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[2021] ZAMPMBHC 36
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S v Mashego (R24/2021; A360/2020) [2021] ZAMPMBHC 36; 2021 (2) SACR 520 (MM) (10 August 2021)
THE HIGH
COURT OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT)
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED.
10
August 2021
HIGH COURT
REF NO: R24/2021
MAGISTRATE
CASE NO. A360/2020
In the matter
between:
THE
STATE
And
NEHEMIA MASHEGO
(THE ACCUSED)
REVIEW
JUDGMENT
RATSHIBVUMO
J
[1].
Introduction.
This is a special review from Bushbuckridge Magistrate
Court. It was sent by the Senior Magistrate, Mr. CM Mokgotho, in
terms of
section 304 (4) of the Criminal Procedure Act, no 51 of 1977
(the Act). On 19 March 2021, Mr. Mashego (the accused) was sentenced
to six months imprisonment following a conviction for “failure
to appear in court” by the Acting Magistrate (the Magistrate).
The Senior Magistrate sent the matter on review because he was of a
view that the proceedings may not have been in accordance with
justice. The concerned Magistrate was afforded an opportunity to
respond to the queries raised by the Senior Magistrate in his
covering letter. I also raised questions in terms of section 302 (2)
of the Act to which he responded.
[2].
I was privileged to
have the submissions from the office of the Director of Public
Prosecutions, Mpumalanga, which were made available
following my
request in terms of section 302(3) of the Act. I am indebted to Adv.
N Mpolweni, the Deputy Director of Public Prosecutions
(the DDPP)
assisted by Adv. Z Mata, whose views greatly assisted me in this
judgment. The DDPP raised several incongruities in
this case on which
he argues that the conviction and sentence imposed on the accused
should be set aside. While this can be done
based on any one of the
uncovered irregularities, I deem it necessary to look into all of
them as this may be necessary for judicial
training going to the
future.
[3].
Background.
The accused, then aged 32, was
arrested on 23 September 2020 on charges of malicious damage to
property. It was alleged that he
damaged a window valued at R200, and
contravening the
Domestic Violence Act 116 of 1998
, for making verbal
threats. His mother was the complainant in all the charges. Although
the complainant later filed a withdrawal
statement with the police,
this was not acceded to by the Senior Prosecutor. She ended up
acquiring services of an attorney to
represent her son and apparently
also paid for his bail. The accused remained in custody until 13
October 2020 when bail was fixed
for him in the amount of R500.00. It
is not clear from the record as to when the accused paid this. He was
however in default when
the matter was called on 17 November 2020.
Bail money was therefore finally forfeited to the State on 07
December 2020.
[1]
[4].
Upon his court
appearance on 18 December 2020 following his arrest, the accused
presented a doctor’s letter to the effect
that he was not fit
to attend court on 17 November 2020. The Magistrate did not attach
much weight to it as he thought it was not
necessary to hold a “full
inquiry.” Bail was however fixed again for him at R700.00.
Unfortunately this too was forfeited
to the State on 07 February 2021
after the accused was again in default. He was again arrested and
brought before court on 19 March
2021. An inquiry was conducted after
which the accused was convicted and sentenced as reflected in
paragraph 1 above.
[5].
Automatic Review.
Section 302(1) of the Act provides,
(a) Any sentence imposed
by a magistrate’s court-
(i) which, in the case of imprisonment
(including detention in a child and youth care centre providing
a
programme contemplated in section 191(2)(j) of the Children’s
Act, 2005 (Act No. 32 of 2005)), exceeds a period of
three months,
if imposed by a judicial officer who has not held the substantive
rank of magistrate or higher for a period of seven
years,
or
which exceeds a period of six months, if imposed by a judicial
officer who has held the substantive rank of magistrate or higher
for
a period of seven years or longer;
(ii)…
shall
be subject in the ordinary course to review by a judge of the
provincial or local division having jurisdiction
.
[Own emphasis].
[6].
As already alluded to,
this case was not sent on review in terms of the above provision, but
by way of special review as provided
in section 304(4) of the Act.
Given this confusion, I raised a question on the date on which the
Magistrate was appointed and why
the matter was not sent on review in
the ordinary course if he had not held that position for longer than
seven years.
[7].
In response, the
Magistrate indicated that his date of appointment to a position of a
magistrate was 01 July 2019. He conceded that
the case was as such
subject to automatic review and gave a one line explanation for his
failure to send it as provided in the
Act saying, “it was due
to an error and/or oversight on my part due to work load.” The
DDPP submitted that the explanation
by the Magistrate is not good
enough especially because he further dealt with this matter on more
than one occasion on later dates
following the date of the sentence.
He had more than sufficient time to rectify his “error”
by ordering that the record
be transcribed and sent to the High Court
for review.
[8].
In
S
v Jacobs
,
S v Swart, S
v Damon, S v Jas, S v Klaasen, S v Swanepoel, S v Xhantibe
[2]
the court expressed frustrations at non-compliance with section 302
of the Act by the Magistrates who delay the submission of review
matters to the High Court. It proceeded to conclude as follows,
“In our view, if an accused’s constitutional right of
review is effectively stymied and rendered nugatory because of
egregious delay, for example where, by the time the matter is
reviewed he has already served the sentence that was imposed upon
him, his constitutional right to a fair trial has been infringed and
this may constitute a failure of justice and a ground for
the Court
not only to decline to certify that the proceedings are in accordance
with justice, but also to set aside or correct
the proceedings or to
make any other order in connection with the proceedings as well, to
the Court, seem likely to promote the
ends of justice. Judicial
pro-activism requires that this Court move beyond being a passive
bystander lamenting lengthy and unnecessary
delays in the automatic
review process without doing something practical in order to attempt
to remedy systemic deficiencies and
indeed, in the interests of
justice the Court has a duty not only to the accused in the matter
before it but also to other unrepresented
accused who may have been
sentenced at a particular magistrate’s court where there is a
clear problem, to ensure that effective
measures are taken to resolve
such deficiencies.”
[9].
In
S v Joors
,
[3]
the High Court went to the extent of directing that a copy of the
judgment where there was undue delay in the submission of a case
for
review, be referred to the Director of the Legal Resources Centre for
consideration as to what assistance should be given to
the accused in
order to achieve appropriate redress.
In
S
v Osmond
,
[4]
this court held the following:
“Presenting a case for review after an accused has already
served the sentence defeats the whole purpose of review. We need
to
understand that, for an accused to have their case reviewed by a High
Court, is a right and not a privilege. We all owe it to
the
Constitution and to the public to respect this right and to do all
within our means to make this a reality. If all the court
support
officers do their part without negligent delays in submitting review
records, injustice can be circumvented.”
[10].It is inconceivable that here we
are not dealing with a case of a delay in submission of a review
matter. This is a case of
non-submission of a case for review
altogether. Had it not been picked by the Senior Magistrate, the
accused would have suffered
great and unexplained injustice due to
non-compliance with the provisions of section 302 of the Act.
[11].Failure to have this matter
submitted on review was a gross irregularity which denied the review
court of an opportunity to
rectify any injustice the accused may have
suffered. In just over a month from today, the accused would have
served his full sentence
without an opportunity to be considered for
parole as he remains an awaiting trial prisoner with no bail. When
one’s right
to liberty is taken away by judicial means, great
care should be exercised to avoid any margin of error.
[12].For the Magistrate to simply put
it in one line saying, “it was an error and/or oversight on my
part due to work load,”
leaves much to be desired. The workload
magistrates face daily is not unique to one office. All the
magistrates countrywide work
under tremendous pressure due to
increased responsibilities
[5]
which often come without the creation of new magisterial posts and
the vacancies that sometimes take long to be filled. Magistrates
however take an oath to “administer justice to all and uphold
the law and the Constitution of the Republic, without fear,
favour
and prejudice…” The duty to obey the law and to respect
everyone’s constitutional rights is superior
to any workload
judicial officers may have. In fact, their workload should be seen as
increased in terms of protecting these rights
as opposed to being so
busy that the rights are overlooked.
[13].As it is apparent hereunder,
[6]
the Magistrate in this case may have been too busy that he was
distracted from protecting the accused’s rights, but some
of
his work was unnecessary and self-created. I refer to the events of
01 April 2021 when the Magistrate spent a lengthy period
of time (six
pages of the transcribed record) trying to force a Legal Aid Attorney
on the accused, while the accused was uninterested.
The Magistrate
ended up making an order against the accused’s wish and
postponed the matter for a legal representative. This
was unnecessary
and should have been avoided. Time spent in this regard could have
been utilised effectively in just giving the
clerks an instructions
to transcribe the record and have it sent on review. I agree with the
DDPP that when the Magistrate dealt
with the matter on several
occasions after the sentence, it should have come to his attention
that the case should have been sent
on review. His failure to comply
with section 302 of the Act is therefore inexcusable.
[14].
The
nature of inquiry.
The Magistrate was also asked, “in terms of what
empowering statute or authority were the proceedings held on 19 March
2021
(which resulted in the accused being convicted of “failure
to appear in court” and sentenced to six months imprisonment),
conducted?” His response was that “the proceedings were
conducted in terms of section 67(2)(c) and 67(3) of Act 51
of 1977.”
[15].The said section provides as
follows:
“
67. Failure of accused
on bail to appear
(1) If an accused who is released on bail-
(a) fails to appear at the place and on the
date and at the time-
…
the court before which the matter is pending shall declare the bail
provisionally cancelled and the bail money provisionally forfeited
to
the State, and issue a warrant for the arrest of the accused.
(2) (a) …
(b) …
(c) If the accused does not appear before
court within fourteen days of the issue under subsection (1)
of the
warrant of arrest or within such extended period as the court may on
good cause determine, the provisional cancellation
of the bail and
the provisional forfeiture of the bail money shall become final.
(3) The court may receive such evidence as it
may consider necessary to satisfy itself that the accused
has under
subsection (1) failed to appear or failed to remain in attendance,
and such evidence shall be recorded.
[16].It is doubtful if the Magistrate
took a glance at this section before penning down his response. A
simple reading of this section
makes it pertinently clear that it
provides for the procedure to be adopted upon “failure of an
accused on bail to appear”
as the heading provides. This
procedure was conducted by him on 07 February 2021. This section does
not provide for the conviction
of the accused and for any sanction to
be imposed. The question was clearly directed at the inquiry that
resulted in the conviction
and the sentence. Questions posed on
review give an opportunity to a Magistrate to reflect back and
research the legal position
before responding. They are not meant to
invoke defence of whatever he/she did at all cost.
[17].Section 67 therefor, cannot be
used to conduct an inquiry in which the accused is convicted and
sentenced. However, this does
not mean that the accused released on
bail cannot be convicted and sentenced for his failure to appear in
court. If he is to be
found guilty as such, it would be based on a
different section and requiring a different procedure. That would be
section 67A of
the. It provides,
“
67A. Criminal liability of a person who
is on bail on the ground of failure to appear or to comply with a
condition of bail.
Any person who has been released on bail and who
fails without good cause to appear on the date and at the place
determined for
his or her appearance, or to remain in attendance
until the proceedings in which he or she must appear have been
disposed of, or
who fails without good cause to comply with a
condition of bail imposed by the court in terms of
section
60
or
62
,
including an amendment or supplementation thereof in terms of
section
63
, shall be guilty of an
offence and shall on conviction be liable to a fine or to
imprisonment not exceeding one year.”
[18].Section 67A was inserted by
section 9 of Act 75 of 1995 and came into operation on 21 September
of the same year. It was created
following a number of judgments such
as
S v Ndwayana
[7]
which held that an accused who was out on bail could not be convicted
of the offence of failing to appear in court as the forfeiture
of his
bail money was sufficient punishment. Anything more was considered as
double jeopardy. This has changed with the insertion
of this section.
The fact that an accused already had the bail money forfeited to the
State only serves as mitigating factor to
be considered before the
sentence is passed.
[19].It is now settled that section
67A creates a statutory offence which requires the State to prove the
accused’s guilt
beyond a reasonable doubt. Unlike the onus
placed on the accused in inquiries in terms of sections 67 and 170 of
the Act, where
he has to satisfy the court that failure to appear was
not due to a fault on his part; under section 67A, there is no onus
on the
accused to prove anything. The accused would have to be
charged by the prosecution with a proper charge sheet drafted and
have
all the elements of the offence proved in a normal trial.
[8]
The wording of the conviction by the Magistrate which makes no
reference to any statutory provision makes it looks like the accused
was convicted of a common law crime. However, failure to appear in
court is not a common law crime. It suffices to conclude that
the
conviction of the accused has no legal basis and should be set aside.
[20].
Other
irregularities.
The manner in which the inquiry was conducted leaves
much to be desired. The accused had been legally represented on all
the dates
he appeared in court except the date on which he was
convicted and sentenced. The Magistrate did not afford the accused an
opportunity
to secure the presence of his legal representative. If
he/she was not present in court, the case could have been postponed
for
his/her presence. This was not done and the accused was not asked
any question around the legal representative. One would never
know if
the Magistrate would still have misdirected himself as he did, had he
allowed the accused’s legal representative
to be present.
Instead, the magistrate proceeded with the inquiry without even
telling the accused of his rights to legal representation.
[21].To this end, the Magistrate
explained that that he proceeded in the manner he did (conducting an
inquiry without explaining
these rights) as the accused’s legal
representative had withdrawn from the record. Indeed, on the date the
accused was absent
in court, the legal representative withdrew as he
did not have instructions on where the accused was. This however does
not mean
that once the accused is arrested, the legal representative
would not want to represent the accused again if re-instructed.
Moreover,
the accused has a right to appoint a new legal
representative if the one who withdrew would not want to be
instructed again.
[22].The Magistrate tried to justify
this lacuna by pointing at the events of a later date in which the
accused refused to get a
legal representative for purposes of a
trial. He was adamant that he would conduct his own defence against
the wishes and orders
made by the court. Surely this is a
misdirection in that he is trying to use the end to justify the means
the same way mobility
would be limited if not impossible when a cart
is placed before the horse. The accused cannot be blamed for not
wanting any legal
representation after suffering so much injustice in
a court of law. He even verbalised his mistrust on the lawyer because
the one
who appeared for him in the past was not appointed by him.
Failure to explain the right to legal representations is an
irregularity
that vitiates the entire proceedings irrespective of the
merits.
[9]
[23].After the conviction of the
accused, the Magistrate went on to pass the sentence without inviting
the accused to mitigate.
the Magistrate merely asked the accused,
“what should the court sentence you to?” The Magistrate
is adamant that this
question amounts to an invitation of the accused
to mitigate. The question on whether the Magistrate honestly believed
that he
was inviting the accused to mitigate can be answered by
visiting the record of proceedings. Did the accused present
mitigating
factors to the court before he was sentenced?
[24].When asked as to what sentence
should be passed, the accused merely asked for forgiveness. Without
any further question, the
court pronounced the sentence and did not
even explain the rights to appeal or to make representation on
review. In imposing the
sentence, the Magistrate did not know the
accused’s age, marital status and whether he has children or if
he was their primary
caregiver. If the Magistrate invited the accused
to mitigate, what did he do when the accused failed to do so? The
accused was
not invited to mitigate and the best the magistrate could
have done was to concede. Sadly, irrespective of all the
irregularities
exposed in the questions directed to him, the
Magistrate does not see anything wrong in the nature of the inquiry
and the sentence
imposed.
[25].
The
right to conduct own defence.
Six pages of the transcribed record reflect an
unfriendly exchange between the Magistrate and the accused over the
right to legal
representation. The Magistrate ended up ordering that
the accused shall be legally represented and that the accused could
not have
any more say in this regard as the Magistrate’s order
was final. The Magistrate went further to deliberately confuse and/or
mislead the accused who kept on saying he wanted to plead guilty, by
asking him to plead well knowing that the charge sheet had
not been
properly read out to him. When asked why he forced legal
representation against the accused’s wishes, the Magistrate
said “…the accused wanted to proceed with a guilty plea
and displayed that he could not conduct his own defence properly.”
It is rather unfortunate that the Magistrate did not see this
inability to conduct proper defence on the date he convicted him.
[26].The DDPP remarked that “it
seems rather astonishing that the Learned Magistrate after he
convicted an unrepresented accused
without warning him of his right
to legal representation suddenly he is eager to force legal
representation to the accused as it
appears on record.” His
previous disregard of the accused right in this regard makes one to
wonder whether this insistence
was about safeguarding the accused’s
interests. Towards the end of the exchange he had with the accused,
the Magistrate said
the following:
COURT:
“No, this one is going to get us into trouble. You know what,
we do not want to be going
on review because you do not know. I am
going to postpone your matter, you get a lawyer who is going to
prepare a statement properly
from Legal Aid. Now I am making a ruling
on you.”
(01
April 2021)
[27].With the statement above, one
would be forgiven for concluding that the Magistrate wanted the
accused to get legal representation
to avoid a review which becomes
compulsory when an accused is not represented should he be given a
sentence stipulated in section
302 of the Act. As much as the accused
has a right to be legally represented, the flipside of the same coin
is that he/she also
has a right to conduct his/her own defence. This
should not be confusing to the judicial officers as section 112(1)(b)
was enacted
for accused who wished to plead guilty without help of a
legal representative. The accused person does not have to be a law
graduate
to be able to plead guilty on any crime. In
S
v Wildridge
,
[10]
a case that deals with the right to dismiss a legal representative
and to conduct one’s defence, the following was said by
Plasket
J,
“
Section 35(3) of the Constitution provides
that, everyone has the right to a fair trial. That right includes the
right to be represented
by a legal practitioner of an accused
person's choice and to be legally represented 'at state expense, if
substantial injustice
would otherwise result'. The corollary of the
right to legal representation is the right to represent oneself.”
[28].
Court’s
decorum flowing from the bench
.
Something that caught the attention of the DDPP that had
not been raised with the Magistrate is the unsavoury language he used
in
an open court in communication with the accused to which the DDPP
remarked, “[T]he language of communication with the accused
was
even less the standard of decorum expected from the Presiding
Officer.” From various sections of the transcripts, the
following appears.
COURT:
Stand
up. This is not a tavern.
There is a warrant for you. You ran away. Now we have to hold an
inquiry.
(19 March
2021 page 1).
On 17 February 2021 when bail was finally forfeited to
the State, the following exchange appears on record in the absence of
the
accused.
COURT:
Are you related to the accused?
WITNESS: He is my child your
worship.
COURT:
Where is he today?
WITNESS: We do not know
his whereabouts your worship because he is residing at some other
homesteads
your worship.
COURT:
Okay, you heard.
PROSECUTOR: As the court pleases your worship. Since
they do not know the whereabouts of the accused, it means that his
bail will
have to be final forfeited and the warrant then…
(intervenes)
COURT:
Alright, thank you. You are excused ma’am. But his bail is
finally
forfeited to the State because he is not here.
WITNESS: Your worship,
he is present because he is residing at certain homesteads and he
comes to
our homestead at night your worship and he would break our
window panes your worship.
COURT:
Okay.
Then you can see that he is even intimidating witnesses
.
PROSECUTOR: As the court pleases your worship.
COURT:
Definitely. His bail if finally restricted estreated but we have
already
issued a warrant for his arrest. The police will arrest him
and bring him in.
On 01 April 2021, after a long exchange in which the
Magistrate attempted to force a legal representative on the accused,
while
the accused refused rather opting to plead guilty without a
legal representative; the following is recorded.
COURT:
What do you want to do?
ACCUSED: Eish.
COURT:
Do not say eish.
ACCUSED: I do not know. I do not know. I
just wanted… (intervenes)
COURT:
Are you playing April fool there?
ACCUSED: No, I am not.
…
ACCUSED: I cannot hire Machubeni. I
do not have money to hire Machubeni.
COURT:
Who spoke about Machubeni? Is this lady Machubeni?
ACCUSED: No, I am surprised when he
came and represented me the last time.
COURT:
Where?
ACCUSED: I did not ask for him.
COURT:
Machubeni was not here. Machubeni did you represent you (sic).
Do
you not lie.
ACCUSED:
I am not lying.
COURT:
You are.
ACCUSED: He represented me. He
came, you gave me R700.00 bail My Lord.
…
COURT:
Okay, let us do the plea.
Let us do the plea.
ACCUSED: She want me… (intervenes)
COURT: You
see, now you are going to waste our time
because you think
speaking English is being smart.
[29].As judicial officers, we cannot
expect members of the public to respect the bench if we do not accord
them similar reverence.
Each one of us can find himself in the dock
at any given moment. All it takes is for someone to make allegations
against us, and
we will need people to treat us with respect. One
does not lose his esteem because he is an accused. There were less
intrusive
ways to ask the accused to stand up without suggesting to
him that he was behaving as though he was in a tavern. Everyone would
feel insulted when asked to stand up in that manner, especially if he
happened to be a person who does not consume alcohol and
as such, not
a tavern visitor.
[30].The authority we are endowed
with as judicial officers is from the public and it is not meant to
intimidate it, but to execute
justice to its members with respect and
humility. We are not in these positions because we are indomitable.
If we did not volunteer
our service, there would be others doing
exactly what we are doing and maybe even better. When the time is
due, we will be replaced
and justice will continue being meted out to
the public in our absence.
[31].The utterances made by the
Magistrate on the day he ordered the final forfeiture of bail money
may have been the root cause
of the impatience he displayed when the
accused finally appeared. For it appears that he had already made up
his mind that the
accused was “even intimidating the
witnesses.” When asked if he considered recusing himself in
light of these utterances,
the Magistrate’s response was a
simple no. The Magistrate also accused him of playing April’s
fool and of lying about
being represented by Mr. Machubeni. A simple
back paging of the record would have confirmed that the accused was
not lying as he
was represented by Mr. Machubeni, the day bail of
R700.00 was fixed by the court.
[32].As outlined above, the
conviction and the sentence meted out to the accused can be attacked
from innumerable prongs. The most
distinguishable being that there is
no legal basis upon which the whole inquiry, the conviction and the
sentence were founded.
[33].
Under
the circumstances, the following order is made.
33.1The conviction and sentence are
set aside.
33.2The Registrar should avail a copy
of this judgment to the Office of the Chief Magistrate –
Mpumalanga.
TV RATSHIBVUMO
JUDGE
OF THE HIGH COURT
I agree
H ROELOFSE
ACTING JUDGE OF THE HIGH COURT
10 AUGUST 2021
[1]
It is apparent that the Magistrate calculated the
fourteen days from the date the accused was in default excluding the
weekends.
Section 1 of the Act however defines a day as “the
space of time between sunrise and sunset.” There is no reason
why the space between sunrise and sunset on weekends cannot be
included in the calculation of fourteen days as the Act does not
refer to business days but just days. The calculation may have been
confused with Rule 2(2) of the Magistrate Court Rules which
specifically excludes Saturdays and Sundays in calculation of
dies
.
In the
Criminal Procedure Act, there
is no such exclusion unless it
is specified in a particular section as was done is
sections 54(3)
and
144
(4)(a). Thus the seven days’ postponement allowed for
bail hearing in section 50(6)(d) of the Act includes weekend days,
otherwise the calculation would amount to nine days. In light of the
above, this case should have been postponed to 01 December
2020 for
final forfeiture of bail.
[2]
2017 (2) SACR 546
(WCC)
at para 40.
[3]
2004 (1) SACR 494 (C).
[4]
2020 (1) SACR 357
(ML) at para 33.
[5]
Association of Regional Magistrates of
Southern Africa v President of the Republic of South Africa and
Others
2013 (7) BCLR 762
(CC) at para
63.
[6]
See “The right to conduct own defence under paragraph 25
below)
[7]
1983 (1) PH H93 (E).
[8]
See
S
v Luzil
2018
(2) SACR 278
(WCC),
S v Williams
2012
(2) SACR 158
(WCC) and
S v
Mabuza
1996 (2)
SACR 239 (T).
[9]
S v GR
2015 (2) SACR 79 (SCA).
[10]
019 (1) SACR 474
(ECG) at para 3.