About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Mpumalanga High Court, Mbombela
SAFLII
>>
Databases
>>
South Africa: Mpumalanga High Court, Mbombela
>>
2021
>>
[2021] ZAMPMBHC 60
|
|
S v Ndlangamandla (R23/2021; A698/2020) [2021] ZAMPMBHC 60; 2022 (1) SACR 546 (MM) (2 December 2021)
THE
HIGH COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA MAIN SEAT
HIGH
COURT REF NO: R23/2021
MAGISTRATE
CASE NO. A698/2020
In
the matter between:
THE
STATE
And
MCEBISI
WISEMAN NDLANGAMANDLA
REVIEW
JUDGMENT
RATSHIBVUMO
J
[1]
This matter was laid before me as a review case in terms of section
302
of Act 51 of 1977 (the Criminal Procedure Act) from the District
of Chief Albert Luthuli, sitting at Elukwatini. The accused was
charged for contravening section 31 of Act 99 of 1998 (Maintenance
Act) after he failed to comply with a court order to the effect
that
he should make monthly payments of R600.00 (totalling R6 000.00)
towards the maintenance of his child. On the 7
th
of May
2021, he was found guilty as charged but for only in respect of
arrears of R1 200.00 and sentenced to one year’ imprisonment
which was conditionally suspended for five years.
[2]
Upon perusal of the trial record, it was conspicuously incomplete.
The
record was accompanied by a report from the presiding Magistrate
who asked that the conviction and the sentence be set aside as
they
were not in accordance with justice. According to the Magistrate, the
missing parts in the record were due to the interpreter’s
failure to interpret parts of the trial. She wrote,
“
The court on the
day in question had only one interpreter who was also not regularly
interpreting the proceedings accordingly in
court. Mr. Ndlangamandla
had the rights to follow and understand all the proceedings in court,
hence the court had to use both
language that is vernacular (isiZulu)
and translate such in English immediately after such communication.”
[3]
The
impression created from the above paragraph was that the trial was
fully conducted in one or two of the official languages except
that
sometimes the Magistrate would communicate with either the witnesses
and/or the accused in isiZulu and that part of the trial
was not
interpreted into English. There is nothing wrong in having a trial
conducted in any of the official languages as all of
them are equal
and need to be given equal treatment. But where the trial is
conducted in any language other than the court language
of record,
being English, the presiding officer has a duty to see to it that the
record that is submitted to the High Court is
translated into
English.
[1]
It is incumbent upon
every judicial officer, before embarking on a trial in any other
language to make sure that there are resources
to take care of the
translations without causing the wheels of justice to grind to halt
and thereby prejudicing any of the parties
involved.
[4]
In
S
v Mathebula
[2]
,
this court held that court language of record is English and it
should be adhered to uniformly. Witnesses are free to give evidence
in any language (not limited to 11 South African official languages),
provided the same is interpreted into English which is the
court
language of record. This is not aimed at accommodating particular
judicial officers presiding over cases at a particular
time, but it
is for smooth running of the court and administration of justice. One
may be conversant in all the 11 South African
official languages, but
judicial officers on the next hierarchy of the judicial system who
may have to deal with the same matter
on appeal, may not be
conversant in those languages. Where the trial is conducted in any
language other than the court language
of record, the presiding
officer has a duty to see to it that the record that is submitted to
the High Court is translated into
English.
[5]
For reasons set out above, I requested the Magistrate to cause the
record
to be transcribed and translated so that this court would be
able to have a meaningful review of the matter. In response, the
Magistrate
indicated that the missing parts were not recorded at all
and could not be retrieved from the system. An affidavit by the Clerk
of Court was also made available in which she confirms that the
missing parts could not be retrieved from the recording machine.
It
became pointless to ask the Magistrate to reconstruct the record
given her first report that she could not do so and instead,
asked
that the conviction and the sentence be set aside.
[6]
In
S
v Nkhahle
[3]
,
the court gave clear guidelines to both the judicial officers and the
stenographers in ensuring that the recording machines are
working
before trials can be recorded as failure to have the trial record
often results in miscarriage of justice. In that matter,
the
conviction and sentence were set aside for reason that the record was
incomplete and could not be reconstructed.
[7]
In view of
miscarriage of justice and time wastage that went into this matter,
only for it to be submitted to the High Court for
setting aside, I
can only echo what Henney J said in
S
v Nyumbeka
[4]
to wit,
“
The functions of a
magistrate go beyond merely adjudicating matters in court.
Magistrates have a duty in terms of the Constitution
and the law to
make sure that the orders of their court and matters relating thereto
are implemented and given effect to. They
should not sit idly and
take it for granted that the administrative component and the clerk
of the court at the various magistrates'
offices will implement and
give effect to their orders. They should supervise and make sure that
effect be given to it. Their judicial
authority is founded in terms
of s 165 of the Constitution of the Republic of South Africa Act 108
of 1996… [They must
ensure] that no incomplete or
incorrect record is sent on review, because this would lead to
delays, as has happened in this matter.
Should this happen, the
magistrate would be clearly negligent in executing his/her duties and
functions imposed by the law,
especially
s 303
of the
Criminal
Procedure Act 51 of 1977
.”
[8]
The court is therefore of the view that the proceedings were not in
accordance
with justice for lack of the proper trial record to be
reviewed.
[9]
In the result, the following order is made:
[9.1] The conviction and
sentence are set aside.
_____________________
T.V.
RATSHIBVUMO
JUDGE
OF THE HIGH COURT
_______________________
D
GREYLING-COETZER
ACTING
JUDGE OF THE HIGH COURT
Date:
02 December 2021
[1]
See
S
v Feni
2016
(2) SACR 581 (ECB)
[2]
2020
(1) SACR 534
(ML) at para 17-18.
[3]
2021
(1) SACR 336 (FB)
[4]
2012 (2) SACR 367
(WCC) at para 20-21