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[2020] ZALMPPHC 38
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S v Mokwena and Another (36/2020; B800/2019) [2020] ZALMPPHC 38 (18 June 2020)
REPUBLIC OF SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE: YES
(2)
OF INTEREST TO
OTHER JUDGES: YES
(3)
REVISED:
YES / NO
HIGH COURT CASE NO:
REV 36/2020
MAGISTRATE CASE NO:
B800/2019
18/6/2020
In the matter between:
THE STATE
AND
MOKWENA, KHASHANE
STEPHEN
ACCUSED 1
MAMABOLO, LINA
ACCUSED 2
J U D G M E N T
MUDAU, J:
[1]
The
two accused, a couple aged 56 and 44 years respectively were on 11
March 2020, convicted by the magistrate at Ga-Kgapane, Letaba
Magisterial district on a charge of assault with intent to cause
grievous bodily harm. Consequently, accused 1 was sentenced
to serve
12 months’ imprisonment of which six months was suspended for
three years on condition that he was “
not
found guilty of a similar offence (assault) during the period of
suspension
”.
Accused 2 was sentenced to six months’ imprisonment on
condition that she was “
not
found guilty of assault during period of suspen
sion”.
The sentences were imposed on the date they were convicted.
The
matter came before me by way of “automatic review”.
[2]
I
take issue in the manner in which the conditions of suspension were
phrased. The accused can arguably be forced to serve prison
terms for
any assault related charges, and in the case of accused 2, including
common assault, without an option of a fine, committed
before they
were convicted for the charge under consideration. However, that is
the least of my concerns. The order as it stands
could easily have
been remedied, as it was not a fatal error.
[3]
According
to the well-known dictum of Curlewis JA
[1]
:
“
A
criminal trial is not a game... and a Judge's position... is not
merely that of an umpire to see that the rules of the game are
observed by both sides. A Judge is an administrator of justice, he is
not merely a figure-head, he has not only to direct and control
the
proceedings according to recognised rules of procedure but to see
that justice is done.”
[4]
I
was not satisfied that the proceedings were in accordance with
justice and directed certain questions to the trial magistrate
to
which he promptly responded. I also solicited the views of the
Director of Public Prosecutions, Limpopo, for which I am indebted.
The DPP lend support to the view I have of the matter. On 5 June
2020, the conviction and the sentences were set aside. I ordered
the
immediate release of the first accused who, as it turned out, was
already out of prison on parole conditions.
It
is trite that a judicial review is not concerned with the correctness
of the result on the substantive merits of the decision
in question,
but with the fairness and regularity of the procedure by which the
decision was reached
[2]
.
[5]
Sections
302 and 303 of the Criminal Procedure Act 51 of 1977 (the CPA)
provide that the record of the proceedings in which a reviewable
sentence has been imposed by a
magistrate
shall be forwarded to the registrar of the High Court for review
within seven days. The provision in section 303 that
the clerk of the
magistrate's court must forward the record to the Registrar of the
High Court within one week after the determination
of the case has
been held to be imperative
[3]
.The
record of the proceedings was sent for review outside the mandatory
period of seven days. Section 302(1)(a) of the CPA
provides that
proceedings in which a sentence has been imposed by a judicial
officer who has not held the rank of magistrate for
a period of more
than seven years and which exceeds three months' imprisonment (or
R6000), or in the case of magistrates who have
held the rank for
longer exceeds a term of imprisonment of six
months
(or R12 000), are automatically reviewable by the High Court.
[6]
In
this case, attached to the record of proceedings is a letter from the
clerk of the court dated 8 May 2020, which reads thus:
“
Kindly
take note that the attached record is not submitted in time as
expected due to inconveniences caused by the national lockdown.
I was
told by the Registrar of the High Court that your office was not
operating due to lockdown”,
in apparent reference to Covid 19 pandemic Regulations and ensuing
directiv
es
by
the Chief Justice, and the Judge President of this Division
.
However, the J4 certificate bears two different dates. The first
court stamp reflects 18 March 2020. The 18th was altered manually
to
reflect the 19th, which suggests that it was on the latter occasion
that the papers were prepared for signature by the trial
magistrate.
[7]
The
second court stamp is 8 May 2020, on which date the record was
finally dispatched for consideration by the High court for review
purposes. Covid 19 Regulations and related Court Directives came into
operation after 26 March 2020, which is common cause. It
is a
significant number of days during which the record could, and should
have been sent to the High Court for review purposes.
The letter by
the clerk of the court is silent in that respect.
[8]
The
objective of the provision for automatic review proceedings is
self explanatory. It is to ensure, as far as possible, that
legally unrepresented convicted persons have been tried fairly and
sentenced justly
[4]
.
In a plethora of decided cases, the High Courts have often expressed
warranted concern at delay in submitting matters on review
[5]
.
[9]
In
S
v Jacobs And Six Similar Matters
[6]
,
the
court
was of the view that
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.
The delay regarding the review of
this matter for obvious reasons
cannot be condoned, but is viewed in a serious light. Though viewed
in a very serious light, it
is the least of my concerns for reasons
that will become apparent.
[10]
In
the review matter under consideration, the magistrate, during
cross examination of the complainant, subjected accused 1
to
detailed and incisive questioning which takes up six pages of the
transcript even before the accused could take the witness
stand,
ostensibly intended to assist him as an unrepresented accused person.
The results were grossly unfair and detrimental in
my view to the
accused’s case. In response to my concern, the trial magistrate
wrote that: “
I
concede that in the pursuit of attempting to determine a cogent
version to put the complainant, it may appear to slant towards
cross-examination, but the purported version that was being proffered
required clarity in order for the complainant to properly
answer to
it”.
[11]
The
exchanges between the trial magistrate and the accused, unedited, are
as follows:
“
Court:
Sir, I am going to say this sir. If you are saying… I missed
something. If you say you she was hitting you on my arm,
and you
indicated my left arm, to what point did she starts biting you? You
are putting a version that she was biting you. How
did that come
about? --- I grabbed her by her collars and at the time she started
biting me.
Ja, but
did she bit … I am lost here. She kicked the beer bottle
because she wanted to assault you.
Accused 1:
Yes, that is correct. I kicked the beer bottle because she wanted to
hit with the beer bottle.
Court:
Okay,
but was the beer bottle in your hand when you kicked it or was it on
the floor that you kicked it or what
?
Accused 1:
she was holding the beer bottle and it had liquor inside. She was
drinking from that bottle.
Court: She
was drinking. I cannot understand what version you are putting.so she
is holding a bottle and then there is liquor inside
the bottle.
Accused 1:
Yes.
Court:
Now
how was she about to assault you with that bottle? Did she turn it
upside down so that the liquid falls out? In other words,
she is busy
standing like this drinking. Does she then take the bottle like this,
turn it upside down so she can hit you with it
or is she hitting you,
how is she trying to hit you with the bottle?(My emphasis)
Accused 1:
Your Worship, she was drinking from the bottle. She then grabbed the
bottle with the neck of the bottle but there was
still liquor inside
the bottle.
Okay, so
she held down next to her.
Accused 1:
Yes.
Court:
Yes
sir, how did you conclude that she was about to hit you with it? (My
emphasis)
Accused 1:
she was hurling herself Your Worship. She was swearing at me.
Court:
Yes, she is holding the bottle next to you. So then you kick the
bottle and then you grab her. Is that correct or is that
the version
you are putting to the witness?
Accused 1:
she is the one who started grabbing me with my collars. I am the one
started hurting. I kicked the bottle. Then she grabbed
me by my
collars.
Court:
Did
the bottle fall out her hand?
(My
emphasis)
Accused 1:
It fell off Your Worship from her hand.
Court :
okay, then she grabbed you. You kicked the bottle first.
Accused 1:
yes, I kicked the bottle.
Court
:
Alright,
and that is when she grabbed you and you then grabbed her and she
started biting you and next minute you slapped her with
an open fist
and then you hit her with a fist
.
(My emphasis)
Accused 1:
that is correct your worship. She will not let go of me. She was
biting me.
Court:
Yes,
no, no, she would not let go of you but you are holding her so she is
biting your hand like that
.
(My emphasis)
Accused 1:
But she was also holding me.
Court: no,
you can put that version. I am just trying to establish you must put
your version to her. In other words, you are now
holding each other.
You have kicked the bottle first. She then grabs you. That is the
version you are putting to her and then she
starts biting. Okay,
she’s biting. So I mean how big is your mouth around your…
How is she biting you? You are holding
at the collar. How is she
getting to you? I want you to explain that to us. (My emphasis)
Accused 1:
she leaned forward your worship and then she then started biting me.
Court: How
far down your arm was she biting you?
Accused 1:
all around.
Court:
again, so while the caller is here, are you getting [intervenes]
Accused 1:
now it was no longer the collars your worship it was on the chest.
Court:
holding the chest and in the meantime, as she was released from
holding you at the collar.
Accused 1:
she was holding me. She did not release me.
Court:
okay, but you are no longer holding her by the collar. You released
her.
Accused 1:
I was holding her.
Court:
So
you are both holding each other at arm’s length, how does she
bend down to bite you? Explain that to the Court
.
(My emphasis)
Accused 1:
I also do not know. I was surprised to see her biting me.
Court:
okay, you will get an opportunity to lead that evidence. Okay so
madam, after the court’s questioning, he is suggesting
that you
were both holding the bottle.. He first kicked the bottle out the
hand. You then grabbed him. He grabbed you back and
then you started
biting him and because you were biting him, he punched you, slapped
you, and then punched you. That is the version
he is putting to you.
What is your response to that--- that is not correct.
Thank you.
So she denies your version. Thank you. You may proceed sir.
Accused 1:
your worship, after that, I dragged the complainant to accused 2’s
homestead. I wanted her to clarify us as to
why was she swearing at
us and I further told her that if she is not prepared to tell us as
to why she was swearing at us
, we were going to further
assault her--- that is not correct.
Court:
S
orry,
when you say that is not correct, your evidence is that you were
dragged. That is common cause
.---
They were together your worship when they dr
agged
me. (My emphasis)
Accused 1:
I was alone.
Court:
Okay, but how did you drag her?
Accused 1
[not interpreted]
Court: so
she was on the ground.
Accused 1:
she was working your worship but I was pulling her.
Court:
No,
we have got past the point of your version being put that she was
biting, then you slapped and then you fisted her. When you
fisted
her, did she fall to the ground or she was still standing upright?
(My
emphasis)
Accused
1:[indistinct] [audio glitch]
Court:
And
then you kept holding on to part of her clothes and then you dragged
her. Did she fall when she was dragging or
…
(My
emphasis)
Accused 1:
okay, did not fall.…”
[12]
The
questions asked have not been exhausted. The burden on the record is
huge enough. From the above extracts, it is clear that
the trial
magistrate did not observe the basic notion of fairness and
procedural justice in the conduct of the trial. It is just
to
characterise the manner of questioning by the magistrate as falling
under the nature of cross-examination. Quite clearly, the
magistrate
subjected the accused to prolonged grilling at the stage when there
was no obligation on him to answer to the questions.
In my view, the
questioning was at times, conducted in a badgering and distinctly
combative manner.
[13]
To
my mind, the rights of the accused to a fair trial which are
entrenched in section 35 (3) (h) of the Constitution
(i.e. to be presumed innocent, to remain silent and not to testify
during the proceedings) as well as section 35 (3) (j) of the
Constitution (i.e. not to be compelled to give self-incriminating
evidence) were breached long before their rights to adduce and
challenge evidence were explained to them. Section 35(5) of the
Constitution also finds application. It provides that evidence,
which
include admissions, obtained in a manner that violates any right in
the Bill of Rights must be excluded if the admission
of that evidence
would render the trial unfair or otherwise be detrimental to the
administration of justice.
[14]
There
are three broadly stated limitations that confine judicial
questioning, which Trollip AJA in
S
v Rall
[7]
summarised, restated in
S
v Joors
[8]
.
I take liberty to echo them briefly: While it is difficult and
undesirable to attempt to define precisely the limits within
which
judicial questioning should be confined, the following broad,
well-known limitations should generally be observed: (1) The
trial
Judge should conduct the trial in a way that his open-mindedness, his
impartiality and his fairness are manifest to all those
who
are concerned in the trial and its outcome, especially the
accused. (2) The Judge should consequently refrain from questioning
any witnesses or the accused in a way that, because of its frequency,
length, timing, form, tone, contents or otherwise, conveys
or is
likely to convey the opposite impression. (3) A Judge should also
refrain from indulging in questioning witnesses or the
accused in
such a way or to such an extent that it may preclude him from
detachedly or objectively appreciating and adjudicating
upon the
issues being fought out before him by the litigants. (4) A Judge
should also refrain from questioning a witness or the
accused in a
way that may intimidate or disconcert him or unduly influence the
quality or nature of his replies and thus affect
his demeanour or
impair his credibility. Any serious transgression of these
limitations will in general constitute an irregularity
in the
proceedings.
[15]
It
is accepted that, a judicial officer is entitled and often obliged in
the interests of justice to put such questions to witnesses,
including the accused, as seem to him or her desirable in order to
elicit or elucidate the truth more fully in respect of relevant
aspects of the case
[9]
.
Much depends, of course, upon the particular circumstances of the
trial itself as to whether, when, to what extent, and in what
form or
manner such questioning should be indulged in by the judicial
officer. The questioning by the trial magistrate in
the instant case
went beyond the acceptable limitations. In this case, however, it is
apparent that the trial court discredited
the accused during
cross-examination of the complainant given the tone and nature of the
questions posed back to the accused. Moreover,
section 167 of the CPA
specifically prohibits the examination of an accused unless he or she
chose to testify, with purpose of
elucidating any points that may
still be obscure after examination by the parties.
[16]
The
list of shortcomings regarding this matter does not end here. In
fairness to the trial court, after the complainant had finished
with
her testimony, the court invited the accused to test her version by
asking questions. however , the following also transpired
: “
[A]nd
further, if you put a version to the complainant which is
different to her version, in other words, if you
say no ,
what happened is this ,what you say about that ,
you cannot put
that version to this accused (sic) if you are not going to testify
.
You must then
testify and subject yourself to cross-examination if you are going to
put her version that is different to the…
complainant
”
(my
emphasis). The right to cross-examination in terms of section 166 of
the CPA is a distinct right from the right to testify and
must be
explained meanifully at the relevant stage of the proceedings in the
trial. Once accused 1 was done with his questioning
of the
complainant. The rights of the second non-defended accused were
explained thus: “
right
madam, you have the right to now cross-examine or add further
questioning. Do you wish to ask any further questions?”
(The
underlining is mine).
[17]
The
explanation given to accused 2 presupposes that accused 1 asked the
complainant questions on her behalf. The State had a duty
to
establish a case against accused 2 in her own right. The explanation
was woefully inadequate. It is trite that the right to
cross-examine
and the purpose of cross-examination be fully explained to an
unrepresented accused
[10]
.This
includes an explanation that it was the accused’s duty to put
to any State witness any points on which the accused disagreed
with
the witness and to put his version to the witness
[11]
.
Failure to do so meaningfully is a gross irregularity. Accused 2 as
naturally expected, hardly asked any questions. She denied
to have
assaulted the complainant. She put her version that she was the one
who rescued the complainant and the complainant provoked
them.
Thereafter, the state closed its case.
[18]
The
rights of the accused after the closure of the state’s case
were explained thus: “
Sorry,
the state has closed its case and you can do so if you so wish to
present your defence
”.
It is no surprise that both of them chose to remain silent and closed
their case. When the trial magistrate further inquired:
“
Okay,
you do understand that by exercising that right to remain silent, it
is your right to do so. However, your failure to lead
evidence means
that the court is then faced with one version before it
”.
This was too little too late. As the proverbial saying goes
,
‘it was closing the stable door after the horse has bolted’.
[19]
After
the accused were convicted as charged, their procedural rights in
mitigation of sentence were explained thus: “
right,
sir, madam, according to the state’s records, you have no
previous convictions. You are a first offender in the matter.
You may
now address the court on the basis of what is an appropriate
sentence”.
There was no explanation given that the accused may testify in
mitigation of sentence in terms of section 274 (1) of the CPA. The
explanation was inadequate and therefore, irregular.
[20]
I
accordingly conclude that the nature, number, and cumulative effect
of the gross irregularities committed by the trial court were
fatal,
which warrants interference by this court. Consequently, the
proceedings fall to be set aside as there was in sum, a failure
of
justice to the two accused. Cumulatively they fall within the purview
of section 22 of the Superior Court Act
[12]
.
The irregularities referred to above rendered the trial of the two
accused unjust. It is for the above reasons that the convictions
and
sentences were set aside.
T P MUDAU
[Judge of the High Court,
Limpopo Division,
Polokwane]
I agree
M V SEMENYA
[Judge of the High Court,
Limpopo Division,
POLOKWANE]
[1]
R
v Hepworth
1928
AD 265
at 277
[2]
See
Ekurhuleni
West College v Segal and Another
(1287/2018)
[2020] ZASCA 32
(2 April 2020) at [16]
[3]
S
v Lewies
1998 (1) SACR 101(C)
at 103
i,
S
v Ntantisos v Papazayo
2004 (1) SACR 171
(C).
[4]
S
v Joors
2004 (1) SACR 494
(C)
[5]
S
v Raphatle
1995
(2) SACR 452
(T)
at
435
h
,
S
v Manyonyo
1997
(1) SACR 298
(E)
at 300
b
-
e
(1996
(11) BCLR 1463
at 1465J - 1466C) and in
S
v Lewies
1998
(1) SACR 101 (C)
at
104
b,
S
v Hlungwane
2001
(1) SACR 136
(T)
.
[6]
2017
(2) SACR 546
(WCC) at para 40
[7]
1982
(1) SA 828
(A) (supra at 831H - 833B).
[8]
Supra.
[9]
S v
Rall
(supra)
[10]
S
v Mashaba
2004
(1) SACR 214
(T). See, too,
S
v Ndou
2006
(2) SACR 497
(T) at 500.
[11]
See,
too,
S
v Macrae & another
2004 (2) SACR 215
(SCA) at [24].
[12]
Act 10
of 2013