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[2019] ZAFSHC 153
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S v Fredericks (293/2018) [2019] ZAFSHC 153 (5 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No: 293/2018
In
the matter between:
THE
STATE
And
BOETA
FREDERICKS
CORAM:
MOLITSOANE, J
et
MOENG, AJ
JUDGMENT:
MOENG, AJ
DELIVERED
ON:
5
SEPTEMBER 2019
[1]
This matter was submitted to this court for automatic review in terms
of section 302 of the Criminal Procedure Act, 51 of 1977
(the CPA).
The
accused was convicted and sentenced, based on his plea of guilty, in
the Magistrates' Court Clocolan, on one count of contravention
of
section 59
of the
National Road Traffic Act 93 of 1996
–
Exceeding the general speed limit.
[2] He was sentenced to
R4000.00 or six months imprisonment, half of which was suspended for
three years on condition that he is
not convicted of contravention of
section 59(4)
of Act 93 of 1996, committed during the period of
suspension.
[3]
The record was placed before Rampai J to determine whether
the
proceedings were in accordance with justice. The following query was
directed to the magistrate:
1.
Whether
or not the accused admitted that the traffic officer concerned was
trained and qualified to operate the speed measuring
device;
2.
Whether
or not the accused admitted the device was in a good and proper
functioning condition and;
3.
Whether
or not the accused admitted that such device was serviced by the
manufacturer within a period of six months immediately
preceding the
date of the offence, being 20 September 2018.
[4]
The query was received by the clerk of the court on 24 December 2018.
In her response, dated 16 August 2019, the magistrate
commented as
follows:
‘
I concede that the
requirements as set out in State versus Phuzi were not ascertained by
the Court, and therefore I erred in finding
that the accused admits
all the allegations contained in the charge. Conviction and sentence
may be set aside. I further apologise
for the delay in responding to
these reviews they were only brought to my attention at a very late
stage.’
[5]
The transcribed record of the proceedings reflect that the following
questions were posed by the magistrate during the questioning
in
terms of section 112(1)(b) of the CPA:
COURT
:
On 19 September 2018 were you on R26 a public road in the district of
Clocolan?
ACCUSED
:
Yes.
COURT
:
Were you driving a motor vehicle to wit a VW Polo Vivo with
registration number HCC … FS?
ACCUSED
:
Yes.
COURT
:
And with what speed were you travelling?
ACCUSED
:
150 Your Worship.
COURT
:
And what is the speed limit in that zone?
ACCUSED
:
100 Your Worship.
COURT
:
Okay and do you admit that your actions were unlawful and
intentional?
ACCUSED
:
Correct so your worship.
COURT
:
Does the State accept the plea?
The
magistrate proceeded to convict the accused as charged.
[6]
The duties of a judicial officer under section 112(1)(b) of the CPA
are dual: (a) He or she has to question the accused with
reference to
the alleged facts of the case in order to ascertain whether the
accused admits the allegations in the charge and (b)
to satisfy him
or herself that the accused is guilty of the offence to which he has
pleaded guilty to. In
S v Mshengu
2009 (2) SACR 316
(SCA) at 318 E, Jafta JA, stated that the primary purpose of the
written statement in terms of s 112(2) of the CPA (
in casu
section 112(1)(b) of the CPA) is to set out the admissions of the
accused and the factual basis supporting his or her guilty plea.
[7]
It has been repeatedly stated by our courts that the questioning of
an accused is intended as a cautionary measure to reduce
the risk of
an erroneous conviction on a plea of guilty. (Compare
S
v Kholoane
2012 (1) SACR 8
(FB) at para [5]). In
S
v Mshengu
supra,
Jafta JA, referred with approval to
S
v M
1982
(1) SA 240
(N) at 242D-E, where it was put thus by Didcott J:
'Accused persons
sometimes plead guilty to charges, experience shows, without
understanding fully what these encompass. The danger
of doing so is
obvious in a society like ours, which sees many who are illiterate
and unsophisticated coming before the courts
with no legal
assistance…’
[8]
It is clear from the record that the accused was not given an
opportunity to tell his story. The facts upon which the conviction
followed were therefore never placed before the magistrate. Except
for the question relating to the speed that the accused travelled
and
the general speed limit of the road concerned, all questions were
leading. The questions were not aimed at eliciting the facts
upon
which the magistrate could
ascertain
whether the accused admitted the allegations in the charge.
[9]
It is in this context important to reiterate that leading questions
are not
per
se
irregular. Such questions may be posed as a form of introduction
guiding the accused to the occurrence that led to his arrest.
Such
questions may also be posed to confirm aspects that were already
placed on record by the accused or left out by him when telling
his
story, but should be supplemented by questions inducing factual
responses to prove or disprove the element raised by the question.
It
is, however, improper on material issues, to put leading questions to
the accused without further ado.
[10]
The easiest method of applying section 112(1) (b) is for the accused
to be invited to explain what happened
and
be questioned with reference to the facts that he or she placed on
record. In my view the requirement that the presiding officer
had to
be satisfied that the accused is guilty envisages that he or she be
satisfied that there is sufficient factual support for
the admissions
in the plea.
The
posing of leading questions, the answers to which are either yes
or no, did not elicit the truth since the answer was suggested
in the
question.
[11]
The question whether the accused admitted that his actions were
unlawful and intentional related to a conclusion of law that
had to
be derived from the facts placed before the magistrate. It is
self-evident that an unsophisticated accused would not
understand the
import of such terms. Questions put to an accused in terms of section
112(1)(b) are questions about the factual
elements of a criminal
offence, not questions about conclusions of law. See
S v Zerky
2010 (1) SACR 460
(KZP) at 469d–e.
[12]
Turning to the query that was directed to the magistrate, the
elements
of exceeding the speed limit were succinctly set out by a full bench
of this division in
S
v Phuzi
(R254/2018)
[2018] ZAFSHC 213
(28 December 2018)
.
Musi AJP held as follows at para 29:
‘
In order to prove
that the speed limit was exceeded the State would have to prove that
the speed measuring device was reliable for
the purpose; that it
determined and registered the speed accurately and that it was
properly set up in accordance with the manufacturer’s
specifications. It is axiomatic that a properly trained person would
be able to set up the device in accordance with the manufacturer’s
specifications’.
[13]
He proceeded at para 30 as follows:
‘
The court
cannot take judicial notice of the fact that the person who operated
the device is trained to do so. The court can also
not take judicial
notice of the fact that all traffic officers are trained to set up
speed measuring devices. Likewise, it cannot
take judicial notice of
the fact the speed measuring device functioned properly’.
[14]
The concession by the magistrate was therefore correctly made. I am
satisfied that the questioning of the accused was inadequate
and did
not achieve the purpose envisaged by section 112(1)(b). In my view,
the magistrate failed to protect the accused from the
consequences of
an unjustified plea of guilty.
[15]
I find it apposite to comment on the inordinate delay in responding
to the queries directed by Rampai J on 6 December 2018.
From the
court date stamp, the query was received by the clerk of court on 24
December 2018. The magistrate only responded to the
query on 16
August 2019, approximately eight months after it was received by the
clerk of court. The magistrate’s response
reached the Registrar
of this court on 27 August 2019.
[16]
The magistrate apologised for the delay and indicated that the review
was brought to her attention at a very late stage. Her
response
unfortunately lacks in detail. It is not clear who was responsible
for bringing the reviews to her at such a late stage
and when this
happened. It was important to provide a detailed explanation of
the delay. Whoever was remiss in the execution
of their duties must
account for their ineptitude.
[17]
Without fear of stating the obvious, queries directed to magistrates
by reviewing judges should be dealt with urgently. This
is so as the
procedure of automatic review provides urgent protection to a large
number of unrepresented accused. Delays in submitting
review records
and responding to queries affects a number of the accused
constitutional rights. Measures should therefore be put
in place to
prevent a recurrence.
[18]
In
S v Jacobs and Six Similar Matters
2017 (2) SACR 546
(WCC), Sher AJ (Henney J concurring), stated at para 39 as follows:
'The very fact, that from
1963 to date the law reports are littered with cases in which judges
have regularly lambasted magistrates
for failing to comply with the
provisions in question
(either
by sending through records well outside the time limits provided or
by failing to ensure that the records are complete),
illustrates that
the system is not working and that it is high time that effective
measures be put in place to rectify this.’
[19]
In this division, various judges have likewise expressed their
displeasure with the delays in submitting reviews and responding
to
queries. In
S
v P
(unreported, FB case no 322/2013, 5 June 2014) at [12]–[14],
Mbhele AJ urged the Department of Justice and Constitutional
Development to provide the magistrates’ courts with dependable
and dedicated support staff to ensure the effective functioning
of
the courts’ administration and do justice to an accused’s
constitutional right to a fair trial. In
S
v Tshabalala
(unreported, FB review no 102/2015, 5 May 2016) at [10]–[14])
the court emphasised that where a
matter
has
been
sent
on
review
to
the
High
Court
and
such
court
requests
a
magistrate
to
furnish
reasons
for the
conviction
or
sentence,
the
magistrate should regard
such
request
as
one
of
an
extremely
urgent
nature.
Steps should be taken to ensure that a recurrence of the above does
not happen.
[17]
In the result I propose to make the following order:
1.
The
conviction and sentence are set aside;
2.
A
copy
of
this
judgment
must
be
forwarded
to
the
Chief
Magistrate
Bloemfontein and the Area Court Manager with specific reference
to
paragraphs [15]
to
[19]
of
this
judgment;
3.
The
Chief Magistrate and Area Court Manager are directed to conduct an
enquiry in order to determine whether;
i.
the
clerk of the criminal court and or any other officials were negligent
in failing to take steps to ensure that the query was
handed to the
magistrate timeously and to take appropriate steps if such officials
were remiss or;
ii.
whether
the magistrate was remiss in timeously attending to the query
and
to
consider whether the magistrate's conduct in relation to the delay
warrant the institution of disciplinary proceedings by the
Magistrates Commission
;
_____________________
L.B.J.
MOENG, AJ
I
concur and it is so ordered.
_____________________
P.E.
MOLITSOANE,
J