About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2022
>>
[2022] ZANCHC 41
|
|
Kotole v S (CA&R35/22) [2022] ZANCHC 41 (12 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: CA&R 35/22
Reportable:
YES/NO
Circulate
to Judges: YES/NO
Circulate
to Magistrates: YES/NO
Circulate
to Regional Magistrates: YES/NO
Date
of Hearing: 10/08/2022
Date
of Delivered: 12/08/2022
SARAH
KOTOLE
Applicant
and
THE
STATE Respondent
Coram:
Tlaletsi JP et Lever J
Judgment
Lever
J
1.
This matter was referred to this court by the Magistrate for
the
District of CF MGCAWU sitting at Kakamas. The learned trial
Magistrate referred the matter for “special review”
under
what are thankfully rare and unusual circumstances.
2.
The accused in this matter has been charged with certain offences
relating to the possession of certain dangerous drugs. The accused
pleaded not guilty to the charges. The first State witness was
called, and during her testimony a trial-within-a-trial was ordered.
In the trial within a trial, the accused gave evidence. At
this stage
the interpreter who had initially commenced this case was not
available. The first State witness spoke Setswana and
the accused
spoke Sesotho and the proceedings were being conducted in Afrikaans.
3.
Mr Vilikazi, who initially interpreted these proceedings was
not
available for the proceedings on the 30 May 2022. On this date 2
casual interpreters were engaged. The first to interpret in
the
Setswana language and the second to interpret in the Sesotho
language. The casual interpreters were duly and properly sworn
in on
the date in question.
4.
As stated above, the accused gave evidence in the
trial-within-a-trial-proceedings,
during her cross-examination the
record of the transcript reveals that the Prosecutor put to the
accused that she was avoiding
or evading his questions. It emerged
from this process that the accused did not understand the Sesotho
interpreter.
5.
When this emerged, the learned trial Magistrate stopped the
proceedings and ordered Mr Vilikazi, the original and senior
interpreter to listen to the relevant recordings.
6.
Mr Vilikazi listended to the recording of the proceedings of
the 30
May 2022. He was then called as a witness by the learned trial
Magistrate on the 5 July 2022. After being sworn-in Mr Vilikazi
dealt
with the interpretation of the questions put to the accused and her
responses to such questions. Mr Vilikazi highlighted
several errors.
For present purposes, the body of Mr Vilikazi’s evidence is
best summed up by two questions put to him by
the learned trial
Magistrate and his responses to such questions. The relevant passages
of the transcript read as follows:
HOF:
“…Die belangrikste vraag in hierdie
saak is alles dui
daarop dat sover bly dit te wees as gevolg van die tolk situasie dat
daar ʼn moontlikheid is dat juffrou
Kotole in hierdie
omstandighede benadeel kan word.”
Mnr
Vilikazi: “Met daardie tolk Agbare ja,…”
HOF:
“Goed, my problem is net is (sic)
dat daar is nou volgens u is
daar reeds skade.”
Mnr
Vilikazi: “Agbare, ja Agbare. Die skade is alreeds
gedoen.”
7.
To paraphrase this for those not conversant in Afrikaans the
learned
trial Magistrate puts to the senior interpreter, Mr Vilikazi, that
the accused appears to have been prejudiced by the interpretation
of
proceedings. Although, this is not specifically set out in the quote
above, the context shows that it was the proceedings on
the 30 May
2022 that were being referenced in this passage. Mr Vilikazi responds
that in regard to a particular interpreter, there
was a problem.
8.
The learned trial Magistrate then puts to Mr Vilikazi that on
his
evidence before such court the damage had already been done. To this
Mr Vilikazi responds that the damage had already been
done.
9.
The referral of the present “special review” to
this
court took place before the trial-within-a-trial was completed. It
follows from this fact that such referral occurred before
conviction
in the matter and also before sentencing could take place.
10.
It follows
from the fact that the matter has been referred for special review
before conviction and sentence that the provisions
of sections 302,
304 of the CPA
[1]
do not apply.
It follows from the fact that there has not yet been a conviction and
the accused is not awaiting sentence before
this referral that the
provisions of section 304A
[2]
also have no application in the present circumstances.
11.
It appears
that the circumstances of the present matter must fall under the
provisions of section 22 of the Superior Courts Act
[3]
.
The said section reads as follows:
“
22(1) The
grounds upon which the proceedings of any Magistrates’ Court
may be brought under review before a court of
a Division are-
(a)
absence of jurisdiction on the part of the court;
(b)
interest in the cause, bias, malice or corruption on the part of the
presiding judicial
officer;
(c)
gross irregularity in the proceedings; and
(d)
the
admission of inadmissible or incompetent evidence or the rejection of
admissible or competent evidence.”
[4]
12.
In the circumstances of the present review, it needs to be determined
if the
failings in interpretation as described above, constitute a
gross irregularity in the proceedings.
13.
A similar
question was dealt with by Watermeyer J (as he then was) in a
criminal appeal in the matter of S v MAFU
[5]
relied on the provisions of section 6(2) of the Magistrates Court
Act
[6]
to conclude that a
failure to provide a competent interpreter to translate the evidence
into a language professed by the accused
is clearly a gross
irregularity vitiating the proceedings.
14.
Section 6(2) of the Magistrates Court Act is still applicable today
and the
said section reads as follows:
“
6(2)
If, in a criminal case, evidence is given in a language with which
the accused is not in the opinion of the
court sufficiently
conversant, a competent interpreter shall be called by the court in
order to translate such evidence into a
language with which the
accused professes or appears to the court to be sufficiently
conversant, irrespective of whether the language
in which the
evidence is given is one of the official languages or whether the
representative of the accused is conversant with
the language used in
the evidence or not.”
[7]
15.
Section 6(2) of the Magistrates Court Act is reinforced by the
subsequent provisions
of section 35(3)(k) of the Constitution, which
reads as follows:
“
35(3)
Every accused person has a right to a fair trial, which includes
the
right –
…
(k)
to be tried in a language that the accused person understands, or to
have the proceedings interpreted
in such language;…”
16.
If the interpreter has made mistakes or is incompetent to the extent
that the
accused has been prejudiced in and substantively deprived
her right to a fair trial. This constitutes a gross irregularity in
the
proceedings. In these circumstances, the proceedings ought to be
set aside and started
de novo
before a different judicial
officer.
17.
In the
present matter it is clear from the record that the interpreter
concerned was not competent, that this prejudiced the accused
and
that the accused had substantively been deprived of her right to a
fair trial. Accordingly, there was a gross irregularity
in the
proceedings as contemplated in section 22 of the Superior Courts
Act
[8]
. In these circumstances
the proceedings from the date of the plea to the date of referral for
review must be set aside.
In
the circumstances, the following order is made:
1)
The proceedings from the date of the plea to the date of referral
for
review are set aside; and
2)
The proceedings are to commence
de novo
before a different
judicial officer.
LG
Lever
Judge
Northern
Cape Division, Kimberley
I
agree,
LP
Tlaletsi
Judge
President
Northern
Cape Division, Kimberley
[1]
Criminal Procedure Act 51 of 1977
.
[2]
Above.
[3]
Act 10 of 2013.
[4]
Above.
[5]
S v Mafu
1978 (1) SA 454
(CPD) at 457H to 458A.
[6]
Act 32 of 1944.
[7]
Above.
[8]
Above.