Summary of Judgment

1. Introduction

This judgment concerns a special review conducted by the High Court of South Africa, Free State Division, Bloemfontein, in terms of section 304(4) of the Criminal Procedure Act 51 of 1977. The review followed the internal, systematic checking of completed criminal cases within the Bloemfontein Magistrates’ Court cluster.

The parties were the State and Mxoleni Johan Salakufa (the accused). The review was initiated after the acting senior magistrate prepared a request for special review on 30 November 2018 in respect of criminal proceedings finalised on 29 May 2018 in the magistrates’ court. The acting senior magistrate requested comment from the trial magistrate, received a response dated 25 January 2019, and ultimately received the record and charge sheet on 20 September 2019, against a background of acknowledged administrative delay and poor communication.

The general subject matter was whether the accused’s conviction and sentence for an offence described in court as “driving under the influence of liquor or drugs” were in accordance with justice, having regard to alleged procedural irregularities relating to the formulation and reading of the charge, the accused’s right to legal representation, the application of section 112 plea procedures, the right of address, and the competence of ancillary orders (including a section 35 National Road Traffic Act enquiry and the absence of a section 103 Firearms Control Act enquiry). The relief sought on review was the setting aside of the conviction and sentence imposed on 29 May 2018.

2. Material Facts

The court relied on the magistrates’ court transcript and charge sheet. It was common cause on the record that the accused was legally represented when the matter commenced and that the charge was initially put to the accused in abbreviated terms as “Driving under the influence of liquor or drugs.” The accused’s legal representative indicated that the charge had not been read to the accused, which the magistrate accepted.

The accused pleaded guilty. The legal representative then informed the court that the plea was not in accordance with his instructions because there were originally two charges, and the matter was adjourned for the representative to consult. When proceedings resumed, the prosecutor indicated that the charge had already been put to the accused and that the legal representative would address the court. At that point, the legal representative asked to be excused for “ethical reasons”; the court noted the withdrawal and excused him. The magistrate then noted a plea of guilty and proceeded without affording the accused an opportunity to obtain alternative representation or to make an informed election regarding representation.

The magistrate convicted the accused in terms of section 112(1)(a) of the Criminal Procedure Act and immediately thereafter purported to “correct” herself by questioning the accused under section 112(1)(b). During that questioning, the accused stated, in substance, that he was not drunk when he drove (“No I was not drunk … I was not that drunk …”). The magistrate nonetheless treated the matter as if the accused conceded intoxication and ultimately pronounced the accused guilty again, while indicating that she disregarded aspects of his responses.

The accused was sentenced to a fine of R1500 or 3 months’ imprisonment, wholly suspended for three years on condition that he is not found guilty of contravening the National Road Traffic Act 93 of 1996, with a notation that section 35 of that Act was “not invoked.” The court record reflected only a brief exchange about whether the accused was a licensed driver (he answered he was not) and whether he understood the court could make an order that he never have a driver’s licence (he answered yes). No further enquiry was conducted on that issue.

The annexure to the charge sheet contained fuller allegations framed as a contravention of section 65(1)(a)/(b) of the National Road Traffic Act 93 of 1996, with extensive listed read-with provisions, alleging that on 4 February 2018 at Andries Lubbe Street, Ipopeng, a public road in the district of Fauresmith, the accused wrongfully drove a Ford Cortina with a specified registration number while under the influence of intoxicating liquor or a drug. The reviewing court treated it as material that this fuller formulation of the charge was never read out to the accused in the proceedings reflected by the transcript.

Additional procedural omissions relied upon by the reviewing court included that neither the prosecutor nor the accused were afforded an opportunity to address the court before judgment, that the accused was not informed of rights relating to the consequences of answering court questions during the plea enquiry (and the availability of section 113), that no enquiry was conducted under section 103 of the Firearms Control Act 60 of 2000, and that the accused was not informed of his rights to apply for leave to appeal against the conviction, sentence, or the section 35-related order.

3. Legal Issues

The central legal questions were whether the magistrates’ court proceedings were “in accordance with justice” for purposes of special review, and in particular whether the cumulative irregularities required the conviction and sentence to be set aside.

The issues were primarily concerned with the application of legal rules to the recorded procedural facts, rather than the resolution of contested factual disputes about the commission of the underlying driving offence. The reviewing court’s assessment required determining whether procedural steps taken (and omitted) in relation to the charge, representation, plea procedure, and ancillary enquiries complied with constitutional and statutory requirements, and whether deviations constituted irregularities sufficient to vitiate the proceedings.

The review also involved evaluative determinations regarding the propriety of using section 112(1)(a) for the offence in question, the correctness of the magistrate’s handling of an attempted “correction” after conviction (with reference to section 176), and the competence of the suspension condition and the section 35 National Road Traffic Act handling.

4. Court’s Reasoning

The reviewing court began from the proposition that an accused must be informed of the case the State intends to pursue with sufficient clarity, and that the validity of a charge is governed by section 84(1) of the Criminal Procedure Act 51 of 1977, which requires that the offence and essential particulars be set out in a manner reasonably sufficient to inform the accused of the nature of the charge. On the transcript, the charge put to the accused was abbreviated and the fuller charge contained in the annexure was not read to him; the court considered that the charge as put did not comply with the statutory standard of adequacy.

On legal representation, the reviewing court treated the accused’s constitutional right to representation under section 35(3)(f) and (g) of the Constitution of the Republic of South Africa, 1996 as integral to a fair trial. Relying on S v Sokoi [2017] ZAFSHC 201 (10 August 2017), the court reasoned that where a legal representative withdraws, a failure to advise an accused of the right to seek a postponement to obtain alternative representation may constitute a gross irregularity. In the present matter, once counsel withdrew for “ethical reasons,” the magistrate proceeded immediately without giving the accused an opportunity to obtain another legal representative or to make an informed election to proceed unrepresented. The court held that even though the accused did not request a postponement, it could not be excluded that he would have done so if properly informed of his rights.

The reviewing court further addressed the plea procedure and the handling of sections 112(1)(a), 112(1)(b), 113, and 176 of the Criminal Procedure Act. The court noted that section 112(1)(b) is designed to protect an accused from the consequences of an unjustified guilty plea and must be applied with care, particularly where answers suggest a possible defence or a reasonable explanation consistent with innocence. In this respect, the court relied on S v Naidoo 1989 (2) SA 114 (A) and also referenced S v Aucamp and Six Similar Cases 2002 (1) SACR 524 (E). On the record, during questioning the accused stated that he was not drunk (or not “that drunk”), which the reviewing court treated as suggesting at least a possible defence or lack of clear admission. The magistrate’s approach—convicting under section 112(1)(a), then “correcting” herself by questioning under section 112(1)(b), and disregarding the accused’s responses—was considered improper. The reviewing court also found it material that the accused’s right to remain silent and the implications of answering questions, as well as the provisions of section 113, were not explained to him.

Regarding the purported “correction,” the reviewing court considered it unclear whether the magistrate was correcting the plea process or correcting a judgment already delivered, and in either event held that the manner of effecting the correction was irregular. It referred to section 176 of the Criminal Procedure Act (amendment of judgment before or immediately after recording) and concluded that the process followed did not comply with proper procedure.

The reviewing court also evaluated the appropriateness of using section 112(1)(a) for the offence of driving under the influence. It treated such offences as serious and not “inconsequential” or trivial, referring to the public safety purpose of the statutory regime and citing Director of Public Prosecutions v Klue [2003] 1 All SA 306 (E). It also relied on S v Nangu, S v January and S v Nayika [2012] JOL 28376 (ECP) for the proposition that it is highly undesirable to use section 112(1)(a) for such offences, which are ordinarily not regarded as minor transgressions.

The court further found an irregularity in that neither the prosecutor nor the accused were given an opportunity to address the court before judgment, which it described as a denial of the accused’s fair trial rights, identifying this as a breach associated with section 175 of the Criminal Procedure Act.

On sentence, the reviewing court criticised the condition attached to the suspension as overly wide and defective in its formulation, including that it was not confined to a specific contravention and did not expressly relate to contraventions committed during the period of suspension, rendering it reliant upon conviction irrespective of timeframe.

In relation to the section 35 National Road Traffic Act aspect, the reviewing court stated that the legal position is that, upon conviction, the driving licence of an offender is automatically suspended by operation of law, and that an enquiry is required after sentence to determine whether the automatic suspension should be lifted. The offender must be called upon to provide cogent reasons and the prosecutor must be afforded an opportunity to make submissions. The reviewing court held that the brief exchange recorded did not constitute a proper enquiry. It also held that because the accused indicated he had no driving licence, the magistrate should have considered an order under section 35(2), and that the order made was not competent.

With respect to the Firearms Control Act 60 of 2000, the reviewing court noted that no enquiry was conducted under section 103. It observed, however, that because no order was made, the accused remained unfit ex lege to possess a firearm in terms of section 103(1)(j).

Finally, the reviewing court recorded that the accused was not informed of his rights to apply for leave to appeal. Considering the cumulative effect of the irregularities, the court concluded that the proceedings were not in accordance with justice. It held that once the conviction fell to be set aside, the sentence and the section 35-related order necessarily fell away as well because they depended on the conviction.

5. Outcome and Relief

The High Court set aside the conviction and sentence imposed on 29 May 2018. The matter was remitted to the lower court with an instruction that a plea of not guilty be entered.

The judgment did not make a costs order.

Cases Cited

S v Sokoi [2017] ZAFSHC 201 (10 August 2017)

S v Naidoo 1989 (2) SA 114 (A)

S v Aucamp and Six Similar Cases 2002 (1) SACR 524 (E)

Director of Public Prosecutions v Klue [2003] 1 All SA 306 (E)

S v Nangu, S v January and S v Nayika [2012] JOL 28376 (ECP)

Legislation Cited

Constitution of the Republic of South Africa, 1996, section 35(3)(f) and section 35(3)(g)

Criminal Procedure Act 51 of 1977, sections 84(1), 112(1)(a), 112(1)(b), 113, 175, 176, and 304(4)

National Road Traffic Act 93 of 1996, section 65(1)(a)/(b) (as reflected in the charge sheet annexure) and section 35 (including section 35(2) as discussed)

Firearms Control Act 60 of 2000, section 103 (including section 103(1)(j) as discussed)

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the magistrates’ court proceedings were not in accordance with justice due to multiple procedural irregularities, including an inadequate formulation and reading of the charge, the failure to protect the accused’s right to legal representation after counsel’s withdrawal, an improper and confusing application of section 112 plea procedures (including disregarding responses suggestive of a defence), the failure to afford the parties a right of address, and defects in the sentencing condition and the handling of the section 35 National Road Traffic Act enquiry.

It held that these irregularities justified setting aside the conviction, with the consequence that the sentence and related orders could not stand. The matter was remitted to the lower court with an instruction to enter a plea of not guilty.

LEGAL PRINCIPLES

A criminal charge must comply with section 84(1) of the Criminal Procedure Act 51 of 1977 by setting out the offence and sufficient particulars in a manner reasonably sufficient to inform the accused of the nature of the charge; an abbreviated or inadequately conveyed charge may undermine the fairness of proceedings.

The constitutional right to legal representation under section 35(3)(f) and (g) of the Constitution requires that, where a legal representative withdraws, an accused should be afforded a meaningful opportunity to obtain alternative representation or make an informed election to proceed without representation; failure to do so may constitute a reviewable irregularity, consistent with S v Sokoi [2017] ZAFSHC 201 (10 August 2017).

The protective purpose of section 112(1)(b) requires careful questioning where a guilty plea is tendered; if answers suggest a possible defence or provide an explanation consistent with innocence, the matter should not be concluded on the guilty plea alone and the mechanism in section 113 must be properly understood and applied, in line with S v Naidoo 1989 (2) SA 114 (A) and S v Aucamp and Six Similar Cases 2002 (1) SACR 524 (E).

It is undesirable to treat driving under the influence offences as minor matters appropriate for disposal under section 112(1)(a), given the seriousness attributed to such offences in the case law, including Director of Public Prosecutions v Klue [2003] 1 All SA 306 (E) and S v Nangu, S v January and S v Nayika [2012] JOL 28376 (ECP).

Before judgment, the parties should be afforded an opportunity to address the court; a failure to do so constitutes an irregularity affecting the fairness of the trial process (as identified with reference to section 175 of the Criminal Procedure Act).

Orders and sentencing conditions must be competently framed and legally coherent. In relation to section 35 of the National Road Traffic Act 93 of 1996, the enquiry concerning licence suspension must be properly conducted, with an opportunity for the offender to provide reasons and for the prosecutor to make submissions; an inadequate enquiry and an incompetent order warrant interference on review.