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[2019] ZALMPPHC 43
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S v Masete (REV35/2019) [2019] ZALMPPHC 43 (20 August 2019)
+REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
PROVINCIAL DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO THE JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: REV 35/2019
20/8/2019
In
the matter between:
THE
STATE
And
MASETE
JEFFREY
JUDGMENT
KGANYAGO
J
[1]
The Head of Court Lenyenye Magistrate during his inspection
discovered that this matter was reviewable
in terms of section 302(1)
(a) (i) of the Criminal Procedure Act 51 of 1977 (“the Act”)
and that the additional sentence
imposed on the accused was allegedly
incompetent.
[2]
He wrote a memo to the Acting Magistrate who presided over the
matter. The Acting Magistrate in response to
the memo conceded that
the matter was reviewable and that it was an oversight regarding the
sentence, and that she will abide by
the Judge’s decision. The
Head of Court then referred this matter for special review.
[3]
I have forwarded the memo of the Head of Court to the Deputy Director
of Public Prosecutions (“DDPP”)
Limpopo, Polokwane for
their comments and input. The conclusion of the DDPP is that the
Acting Magistrate did not follow the correct
procedure in convicting
the accused, and that the conviction and sentence should be set aside
and matter be referred back to the
court
a
quo
to proceed
de
novo
before another magistrate.
[4]
The background facts are that the accused was charged with failure to
pay maintenance. It is alleged that
on the 18
th
September 2014 there was an order made against the accused for
monthly payment of R600-00 per momth towards the maintenance of
his
child. There was also an additional order against the accused that he
should buy clothes to the value of R4500-00 for the child
from June
2016 to December 2018. It is alleged that the accused did not buy the
clothes and that he is in arrears with his monthly
payments in the
sum of R17 100-00. Therefore, his total arrears amounted to R21
600-00.
[5]
The accused appeared in court on the 1
st
March 2019 and elected to conduct his own defence after his rights to
legal representation were explained to him. He pleaded not
guilty to
the charge. However, strangely the Acting Magistrate questioned him
in terms of section 112(1) of the Act as if he had
pleaded guilty to
the charge. After questioning in terms of section 112(1) of the Act
he was found guilty as charged.
[6]
In mitigation of sentence the accused stated that he is married and
he is having three children. He is 48
years of age. He is a taxi
owner making an income of R8000-00 to R9000-00 per month. He is
paying a monthly instalment of R14500-00
for the car. He is paying
R2000-00 for household furniture, and R800-00 school fees for the
children.
[7]
The trial court sentenced him to a fine of R6000-00 or six months
imprisonment. The State Prosecutor
applied for a deferred payment on
behalf of the accused. The accused was ordered to pay R2000-00 on 1
st
March 2019 and the remaining balance of R4000-00 to be paid within a
period of two months.
[8]
Section 115 of the CPA provides a procedure to be followed in case an
accused pleads not guilty to the
charges. Section 115(1) and (2) read
as follows:
“
(1)
Where an accused at a summary trial pleads not guilty to the offence
charged, the presiding Judge, regional magistrate, or magistrate,
as
the case may be, may ask him whether he wishes to make a statement
indicating the basis of his defence.
(2)(a) Where an
accused does not make a statement under subsection (1) or does so and
it is not clear from the statement to what
extent he denies or admits
the issues raised by the plea, the court may question the accused in
order to establish which allegations
in the charge are in dispute.
(b)
The court may in its discretion put any question to the accused in
order to clarify any matter raised under subsection (1) or
this
subsection, and shall enquire from the accused whether an allegation
which is not placed in issue by the plea of not
guilty,
may be recorded as
an admission by the accused of that allegation, and if the accused so
consents, such admission shall be recorded
and shall be deemed to be
an admission under section 220.”
[9]
It is common cause that the accused was unrepresented.
In
S v Smith
[1]
at para 466h to 467a the court said:
“
Du
Toit et al Commentary on
Criminal Procedure Act states
in relation to
s 115
that it was designed to give an accused the opportunity to put
forward his defence. Judicial impatience should not frustrate this
aim (
See
generally S v
Dannhauser
1993 (2) SACR 398
(0) at 400 h-I.)
The
learned authors state further (at 18-7) that
‘
the
procedural rights of an unrepresented accused are safeguarded by the
fact that there are several rules of practice in terms
of which a
presiding officer who conducts an explanation of a plea is compelled
to issue certain warnings and give certain explanations
to an
accused. These warnings and explanations which are only necessary in
the case of an accused who has no legal representation
may be
summarised
as follows’
.
The
rules are then enumerated and are intended for the guidance of
judicial officers.”
[10]. This is the extract
of how the accused has pleaded to the charge.
“
COURT:
Mr Masete, how do you plead to the charge?
ACCUSED
PLEADS NOT GUILTY
COURT:
You plead not guilty?
ACCUSED:
Correct. (Inaudible)
COURT: Thank
you Mr Masete for your plea of guilty. Now that you have pleaded
guilty to the offence that you have been charged with
it is the duty
of the court sir to proceed asking you questions in terms of
section
112(1)
(b) of Act 51 of 1977 as amended in order to determine whether
you indeed admit all the elements of this offence if the court is
satisfied that indeed you admit all the elements of this offence…”
[11] From the
transcribed record, it shows that the accused intention was to plead
not guilty to the charge. He even
confirmed that to the court when
asked whether he is pleading not guilty. Since the accused has made
it clear to the court that
he was pleading not guilty to the charge
and since the accused was unrepresented, the court was supposed to
have questioned him
in terms of section 115 of the Act. That would
enable the accused to state his defence, which in turn would have
assisted the court
in putting his defence to the State witnesses.
[12] It does not
appear on the transcribed record the circumstances that led the court
to state that the accused has pleaded
guilty and question him in
terms of section 112(1) (b) of the Act. A presiding officer is
required to keep a complete record of
the plea and its explanation.
[13]
As the accused has pleaded not guilty, the presiding magistrate was
supposed to enquire from the accused the basis of
his defence, and
whether any allegation not placed in issue may be recorded as an
admission. If the accused consented to that,
it was sufficient to
absolve the State from leading any evidence on that aspect.
In
S v Mayedwa
[2]
the court held that meticulous care in recording both such questions
and answers will leave no doubt as to what facts have
been
formally admitted by the accused and what facts still remain to be
proved by the leading of evidence.
[14] In this
case as I have already pointed out in para 12
supra
that it
does
appear
in the transcribed record the circumstances that led to presiding
magistrate to question the accused in terms of section
112(1)(b) of
the Act despite pleading not guilty. That will lead one to guess what
might have transpired. In my view, the defect
in the record in
relation to that portion of the proceedings is so serious that a
proper consideration of the review is not possible,
as material
evidence is missing from the record. The proper remedy is to set
aside the trial proceedings in its entirety. (
See
S v Phakane
[3]
)
[15] The
accused in mitigation of sentence has stated that his monthly
income was between
R8000-00 and R9000-00 per month. His expenses
are R14500-00 for the
instalment of the
car, R2000-00 for household
furniture and R800-00 for school fees. It is clear that his monthly
expenses far exceeded his income. Despite that the court
did not find out from him how he was able to
meet these
expenses with his low income. The court went on to impose a fine of
R6000-00, ordered him to continue paying
the R600-00 maintenance order and further that he reduce his arrears
in monthly instalments of R600-00. All that was done without
conducting a
proper enquiry into the financial affairs of the accused. That
in my
view amounts to a gross irregularity.
[16] The application for
deferred payment was initiated by the State Prosecutor.
It seems that during the application,
the accused wanted to
say something but the
record shows that it was inaudible. After that the court said the
following:
“
COURT: They
will not take it Mr Masele, please just make sure that your, just
make sure that you pay because the Public Prosecutor
has
pleaded with you. Otherwise the court will have no option but to go
back to R6000-00. That is
fair.”
[17]
It seems the accused was pleading with the court to pay a lesser
deferred payment than the R2000-00, but the court
instead of
conducting an enquiry into his financial means, opted to
instil fear
in him by telling him to pay R2000.00 per month or else
he will be required to pay R6000.00 at once. That in my view amounted
to
an irregularity.
[18] Taking
into consideration the record in its totality, the proceedings in my
view, are not in accordance with justice.
It follows that the
proceedings stand to be reviewed and set aside.
[19] In the
result the following order is made:
19.1
The conviction and sentence are set aside.
19.2
The matter is remitted to the court
a
quo
for a trial
de
novo
before a
different magistrate.
MF
KGANYAGO J
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA, LIMPOPO DIVISION, POLOKWANE
I agree
MV
SEMENYA J
JUDGE
OF THE HIGH COURT OF
SOUTH AFRICA, LIMPOPO
DIVISION
[1]
2002(2) SACR 464 © AT 466 H TO 476
[2]
1978(1) SA 509 (E) at 511 F
[3]
2018 (1) SACR 300(CC)
at 40-41