in order to consider the
applicability of s 1(1)(a) in somewhat trivial matters and/or where a
common law offence is applicable.
IV
LEGAL PRINCIPLES
[9]
I shall explain later herein that
s 1(1)(b)
of the
Intimidation Act
has
been declared unconstitutional, but it is apposite to quote
s
1(1)
in full. It reads as follows:
“
1
Prohibition of and penalties for certain forms of intimidation
(1)
Any person who-
(a)
without
lawful reason and with intent to compel or induce any person or
persons of a particular nature, class or kind or persons
in general
to do or to abstain from doing any act or to assume or to abandon a
particular standpoint-
(i) assaults,
injures or causes damage to any person; or
(ii) in
any manner threatens to kill, assault, injure or cause damage to any
person or persons of a particular
nature, class or kind; or
(b)
acts
or conducts himself in such a manner or utters or publishes such
words that it has or they have the effect, or that it might
reasonably be expected that the natural and probable consequences
thereof would be, that a person perceiving the act, conduct,
utterance or publication-
(i) fears
for his own safety or the safety of his property or the security of
his livelihood, or for the safety
of any other person or the safety
of the property of any other person or the security of the livelihood
of any other person; and
(ii) ......
shall
be guilty of an offence and liable on conviction to a fine not
exceeding R40 000 or to imprisonment for a period not exceeding
ten
years or to both such fine and such imprisonment.”
[10]
In
S
v Motshari
,
the judgment referred to by the Senior Magistrate, the accused was
charged with contravention of
s 1(1)(b)
of the
Intimidation Act. It
should immediately be recognised that the accused was not charged
with contravening this sub-section, but it is worthwhile to consider
what was stated in this regard. Notwithstanding the accused’s
plea of not guilty in
Motshari
,
he was convicted and sentenced to three years’ imprisonment.
In that case it was alleged that the accused threatened
to kill his
girlfriend. On review, the review court was concerned that the
charge was triggered by a “domestic quarrel
between
live-in-lovers which took place within the confines of their
dwelling.” The court contrasted the facts in that case
with a
case involving “riotous behaviour pertaining to an assembly of
people or a security situation or some industrial action.”
[4]
[11]
Kgomo J with whom Hefer AJ concurred, held in
Motshari
that the
Intimidation Act had
its genesis in the Riotous Assemblies
and Criminal Law Amendment Act,
[5]
that
s 1(1)(b)
of the
Intimidation Act was
introduced through the
Internal Security and Intimidation Amendment Act,
[6]
that the draconian penal provisions strongly militate against trivial
and ordinary run-of-the-mill cases having been within the
contemplation of the Legislature, that the provisions of the
Intimidation Act were
not applicable to the accused’s case,
that the common law sanctions should have been resorted to and that
the case could
in any event have been dealt with under the broad
provisions of the Domestic Violence Act.
[7]
[12]
Wallis JA, the scribe of the majority judgment in
Moyo
and another v Minister of Justice and Constitutional Development and
others,
[8]
dealt with the offence of intimidation. He held that
intimidation was a single offence which may occur in various ways,
but it did not detract from the fact that all of its manifestations
under both ss 1(1)(a) and (b) deal with intimidation and therefore
the penalties for offences under either sub-section (a) or (b) are
the same.
[9]
[13]
Although the majority held in
Moyo
that s 1(1)(b) was not unconstitutional, this judgment has been
overruled by the Constitutional Court. That court declared
s
1(1)(b) unconstitutional and invalid.
[10]
The Constitutional Court was not called upon to consider the
constitutionality of s 1(1)(a) and consequently merely referred
to
this sub-section in one sentence. I quote:
[11]
“
The
context of the provision (s 1(1)(b)) lends even less support to the
notion of an “imminent harm” qualification.
In the
legislative scheme itself, harm seems to be accounted for in s
1(1)(a). There the specific classes of physical harm
of death,
injury or damage are listed.”
[14]
In
S
v Holbrook
[12]
Leach J commented (Jennett J concurring) as follows, again pertaining
to s 1(1)(b), although two decades prior to the
Moyo
judgment:
“
This
section is so widely couched that it may well be construed that the
person who throws a cat into a swimming pool may well be
guilty of an
offence if the owner of the cat or any other person, pre-viewing the
event, would fear for the cat’s safety.”
The
learned judge emphasised his viewpoint in the following words: “It
certainly seems that relatively trivial cases may easily
fall foul of
the provisions of the sections, and more than ten years ago the late
Prof Matthews warned of the danger of that occurring
– see AS
Matthews
Freedom, State Security and Rule of La
w at 56 –
59. Moreover, as was remarked by Plaskett and Spoor in their
article
The New Offence of Intimidation
(1991) 12
ILJ
747
at 750, the section may potentially impact on normal and acceptable
political campaigning and debate, labour relations and everyday
life. For what it is worth, our prima facie view is that the
section is an unnecessary burden on our statute books and its
objectives could probably be attained by the enforcement of
common-law sanctions.”
[15]
I agree with the general tenor of the
dicta in Holbrook.
It
is not necessary to completely do away with sub-section 1(1)(a), but
it should be utilised in line with the purpose of
the Legislature,
bearing in mind the long title of the
Intimidation Act, that
is to
prohibit certain forms of intimidation, the extreme sentences that
may be imposed, the context in which the Act was promulgated,
and the
language used. There is certainly a place for it, but to use it
in trivial matters as
in casu
is unimaginable.
[16]
The authors of
South
African Criminal Law and Procedure
[13]
point out, approving the comments of the late Prof Mathews, that the
offence created by s 1(1)(a) covers a “spectrum of human
activity ranging from relatively innocuous conduct at one end to
serious behaviour at the other” and that much of the conduct
falling within the ambit of the offence is already subject to common
law crimes such as assault, extortion and malicious injury
to
property.
[17]
Prof CR Snyman
[14]
makes the
point that it is well known that intimidation is rife in South
Africa. According to him it is a pity that very
few people seem
to be prosecuted for the crimes created in the
Intimidation Act.
He
suggests that “one of the reasons for this is that many
people who would have been subjected to intimidation are, precisely
because of the intimidation, afraid of laying criminal charges of
intimidation or of testifying about the commission of the crime
in a
court.”
When
one considers Prof Snyman’s discussion on the subject, one
cannot, but think that the crime of intimidation was never
intended
to be applicable to the usual threats that appear every day between
members of the public, but with no real consequences
or harm.
According to Prof Snyman the purpose of the crimes of intimidation
“is to punish people who intimidate others
to conduct
themselves in a certain manner, such as not to give evidence in a
court, not to support a certain political organisation,
not to pay
their municipal accounts or to support a strike action.”
If one considers the examples given by the learned
author, he also
has in mind serious issues and not the normal run-of-the mill
threats.
[18]
The dearth of reported cases pertaining to
s 1(1)(a)
is indicative of
the approach by the prosecution not to use the
Intimidation Act to
charge an accused if any of the common law offences such as assault,
extortion or malicious damage to property apply to the unlawful
actions of an accused person. Such an approach would be
correct. One does not need a 10 kg sledgehammer to kill a fly.
If the prosecution is allowed to charge all persons in terms of the
Intimidation Act instead
of with appropriate common law offences,
these common law offences may just as well be done away with.
There is no reason
at all for this.
[19]
The only other reported case dealing with
s 1(1)(a)
is
S
v Ipeleng.
[15]
It
was not necessary to deal with the purpose of
s 1(1)(a)
in this case,
although the enquiry was whether the State had proven beyond
reasonable doubt that the appellant threatened to kill,
assault,
injure or cause damage to the complainants with the intention to
subject them to a stay-away action on the mine. The majority
found
that the State did not prove its case and consequently, the purposes
and rationale of the sub-section was not discussed.
Notwithstanding
the acquittal, there can be little doubt that the action allegedly
taken, but not proven, was sufficiently serious
to warrant
prosecution in terms of
s 1(1)(a).
V
A FINAL WORD ON THE EVIDENCE AND LEGAL PRINCIPLES
[20]
In his address in mitigation of sentence the accused’s attorney
placed on record that the
complainant wanted to withdraw the
complaint as he and the accused, apparently co-employees on a farm at
the time, had made peace.
[21]
I explained the broad ambit of
s 1(1)(a)
above and opined that the
sub-section should be used in deservingly serious matters only.
Although a person’s threat
to kill another if he does not
abstain from dating his girlfriend falls strictly speaking within the
broad ambit of
s 1(1)(a)
, the wording of the section may cause
problems to the prosecution wishing to rely on this statutory
offence. This is exactly
what happened
in casu
. I
quoted the charge sheet, the
s 112(2)
statement and the
viva voce
version in court and pointed out the discrepancies. These will
not be repeated, save to mention the following: the
charge
sheet is confusing and incorrectly worded insofar as its effect is
that the complainant should abstain from
not
dating Palesa
Dichakane. There is no indication in the
s 112(2)
statement
that the complainant was compelled or induced to abstain from doing
an act, to wit to date Palesa Dichakane. Again,
the word “not”
appears in paragraph 3.2 of the statement which was repeated when it
was read into the record, making
the same mistake as contained in the
charge sheet. One should perhaps not be too pedantic about
errors as detected, but the
seriousness of a conviction in terms of
the
Intimidation Act cannot
be ignored. If the prosecution
wants to rely on statutory offences, they should ensure proper
compliance with the particular
statute.
[22]
A final word should be expressed. It does not appear as if English is
the mother tongue of any
of the role players in the court
proceedings. If simple mistakes could be made as pointed out,
there was ample opportunity
for not only confusion about language,
but more importantly, legal principles such as whether the accused
really understood what
the offence of intimidation entailed.
[23]
In the circumstances I am satisfied that the proceedings before the
court a quo
were not in accordance with justice and need to be
set aside on review. The conviction is so clearly not in
accordance with
justice that the review court may deal with the
matter without obtaining a response from the trial magistrate as
provided for in
s 304(2)(a).
VI
ORDERS
[24]
Consequently the following orders are issued:
1.
The proceedings in the Hertzogville Magistrate’s Court under
case A162/2021
are reviewed and set aside.
2.
The conviction and sentence are set aside.
J.P.
DAFFUE J
I
concur
P.E.
MOLITSOANE J
[1]
72
of 1982
[2]
51
of 1977
[3]
2001
(1) SACR 550 (NC)
[4]
Motshari
loc cit
at
551 F - G
[5]
27 of 1914
[6]
138 of 1991
[7]
116 of 1998 and see paras 3, 6, 7, 8 & 13 on pp 551(i) –
556(c) of the judgment
[8]
2018 (2) SACR 313 (SCA)
[9]
Ibid
para 93
[10]
Moyo &
Another v Minister of Police & Others
;
Sonti &
Another v Minister of Police & Others
;
2020 (1) SACR 373
CC (22 October 2019) at para 81
[11]
Ibid
para 68
[12]
[1998] 3 All SA 597
(E) at 601c
[13]
South
African Criminal law and Procedure, vol III: Statutory Offences,
Jutastat e-publications, chapter HA1, pp 1 - 4
[14]
Criminal Law 6
th
ed at p 455
[15]
1993 (2) SACR 185
(T)