About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2022
>>
[2022] ZALMPPHC 40
|
|
S v Chirihoru and Others (35/2022;36/2022;37;2022;38;2022;39/2022;40/2022;41/2022;42/2022;43;2022;44/2022;45/2022;46/2022;47/2022;48/2022) [2022] ZALMPPHC 40 (19 July 2022)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Rev:35/2022;36/2022;37;2022;38;2022;39/2022;40/2022;41/2022;42/2022;43;2022;44/2022;45/2022;46/2022;47/2022;48/2022
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
In
the matter between:
THE
STATE
And
PETER
CHIRIHORU
ACCUSED
TAZVIGUTA
NETSAYI
ACCUSED
RESERE
PINASHE
ACCUSED
LANGENI
NYARAI
ACCUSED
FELISTAS
MUROMBEDZI
ACCUSED
BRIGHT
MATSIKITI
ACCUSED
BINDU
BRIVIDEDGE
ACCUSED
JOSEPH
CHAPETA
ACCUSED
PRISCA
DANGAISO
ACCUSED
NYANDEBVU
MERCY
ACCUSED
CHARLES
CHUNU
ACCUSED
ISAAC
LEVOY
ACCUSED
BENJAMIN
ZEMBERI
ACCUSED
MBONISI
SIBANDA
ACCUSED
JUDGEMENT
KGANYAGO
J
[1]
All the fourteen accused have been charged separately with the same
offence of contravention of
section 9(3), 9(3)(b), 9(4), 9(A), 31,
32, 34 and 43 of the Immigration Act 13 of 2000 – Read with the
provisions of
section 1(1)
and
49
(1)(a) of the
Immigration Act 13 of
2002
. All the accused appeared before Magistrate Ungerer of Polokwane
magistrate court on different dates. Peter Chirihoru up to Nyandevhu
Mercy have pleaded guilty to an offence in terms of the Immigration
Act 13 of 2000, but were convicted in terms of
section 49
of the
Immigration Act 13 of 2002
. Peter Chirihoru was sentenced to a fine
of R500.00 or one month’ imprisonment, whilst Tazviguta Netsayi
up to Nyandevhu
Mercy were sentenced to a fine of R1000.00 or one
month’ imprisonment. The matters of Charles Chunu up to Mbonisi
Sibanda
were struck off the roll.
[2]
The senior magistrate has discovered these discrepancies during her
routine check-up, and is of the
view that the accused have been
convicted of a non-existent offence. The senior magistrate in her
memo to the reviewing Judge has
stated that after she discovered
these discrepancies, she brought them to the attention of the chief
prosecutor and presiding magistrate.
The presiding magistrate
informed the senior magistrate that in her view, the conviction and
sentence were in accordance with justice,
since the conviction was in
terms of
section 49
of the
Immigration Act 13 of 2002
.
[3]
The prosecution corrected the discrepancies by redrafting the charge
sheet on other accused (Charles
Chunu and 3 others) who appeared
later before court. However, despite the charge sheet been redrafted
in a new format, the presiding
magistrate struck off those matters
from the roll by recording that “
Mrs Phooko-Base has a
grievance on
reports the charge sheet.”
That led to
the senior magistrate bringing these matters on special review.
[4]
All the accused in these matters were charged with a statutory
offence. It is trite that an accused
has a right to know at the
outset what charge he/she has to meet. It is incumbent on the State
to specify the case to be met in
such a way that an accused
appreciates properly not only what the charges are but also the
consequences. (See
S
v Makatu
[1]
).
When an accused is facing a statutory offence, that will entail
referring to the correct statutes, and correct sections of the
statutes when formulating the charges.
[5]
All the accused whom their matters were not struck off the roll have
pleaded guilty to an offence in
terms of the Immigration Act 13 of
2000 instead of Immigration Act 13 of 2002 (the Act). However, they
were convicted in terms
of section 49 of the Act. It is clear that
the charge sheets which were formulated against the accused were
defective. Section
86 of the
Criminal
Procedure Act
[2]
(CPA) empowers the court to order an amendment of a defective charge
at any time before judgment if the amendment will not prejudice
the
accused. It shows that court a quo had noticed that the charge sheet
was defective hence it convicted the accused in terms
of section 49
of Act. However, the conviction was without the charge sheets been
properly amended in terms of section 86 of the
CPA.
[6]
Section 35 (3) (l) of the
Constitution
of the Republic of South Africa Act
[3]
provides that every accused person has a right to fair trial, which
includes the right not be convicted for an act or omission
that was
not an offence under either national or international law at the time
it was committed or omitted. The accused have pleaded
guilty to
non-existent offence, but convicted of an offence that they have not
pleaded guilty to, and without the court following
the correct
procedures provided for in section 86 of the CPA by amending the
charge sheet. In my view, it was irregular of the
court a quo to have
convicted the accused of the offence they have not pleaded to without
the charge been properly amended. The
accused did not get a fair
hearing and the proceedings in the matters of Peter Chirihoru up to
Nyandevhu Mercy were not in accordance
with justice, and stand to be
reviewed and set aside.
[7]
Turning to the matters that have been struck off roll, which are
those of Charles Chunu up to Mbonisi
Sibanda. It appears that these
matters were struck off the roll after the discrepancies in the
matters Chirihoru and others were
addressed with the presiding
magistrate by the senior magistrate. It further appears that the
presiding magistrate did not agree
with the address by the senior
magistrate when notified that the conviction of the ten
abovementioned accused were not in accordance
with justice, as they
have pleaded guilty to a non-existent offence. The basis to struck
off these matters from the roll was to
show her disagreement with the
senior magistrate. However, what the presiding magistrate had
overlooked, was that the charge sheets
were no longer in the same
format as the ones which were used when she convicted the other ten
accused. The prosecution had drafted
the charge sheet in a new format
which was now referring to the correct statute.
[8]
It was incumbent upon the presiding magistrate to have dealt with the
matter in terms of the charge
sheet that was before her, and not the
disagreement which she had with the senior magistrate. What the
presiding magistrate has
stated as reasons to struck off the matters
from the roll were something out of the facts of the case, and in my
view were unwarranted.
The reasons given by the presiding magistrate
when she struck off the matters from the roll have an element of
defiance to her
seniors. Part of the duties of the senior magistrate
is to conduct routine checks on finalised matters in the form of
judicial
quality assurance. If one magistrate does not agree with the
outcome of that quality assurance, there are other avenues to follow
in expressing your disagreement, rather than to do what the presiding
magistrate did in the court a quo and express her disagreement
by
turning it into a public spat in an open court. The conduct of the
presiding magistrate in the court a quo was unbecoming of
a judicial
officer and had the potential of bringing the administration of
justice into disrepute.
[9]
It was gross irregular for the presiding magistrate to have struck
off the four matters from the roll
on the basis of the disagreement
which she had with the senior magistrate. This court understands the
conditions and pressure under
which the lower courts operates, but
that is not a ground for one to ventilate his/her frustrations in an
open court in the manner
in which the presiding magistrate did. It
follows that the proceedings were not in accordance with justice, and
stand to be reviewed
and set aside.
[10]
In the result I make the following order:
10.1 The conviction and
sentence of Peter Chirihoru up to Nyandevhu Mercy, and struck off
matters of Charles Chunu up to Mbonisi
Sibanda are reviewed and set
aside.
10.2 The matters are
referred back to the magistrate court for a trial de novo before
another magistrate should the prosecution
still wish to pursue these
matters.
10.3 Copy of this
judgment be sent to the Magistrate Commission for their attention.
KGANYAGO
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
I
AGREE
NAUDE-ODENDAAL
J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION,
POLOKWANE
Electronically
circulated on : 19
TH
JULY 2022
[1]
2006
(2) SACR 582
(SCA) at 585i-j
[2]
51
of 1977
[3]
108
of 1996