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[2022] ZAMPMBHC 88
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S v Mashaba (R29/2022) [2022] ZAMPMBHC 88 (8 December 2022)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
HIGH
COURT REF NO: R29/2022
MAGISTRATE
CASE NO. K164/2022
(REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
OF
INTERESTS TO MAGISTRATES: YES
REVISED.
08
December 2022
In
the matter between:
THE
STATE
And
SAMORA
KANSAS MASHABA
(THE ACCUSED)
REVIEW
JUDGMENT
RATSHIBVUMO
J
[1].
This is a
bizarre case in which a man who did not stand trial or face any
charge, found himself being convicted and sentenced by
a court of
law. How this came about would be difficult to explain as there is
not even a proper record of proceedings that captured
the events of
22 July 2022 at Nkomazi District Court held at Komatipoort. The
presiding Magistrate noted that the court recording
machine was not
operational that day. What is contained in the file falls short of
long hand recording of the proceedings. The
file content is referred
to by the Magistrate as “a record reconstructed from the
notes”. There is no explanation as
to why there was a need for
the record to be reconstructed or who else took part in the
reconstruction besides the magistrate herself.
[2].
What can be
gleaned from the submitted “reconstructed record” is that
the accused was summoned to appear in court on
22 July 2022 in order
to face a charge of contravening section 31(1) of the Maintenance
Act, no. 99 of 1998 (the
Maintenance Act); following
his failure to
comply with an order made against him to make payments for
maintenance of a child. Before this matter was called,
the accused
approached the Public Prosecutor and made arrangements that he would
pay off the amount in arrears totalling R6 000.00
in two
instalments of R3 000.00 each. The first payment was to be made
later that day and another one to be made in September
2022, which
was just over a month away. The Public Prosecutor was happy with this
arrangement and called the case for a postponement
to allow the
accused to pay the maintenance arrears.
[3].
When the case
was called, the Public Prosecutor informed the court of the
arrangement he reached with the accused and requested
it to confirm
this and if he admitted that he owed R6 000.00 in arrears for
maintenance of the child. In the process of asking
this, things took
an about turn when out of nowhere, the accused suddenly heard the
court pronounce that he was found guilty as
charged and he was called
upon to address it in mitigation.
[4].
When the
Public Prosecutor was invited to address the court for sentencing
purposes, he had no submissions to make. At this stage
of
proceedings, the Magistrate contemplated converting the “trial”
into an inquiry in terms of
section 41
of the
Maintenance Act. She
invited the Public Prosecutor to comment on this, but the offer was
not accepted, as the State made no submission in this regard.
The
court then decided on its own to convert the proceedings into an
inquiry as envisaged. For some unexplained reason, the accused
was
still sentenced with the “reconstructed record”
reflecting, “see J15 for sentence.” I suppose the
Magistrate meant J605 instead of J15.
[5].
The following
is reflected as the sentence on J605:
“
Accused
fined R6 000.00 (six thousand rand) or 6 (six) months
imprisonment. [Sentence amended in terms of
S 298
of CPA 51/1977].
Matter converted to a Maintenance Court in terms of
S 41
of the
Maintenance Act 99/1996 (sic
). Arrears deferred: R2 000.00 on
the 29/07/2022 and R4 000.00 on/before 29/09/2022.”
[6].
After reading
this inscription several times, I still struggle to understand the
sentence imposed on the accused. Is the fine of
R6 000.00 the
outcome of the sentence after it was amended in terms of
section 298
of Act 51 of 1977? If not, what is the amended sentence? I can only
wonder if the clerks of the court who had to implement this,
understood it any better. It seems the Magistrate realised after
imposing the sentence that after the conversion of a “trial,”
the accused should not have been sentenced. She may have decided to
order the accused to rather pay the maintenance arrears instead.
The
inscription does not reflect this though, I merely make presumption
from the words, “arrears deferred.” It is not
clear as to
whether the order to pay the arrears amount is over and above the
fine or it was meant to be the new sentence she referred
to when she
wrote, “see J15 for sentence”. But surely an order to pay
the arrears amount cannot be construed to be
a sentence.
[7].
Of importance
though is that the Magistrate decided to have the matter sent on
special review. This must have been in terms of
section 303(4)
of the
Criminal Procedure Act, no. 51 of 1977
. The covering letter thereof
is dated 25 July 2022. It is not clear as to what caused her to
submit the matter on review or whether
her hand was forced by any
other person. She however raised a query as to whether it was
procedurally correct for an accused to
be convicted through merely
admitting the elements of a crime without the State putting a charge
against him and without affording
him a chance to plead. In
conclusion, she concedes by remarking that the proceedings were not
in accordance with the law. She only
fell short of asking that they
should be set aside.
[8].
Office of the
Director of Public Prosecutions (the DPP) Mpumalanga, was requested
to opine on the proceedings and the query raised
by the Magistrate.
The Court is indebted to Adv Mpolweni, the Deputy Director of Public
Prosecutions who together with Adv Lusenga,
submitted comprehensive
views. This judgment acquired its shape from their profound
submissions. It suffices for present purposes
to state that the DPP
agrees that the proceedings were not in accordance with justice and
that they should be set aside.
[9].
It is
important to note that the DPP understood the sentence that was
imposed as “a fine of R6 000.00 or six months’
imprisonment.” This conclusion was reached by the DPP without
any trouble involving the interpretation reflected in paragraph
6
above. This amplifies my worry on how the Clerk of the Court
understood the sentence to be.
[10].
Some
of the basic rights enshrined in our Constitution are contained in
section 35 which provides,
[1]
“
Every
accused person has a right to a fair trial, which includes the right,
To
be informed of the charge with sufficient detail to answer it.
To
have adequate time and facilities to prepare a defence.
To
adduce and challenge evidence.”
[11].
These basic
rights need to be read alongside the provisions of
section 105
of the
Criminal Procedure Act, which
provides,
“
105
Accused to plead to charge
The
charge shall be put to the accused by the prosecutor before the trial
of the accused is commenced, and the accused shall, subject
to the
provisions of
sections
77
00
0000">
,
85
and
105A
,
be required by the court forthwith to plead thereto in accordance
with
section
106
.”
[12].
When a
criminal trial does not commence through the charge(s) being put to
the accused and affording him an opportunity to plead
thereto,
everything that follows is not a trial in term of the laws of the
country. A trial that is not preceded by a charge being
put and the
accused pleading is a mistrial, a gross irregularity and a
misdirection on the part of the presiding officer. It is
this
misdirection that invites interference by the Review Court without
any further consideration.
[13].
In
S
v Gumbi and Others,
[2]
Ponnan JA said,
“
In
terms of
s 105
the charge must be put to an accused by the prosecutor
before the trial is commenced. As soon as the charge is put to
an accused
he or she must plead to it. The plea determines the ambit
of the dispute between the accused and the prosecution. It is only
after
the accused has pleaded to the charge that the
lis
is established between the accused and
the prosecution. It is the function of the prosecuting authority, not
the court, to decide
the charges upon which an accused should be
brought to trial and the function in that regard extends up to the
time when a
plea is tendered and the decision has to be made whether
the plea is to be accepted or not.”
[14].
Ponnan
JA also referred with approval to
S
v Mamase and Others
[3]
where the Supreme Court of Appeal said,
“
At
the time that the issue was raised and decided in the court below the
appellants had not been asked to plead. Thus there was
no plea in
terms of
s 106(1)
(f)
of
the CPA that raised the absence or presence of jurisdiction as a
justiciable issue for decision. A plea in criminal proceedings
is
peremptory in terms of
s 105
and it is done in terms of
s 106(1)
and
(2). It is therefore clear that the point that was
decided was not an objection to the indictment, was not a reservation
of a question of law and was not a plea of lack of jurisdiction.”
[15].
It is clear
from the above that the proceedings were irregular and should be set
aside. I have also noted that the State did not
take part in the
prosecution and the conviction of the accused which appear to have
come from one source being the court. In so
doing, the Magistrate
failed to promote the judicial independence which stems from the
separation of powers, with the prosecution
authority on one side and
the judicial one on the other. The Magistrate also failed to protect
the accused’s constitutional
rights in this matter. She could
have simply refused a request for a postponement if the that did not
appeal to her. This would
have afforded the State an opportunity to
choose between withdrawing the charges or commencing with the trial
through putting the
charges against the accused.
[16].
The last issue
of some great concern to the court was not raised in the special
review. It is with regard to the passing of the
sentence even after
the trial was converted into an inquiry in terms of
section 41
of the
Maintenance Act. The
said section provides as follows,
“
41.
Conversion of criminal proceedings into maintenance enquiry.
If
during the course of any proceedings in a magistrate’s court in
respect of-
(a)
an offence referred to in
section
31(1)
; …
it
appears on good cause shown that it is desirable that a maintenance
enquiry be held, the court may, of its own accord or at the
request
of the public prosecutor, convert the proceedings into such enquiry.”
[17].
The enquiry
referred to above would be as provided in
section 10
of the
Maintenance Act. The
kind of orders that the court can issue are to
be found under
section 16
of the same Act. A sentence can only be
imposed after a criminal trial and not after an enquiry. It was
another misdirection on
the part of the Magistrate to impose a
sentence after the conversion of the “trial” into an
enquiry.
[18].
This is one of
the cases that expose the need for continuous peer training on the
part of the judiciary. Mistakes such as this have
a potential to
bring the judiciary into disrepute and can cause grave injustice to
members of the public with serious repercussions
to judicial
officers, including but not limited to being sued. It is incumbent
upon members of the judiciary to always remember
the oath of office
we took, in which we swore to protect every citizen’s rights
enshrined in the Constitution and apply justice
to all without fear,
favour and prejudice. Every case we handle in court should be
accorded the necessary weight because while
it may appear to be a
trivial matter in our view, it could mean everything to the litigants
appearing before us.
[19].
I suppose this
case also signifies the need to have well trained and experienced
magistrates to preside in Family or Maintenance
Courts. For too long,
these courts have been neglected alongside the Traffic Courts as
courts where only the inexperienced magistrates
would be allocated to
work. It is in these courts where persons of various classes of our
community, some of whom, very popular
often appear. Unless this trend
is changed, the embarrassment that flows from the inaction could just
be beginning. I will refer
this matter to the Chief Magistrate,
Mpumalanga so that she is able to identify the areas of need when it
comes to training of
judicial officers including but not limited the
one who presided over this case.
[20].
I therefore propose the following
order.
[20.1]
The conviction and sentence are set aside.
[20.2]
The Registrar should make a copy of this judgment available to the
Chief Magistrate, Mpumalanga.
TV
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
I
agree
D
GREYLING-COETZER
ACTING
JUDGE OF THE HIGH COURT
08
DECEMBER 2022
[1]
See section 35(3)(a), (b) & (i) of the Constitution of the
Republic of South Africa.
[2]
2
018
(2) SACR 676
(SCA) at para 10.
[3]
2010
(1) SACR 121
(SCA) at para 7.