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[2022] ZAECMHC 21
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S v Mdutyana (100/2022;217706) [2022] ZAECMHC 21 (26 July 2022)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE DIVISION
– MTHATHA)
REPORTABLE: YES
CASE NO: 100/2022
REVIEW NO: 217706
CONSIDERED ON:
21/07/2022
DELIVERED: 26/07/2022
In the matter between:
THE STATE
and
MADODOMZI
MDUTYANA
ACCUSED
REVIEW JUDGMENT
NOTYESI
AJ
INTRODUCTION
[1]
This matter came before this court by way of an automatic review from
the District
Court of Mt Ayliff. The accused was charged on one
count of contravening the conditions of a domestic violence order.
During
his trial, he was unrepresented. He had pleaded guilty to the
charge. His plea explanation in terms of section112 (1)(b) of the
Criminal Procedure Act 51 of 1977 (“
the CPA
”) was
rejected by the Magistrate. The Magistrate convicted and sentenced
him to a 2-year imprisonment without an option of
a fine on 20 May
2022.
[2]
The particulars of the charge against the accused were set out as
follows:
‘
The
accused is guilty of the offence of contravening the provisions of
section 7(1) read with section 17 of the Domestic Violence
Act 116 of
1998 (“
the
Domestic
Violence Act
&rdquo
;).”
In that upon or about
13/04/2022 and at or near Bhetshwana in the District of Mt Ayliff,
accused to wit Madodomzi Mdutyana did unlawfully
and intentionally :
contravene a prohibition, condition, obligation and/or order to wit
entering complainants homestead by the
name G[....] M[….]
whereas he was stopped from doing so, imposed on him in terms of a
Protection Order to wit 242/2020 that
was made and issued by the
Magistrate of Mt Ayliff on the 13/11/2020 and duly served on him/her
on the 13/11/2020.’
BRIEF FACTUAL MATRIX
[3]
The accused first appeared before the District Court on 19 April
2022. He was unrepresented.
He had been in custody. The record
shows that he elected to conduct his own defence. The charge sheet
has an attached prescribed
form which contains rights about legal
representation. The handwritten notes of the Magistrate regarding
what transpired on the
first court appearance is to this effect –
‘
The
accused is before court and in custody. Elects to be in person.
State is opposed to bail at this stage due to investigations.
Case is postponed to 29 April for bail consideration. Accused
remanded in custody.’
[4]
On 29 April 2022, the case was again postponed due to lateness of
hour to 6 May 2022.
The handwritten notes of the magistrate
state that the accused will be conducting his own defence. He
was once again remanded
in custody. On 6 May 2022, the case was
further postponed to 11 May 2022. Again, on 11 May 2022, the
case was postponed
to 13 May 2022. On 13 May 2022, the case was
again postponed to 20 May 2022. It was endorsed to proceed before
another presiding
officer. In each of these court postponements,
there is no indication from the record that the accused was asked
whether he had
not changed his mind regarding legal representation.
This court has found no record to suggest that the accused was
informed about
the seriousness of the offence, the benefits of legal
representation and the availability of legal aid and its independence
from
the state. These are all crucial obligations for the court,
especially, when dealing with an unrepresented accused person.
[5]
At the commencement of the trial on 20 May 2022, the accused was
still unrepresented.
The prosecutor proceeded to put the charge to
the accused. The magistrate asked the accused about his plea to the
charge. Below
are some of the questions by the court to the accused
in this regard:
Court: Sir, when you
first appeared and legal rights were explained to you, you indicated
that you are conducting your own defence
in the matter.
Accused: Yes, Your
Worship.
Court: Did you
understand the charge which has just been preferred against you?
Accused: That is
correct. Your Worship.
Court: What is your
plea?
Accused: I plead
guilty Your Worship.
Prosecutor: The State
accepts the plea, Your Worship, and makes an application that Court
proceeds to establish from him the reasons
why he is guilty so that
he does not raise a valid defense, Your Worship.
[6]
Subsequent to the plea of guilty, the prosecutor requested the court
to ask questions
from the accused to test the validity of his plea.
Indeed, the court proceeded to question the accused. The records show
that the
magistrate had prior to questioning the accused, informed
him that if he is not satisfied that his explanation does not amount
to a plea of guilty, in the sense that he is not admitting all the
elements of the offence, then a plea of not guilty would be entered
on his behalf. The consequence would be that, once the plea of not
guilty is entered, then the State would have to call witnesses
to
prove the case. In such an event, whatever admissions that the
accused could have made during questioning would be entered
in terms
of section 220 of the CPA as formal admissions.
[7]
It is timely to refer to some of the questions and answers that the
magistrate had
posed to the accused. I quote from the record:
Court: Do you know the
person by the name of G[....]?
Accused: Yes, Your
Worship.
Court: What is she to
you?
Accused: She is my
mother.
Court: Did she at any
stage apply for a protection order against you?
Accused: That is
correct, Your Worship.
Court: Do you still
recall when was that?
Accused: I am not –
I do not remember quite well.
Court: Do you still
recall what were the terms of the protection order?
Accused: Yes, I do.
Court: What was it?
Accused: I was told
that I am not needed at home so I should stop going there. I was told
not to come next to my mother because
she can come to court and claim
that I have done something to her if I did come next to her.
Court: Do you confirm
that the said order you are talking about was issued here in Mt
Ayliff court on 13 November 2020 and was served
to you?
Accused: I do, Your
Worship. I confirm.
Court: Now, on 13
April 2022, tell the Court what happened which led to you being
arrested, briefly.
[8]
The accused thereafter gave a narration of what had happened in
relation to the case,
and I deem it unnecessary to repeat.
Importantly for purposes of this review, I extract the relevant
questions and answers
below:
Court: Do you admit
that it was unlawful of you to enter those premises, knowing that
there was a protection order ordering you
not to enter?
Accused: I do. Your
Worship, but I thought it was even a thing of the past.
Court: Do you admit
that you intentionally contravened the protection order issued on 13
November 2020 by the Mt Ayliff Magistrate?
Accused: Not
intentional.
Court: Yes, why do you
say so?
Accused: I used to go
at home, Your Worship and it was not my first time going there on
that day and I was there for the whole week,
and I was not going to
stay for long. I was going to go up.
Court: Did the
protection order issued against you allow you to enter the
complainant’s premises if you are going to enter
them for a day
or a week?
Accused: It does not,
Your Worship.
[9]
Pursuant to the questioning of the accused as set out above, the
court rejected the
accused’s explanation and decided to accept
the plea of guilty. He was thereafter found guilty of contravening
the conditions
of a domestic violence order. The court sentenced the
accused after hearing submissions regarding mitigation of sentence.
He was
sentenced to an effective term of 2 years without an option of
a fine.
[10]
During addresses regarding sentence, the prosecutor had handed to
court two exhibits, the court
order of 13 November 2020 and the
record of previous convictions.
DISCUSSION
[11]
The Constitution of the Republic of South Africa, 1996, provides in
section 35(3) of the CPA
that every accused person has the right to a
fair trial. In
S
v Zuma and Others
[1]
the Court held:
“
The
right to a fair trial conferred by that provision is broader than the
list of specific rights set out in parts (a) and (j) of
the
subsection. It embraces a concept of substantive fairness which is
not to be equated with what might have passed muster in
our criminal
courts before the Constitution came into force. In S v Rudman and
Another; S v Mthwana
1992 (1) SA 343
(A), the Appellate Division,
while not decrying the importance of fairness in criminal
proceedings, held that the function of a
Court of criminal appeal in
South Africa was enquire “whether there has been an
irregularity or illegality, that is a departure
from the formalities,
rules and principles of procedure according to which our law requires
a criminal trial to be initiated or
conducted”.’ A court
of appeal is now enjoined to enquire whether the trial was fair in
accordance with notions of
basic fairness and justice, or with the
ideas underlying the concept of justice which are the basis of all
civilised systems of
criminal administration
”
[2]
[12]
The right to a fair trial includes the right to legal representation.
The accused has a right
to legal representation of his own choice or
a legal representative at the expense of the state if he cannot
afford his own. He
must be informed of this right promptly. The
record under review reveals an unsatisfactory state of affairs in
this regard. On
the first court appearance of the accused, the
handwritten notes of the magistrate merely state:
“
Accused
is before court and in custody. Elects to be in person. State is
opposed to bail at this stage due to investigations. Case
is
postponed to 29/04/2022 for bail consideration. Accused to remain in
custody
.”
[13]
There is an annexure which is attached to the charge sheet marked A
which is titled
RIGHTS
WITH REGARD TO LEGAL REPRESENTATION.
It
is not easy to infer from this form that the accused was adequately
advised of his right to legal representation. It is
the duty of the
court to ensure that the accused fully understands the right to legal
representation and to make an informed decision
whether to seek legal
representation or not. In
S
v Cornelius and Another
[3]
the court confirmed the following:
“
The
exercise of the right to legal representation is of critical
importance in any trial, as it is the only source through which
the
other rights can be effectively exercised
.”
[14]
The accused in this case had appeared before court at least four
times before the commencement
of his trial on 20
May 2022.
The court record merely states, “
sir, when you first
appeared and legal rights were explained to you, you indicated that
you are conducting your own defence in the
matter
”. This
statement does not pass master in giving effect to the duty of the
court to inform the accused adequately about his
right to legal
representation. In my view, the Magistrate was obliged to ensure that
the accused fully understands the right to
legal representation and
the availability of legal aid in circumstances where he cannot afford
his own legal representation. The
Magistrate clearly fails to fulfil
this duty.
[15]
The court must not just pay lip service when explaining this very
important right of legal representation.
It is the duty of the court
to ensure that the accused properly understands and makes informed
decisions. The court is expected
to encourage the accused to consider
legal representation. In doing so, the court must even explain the
seriousness of the offence
and the possible sentence in the event of
conviction so that the accused can make a well-informed decision. The
court must warn
the accused about the complicated nature of criminal
trial and why it is important to be assisted by a legally qualified
person.
In certain circumstances, such as where the accused person is
an unsophisticated person, as is the case in this matter, the court
must clearly explain about the legal aid and the fact that legal aid
lawyers are independent and not attached to the state prosecutors.
[16]
The Magistrate cannot rely on what might have been said during the
accused’s first court
appearance. The case had been postponed
more than three times before trial. The accused might have changed
his mind, even if he
had initially elected to conduct his own
defence. That needed to be verified, considering that the case had
been postponed on numerous
occasions, the accused is uneducated and
lacks sophistications. The duties of the court in circumstances of
this case were more
compelling.
[17]
In relation to legal representation of the accused, I conclude that
the accused was inadequately
informed of his rights and that was a
failure of justice.
[18]
The next aspect to consider is the manner in which section 112(1)(b)
of the CPA was conducted;
and the rejection of the accused’s
plea explanation in circumstances where the court had found the
accused guilty. It is
trite that the primary purpose of section 112
of the CPA is to protect an accused person, who, as in the instant
case, is not only
undefended but is clearly uneducated and exhibits
no sophistications, from the adverse consequences of an illconsidered
plea of
guilty. In
S
v Samuels
[4]
Dlodlo J, as he then was remarked:
“
At
the risk of repeating what I have stated earlier in this judgement, I
reiterate that the questioning and answers must cover all
the
essential elements of the offence which the state in the absence of a
plea of guilty will be required to prove
.”
[19]
In
S
v Naidoo
[5]
the court remarked:
“
It
is well settled that the section was designed to protect an accused
from the consequences of an unjustified plea of guilty, and
that in
conformity with the object of the legislature our courts have
correctly applied the section with care and circumspection,
and on
the basis that where an accused’s responses to the questioning
suggest a possible defence or leave room for a reasonable
explanation
other than the accused guilty, a plea of not guilty should be entered
and the matter clarified by evidence
.”
[20]
It remains abundantly clear from the answers given by the accused,
pursuant to the Magistrate’s
questioning in terms of section
112 (1)(b) of the CPA, that the accused’s non-compliance with
the order was not deliberate,
mala fide or unreasonable. In the first
place the accused disputed that his actions were unlawful, because he
believed that the
order was a matter of the past. Secondly, the
accused disputed that he had an intention to violate the court order.
He explained
that he used to go to his home and that it was not his
first day to be at his home. There is a further reason to infer that
the
accused was not acting in contempt of the court order because in
his answers he gives a vague statement that ‘he was going
to go
up’ whatever that means. The court had a duty to interrogate
these answers further.
[21]
I had an opportunity to examine the court order of 13 November 2020.
The court order merely states
that, “
the court orders that
the attached interim protection order be confirmed
”. The
interim order does not form part of the records. During the
proceedings, the prosecutor had informed the court that
the interim
protection order could not be found. There is no evidence that the
interim protection order was ever served upon the
accused person.
There is no return of service which would have helped to explain
whether the order was served upon the accused
and that it was clearly
explained to him. There is paucity of information regarding the order
and the service of the order. These
should be viewed against the
answers given by the accused that he thought that this was a thing of
the past. Secondly, the accused
had suggested that he received the
order on 13 November 2020. The order of 13 November 2020, which is
part of these records states
no more, than confirming an interim
order which is not part of the record. All these questions should
have been canvased by the
court with the accused and the state had a
duty to prove its case beyond reasonable doubt.
[22]
In my view the Magistrate having correctly found that the explanation
given by the accused was
not supportive of the plea of guilty, ought
to have entered a plea of not guilty in terms of section 113 of the
CPA. Section 113
of the CPA provides as follows:
“
(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 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 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
.”
[23]
Contempt of court has essential elements which must be proved beyond
reasonable doubt just like
any other crime. Contempt of court
consists in unlawfully and intentionally violating the dignity,
repute, or authority of a judicial
body. An offence is committed by a
person who unlawfully and intentionally disobeys a court order. The
state has an obligation
to prove beyond reasonable doubt that the
offence was committed intentionally with the necessary
mens
rea
.
The accused disputed the intention to commit the crime in this case
and that his actions were unlawful. The Magistrate had no
choice but
to enter a plea of not guilty. The recent cases on contempt of court
seem not to have changed the position set out in
Fakie
NO v CCII Systems (Pty) Ltd.
[6]
Cameron JA (as he then was) stated the following at para 9:
“…
A
deliberate disregard is not enough, since the non-complier may
genuinely, albeit mistakenly, believe him or herself entitled to
act
in the way claimed to constitute the contempt. In such a case, good
faith avoids the infraction. Even a refusal to comply that
is
objectively unreasonable may be bona fide (though unreasonableness
could evidence lack of good faith).
These
requirements- that the refusal to obey should be both willful and
mala fide, and that unreasonable non-compliance, provided
it is bona
fide, does not constitute contempt- accord with the broader
definition of the crime, of which non-compliance with civil
orders is
a manifestation. They show that the offence is committed not by mere
disregard of a court order, but by the deliberate
and intentional
violation of the court’s dignity, repute, or authority that
this evinces. Honest belief that non-compliance
is justified or
proper is incompatible with that intent
.”
[24]
The court must satisfy itself that not only that the accused
committed the act but that he committed
it unlawfully and with the
necessary intention to do so. In this case, it can hardly be stated
that the accused had acted unlawfully
and with the intention in view
of the answers that he had given in his plea explanation. He flatly
denied the unlawfulness of his
actions and the intention to commit an
offence. I have no doubt in my mind that a plea of not guilty should
have been entered on
his behalf and the Magistrate has failed to do
so. That was a failure of justice.
[25]
Judicial Officers must ensure that proceedings are conducted in
fairness. This duty becomes more
onerous in circumstances where the
accused is unrepresented. The accused throughout the trial must be
assisted by the presiding
officer. A criminal trial is not a game
where the Magistrate fulfills the role of umpire. He must see to it
that justice is not
only done but must be seen to be done. In all the
stages that I have outlined above gross irregularities had occurred.
The first,
is the failure to adequately inform the accused promptly
about his constitutional right to legal representation before the
trial
and during the day of the trial. It is no cure for the
Magistrate to suggest that the accused was previously advised of his
rights
in circumstances where the case had been postponed more than
three times. Secondly, the accused had raised a valid defence in his
plea explanation when he denied both the intention and unlawfulness
of his actions. Thirdly, the charge was not established in
the
absence of the court order containing the terms for which the accused
is alleged to have violated. Most importantly, there
was no proof of
service for the court order and the identity of the person that
explained the court order to the accused.
[26]
Another aspect of concern to this court is the delay in the
processing of this review. The accused
was convicted and sentenced on
20 May 2022. The Magistrate signed the record of review on 14 June
2022. That is close to a month.
The record is relatively short.
According to the registrar stamp, the record from the District Court
was only received on 18 July
2022. The matter was referred before
this court 21 July 2022. During all this time, the accused was in
custody in circumstances
where his trial was grossly unfair and
irregular. According to the record, accused’s bail was never
considered since April,
the time of his arrest and detention. This is
entirely an unsatisfactory state of affairs. These circumstances
suggest a failing
system and I find this to be unacceptable.
CONCLUSION
[27]
For the reasons outlined above, I am satisfied that the proceedings
were not in accordance with
justice and have to be set aside. The
circumstances of this case are regrettable and is not the best model
on how criminal proceedings
should be conducted by a judicial
officer. In my view, this is a classical signal for the need of
continuous judicial training
as this might not be an isolated case.
On this basis, I will direct that this judgement should be forwarded
to the secretary of
the Magistrate commission for the attention of
Magistrates in general.
THE ORDER
1. The conviction and
sentence against Madodomzi Mdutyana are set aside;
2. The head of prison
wherever Madodomzi Mdutyana is serving sentence should release him
immediately upon receipt of this judgement
but no later than eight
(8) hours from the time the order is received; and
3. The registrar of this
court is directed to forward a copy of this judgment to the secretary
of the Magistrate Commission to be
circulated to all the Magistrate
for training purposes and their attention.
M
NOTYESI
JUDGE
OF THE HIGH COURT (ACTING)
I
agree
R
W N BROOKS
JUDGE
OF THE HIGH COURT
[1]
[1995] ZACC 1
;
1995
(1) SACR 568
(CC)
(1995 (2) SA 642
;
1995 (4) BCLR 401)
, para 16.
[2]
See
also S v Mosesi
2009 (2) SACR 31
at para 5.
[3]
2008
(1) SACR 96
(C) at para 13.
[4]
2016
(2) SACR 298
para 21.
[5]
1989
(2) SA 114
(A) at 121 F.
[6]
[2006] ZASCA 52
;
2006
(4) SA 326
(SCA) ([2006] ZASCA 54).