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[2019] ZANCHC 35
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S v Ryk (CA & R 49/2019) [2019] ZANCHC 35 (30 August 2019)
Reportable:
YES
/ NO
Circulate to Judges:
YES
/
NO
Circulate to
Magistrates:
YES
/ NO
In
the High Court of South Africa
(
Northern
Cape Division, Kimberley
)
Case
No: CA & R 49/2019
In
the matter between:
THE
STATE
and
INGRID
RYK
Date: 30 August 2019
Corum:
Phatshoane J and Smith AJ
REVIEW JUDGMENT
Smith AJ
1.
This
matter comes before us by way of a special review in terms of s 304
of the Criminal Procedure Act, 51 of 1977 (“the CPA”).
The 19 year old Ms Ingrid Ryk, the accused, was arraigned before
Magistrate J Klasse in the Regional Court held at Springbok on
two
counts of housebreaking with the intent to steal and theft. In
respect of Count 1 the State alleged that on 03 April 2018 she
had
unlawfully and intentionally broke into the bedroom of Mr Petrus
Muhambo with the intention to steal and stole Mr Muhambo’s
two
cellular phones. On Count 2 it is said that, on that same date, she
unlawfully and intentionally broke into the bedroom of
Ms Maria
Roberts with the intention to steal and stole her duvet cover.
2.
The
accused pleaded guilty to both counts. In a nutshell, she explained
that she broke into Mr Muhambo’s flat with the intention
to
steal and stole his two cell phones. She also admitted having
unlawfully and intentionally broken into Ms Roberts’s flat
and
intentionally stole her duvet cover. She says that on that fateful
evening she went to a block of flats situated at Verstesuiwer,
Rooiwal, Namakwaland, where she threw a brick onto a window of
complainant’s (Mr Muhambo) apartment. Its shards cut her hand
which started bleeding. She open the window from the outside and
gained entry into the flat. She then took two cellular phones
so as
to permanently deprive the owner thereof of its ownership and left
the apartment. She proceeded to Ms Roberts’ apartment
where she
also threw a brick onto the window of her bedroom and gained entry.
She then took one duvet cover and permanently deprived
Ms Roberts of
its ownership. Thereafter, she went home to sleep. On the next
morning her grandfather woke her up upon the arrival
of the members
of the South African Police. She gave the Police the two cellular
phones that she had stolen. The duvet was covered
in blood. She was
apprehended. She acknowledged that she had no right or permission to
act in the manner that she did.
3.
On
the basis of the aforesaid plea the Magistrate returned the guilty
verdict on 05 September 2018. The State did not prove any
previous
convictions on the part of the accused. Counsel for the accused, Mr
Richards, was afforded an opportunity to address the
Court in
mitigation of the sentence. Prior to the address by the prosecutor in
aggravation, in light of the accused’s age,
the Magistrate
requested that the probation officer’s report be placed before
Court for its consideration.
4.
Two
reports by probation officers were filed with the Court on 03 October
2018. The Magistrate noted, from the reports filed, that
the
accused’s grandfather, Mr Abraham Oortman, had remarked that
she was mentally disabled. He then called the grandfather
to testify
regarding the accused’s condition which he did as follows:
“
Mnr
Oortman : “Nee, sy is nie. Ek verstaan haar nie.”
Hof:
“Hoekom se oupa so”
Mnr
Oortman: “Die kind is net eie ek”
Hof:
“Ekskuus”
Mnr
Oortman: “ Die kind is eie ek, Die maak net soos sy lus het en
se vir ons wat sy wil en … (onduidelik)”
[1]
5.
Mr
Oortman explained that the accused was once struck with a brick on
her head and had since behaved in a rude and disrespectful
manner. He
went on to say:
Hof:
“Ja maar wat doen sy? Hoekom sè ek wil weet wat doen sy
wat u sè sy gaan aan?”
Mnr
Oortman: “ Sy gaan aan soos sy skel ons en vloek ons en sy
gaan, sulke dinge sy doen, sy het niks maniere nie, sommige
tye…”
Hof:
“So sy is maar soms net onbeskof?”
Mnr
Oortman: “Ja sy is baie, sy is nie reg nie”
[2]
6.
Counsel
for the accused, Mr Richards, remarked:
[3]
“
Ja
maar ek, soos ek se uit konsultasies, Edelagbare en ek het nou al n
hele paar sake gehad waar n mens net agterkom maar iets is
nie pluis
hier nie, maar ek het nie die indruk gekry nie. Ek het dalk ‘n
indruk gekry dat die persoon nie gevorder het op
skool nie, maar dit
opsigself is nie aanduidend dat ‘n persoon nie geestes of
geesesversteurdheid het Edelagbare, maar net
wel miskien ʼn
intelektuele agterstand.”
7.
Following
the testimony of Mr Oortman the Magistrate could still not establish
whether the accused was capable of understanding
the nature of the
proceedings. Therefore, he suggested that the accused be subjected to
an evaluation by a psychiatrist or clinical
psychologist to obtain
clarification on her mental state before he could impose a sentence.
When the Court reconvened on 12 December
2018 a report dated 03
December 2018 by Doctor GP Monroe, a specialist psychiatrist of West
End Specialised Hospital, Mental Health
and DR TB Services, Northern
Cape Department of Health, was placed before the Court. It reads:
‘
This
is to certify that I have evaluated the mental state of the above
mentioned person in West End Specialised Hospital today 03.12.2018
as
requested.
The
evaluation consisted of interviews with the accused, her grandfather
and perusal of SAPS docket.
According
to information at hand the accused left school in Grade 6 for no
apparent reason. It seems that her biological parents
neglected her
and her twin brother. She is raised by her grandparents.
During
the evaluation the accused presented scanty account of herself. She
had poor ability to understand basic concepts and poor
ability to
verbalize her thoughts. She presented with poor account of events
during the alleged offence…..
In
my opinion the accused will find it difficult to follow Court
proceedings so as to make a defence.
’
8.
On
the basis of the aforesaid report the Magistrate postponed the
proceedings to 13 February 2019 and explained:
‘
Ek
sal maar nou net die saak eers uitsel na 13 Februarie na aanleiding
van die psigiater se aanbeveling om nou te bepaal moet ek
dan nou
die, moet ek nou op hierdie stadium ‘n pleit van onskuldig
notuleer of moet ek dan nou maar die saak vir spesiale
hersiening
stuur…’
9.
The
proceedings of 13 February 2019 were not transmitted to this Court.
Be that as it may, the opinion by the Doctor that the accused
will
find it difficult to follow the Court proceedings so as to make a
defence, weighed with the Magistrate and created doubt in
his mind
whether the plea of guilty had correctly been entered. He, therefore,
referred the case to this Court for a special review.
In his
correspondence dated 05 July 2019 he states:
“
Tydens
vonnis oplegging en gesprekvoering met haar gedurende die
verrigtinge, het ek besef dat sy abnormaal optree. Ek het gevolglik
haar oupa opgeroep as getuie, en het hy my vermoede gestaaf en het ek
haar verwys vir psigiatriese evaluasie.
Dit
blyk uit die verslag van die psigiater dat “the accused will
find it difficult to follow court proceedings so as to make
a
defence.”
In
die lig hiervan word die saak op spesiale hersiening gestuur, met die
versoek dat sy Edele die Hersieningsregter die verrigtinge
tersyde
sal stel. Ek is van mening dat om op hierdie stadium ʼn pleit van
onskuldig te notuleer in terme van Artikel 113 van
Wet 51 van 1977,
geen doel gaan dien as gevolg van die bevinding van die psigiater
nie.”
10.
Upon
receipt of the record I requested the office of the Director of
Public Prosecutions to provide its legal opinion on the matter.
I am
thankful to Adv C.G Jansen for her memorandum in this regard.
She is of the view that the matter be remitted to the trial
magistrate who has a discretion either to act in terms of s113(1) of
the CPA or to request the prosecutor to place the accused
on the
waiting list for a formal forensic observation to be conducted as
contemplated in s79(2) of the CPA.
11.
Section
113 (1) of the CPA provides:
“
If
the court at any stage of the proceedings under section 112(1)(a) or
(b) or 112(2) and
before
sentence is passed
is in doubt whether the accused is in law, guilty of the offence to
which he or she has pleaded guilty or if it is alleged or appears
to
the court that the accused does not admit an allegation in the charge
or that the accused has incorrectly admitted any such
allegation or
that the accused has a valid defence to the charge or if the court is
of the opinion for any other reason that the
accused’s plea of
guilty should not stand, the court shall record a plea of not guilty
and require the prosecutor to proceed
with the prosecution. Provided
that any allegation, other than an allegation referred to above,
admitted by the accused up to the
stage at which the court records a
plea of not guilty, shall stand as proof in any court of such
allegation.”
Section 113(2) reads:
“
If
the court records a plea of not guilty under subsection (1) before
any evidence has been led, the prosecution shall proceed on
the
original charge laid against the accused, unless the prosecutor
explicitly indicates otherwise.”
12.
The
import of s113(1) is that where a Court has doubt whether the accused
admitted or admits an allegation in the charge sheet,
or whether such
admission was correctly made regarding either guilt or the possible
existence of a defence, a plea of not guilty
must be noted. Doubt can
arise from a reply during the initial questioning or during argument,
or from the information furnished
during the sentencing phase or from
questions or any other material evidence which is provided to the
Court. The procedure encapsulated
in s113(1) applies from initial
questioning of the accused in terms of s112 of the CPA up to a stage
before the imposition of sentence.
13.
One
of the circumstances in which s113(1) of the CPA can be invoked is
where the criminal capacity of an accused is brought into
question in
the course of the proceedings. In
S
v Aranoff
,
[4]
in
almost similar circumstances such as the present, the Court laid down
the following guidance:
‘
The
regional magistrate had the power under s 113 of the Act, once he
made the finding that accused was not criminally responsible
for his
deed, to "enter a plea of not guilty and require the prosecutor
to proceed with the prosecution". Such an entry
of a plea of not
guilty would have resulted in the earlier conviction automatically
falling away. See
S
v Du Plessis
1978
(2) SA 496
(C);
S
v Lukele
1978
(4) SA 450
(T). For future guidance, this is the procedure which
should be followed.
14.
In
Sv
Aranoff
supra the Magistrate had made an or order in terms of s78(6) of the
CPA that the accused was not guilty and had to be detained
in a
mental hospital or prison pending the signification of the decision
by the State President. The Court held that no specific
authority was
embodied in s78(6) to set aside the verdict of guilty. A finding of
not guilty was inconsistent with the earlier
finding of guilty which
was made before the evidence of the doctors came to light. It
therefore set aside the existing conviction.
15.
There
would be no need in this case to set aside the conviction. On the
basis of the aforesaid authority, I am of the view that
the
Magistrate ought to have changed the guilty plea to that of not
guilty in terms of s113(1) of the CPA.
16.
It
does not appear that the doctor perused the record of the proceedings
for purposes of the one day evaluation he conducted on
the accused. A
perusal of the record was pertinent because the accused had given a
comprehensive plea explanation which fully disclosed
all material
facts which created the impression that she admitted all the elements
of both the offences with which she was charged.
It further appeared
that she was of a sound and sober mind and understood the
proceedings. In my view, the psychiatrist’s
report handed in
evidence did not sufficiently establish that the accused had no
criminal capacity. To my mind, a mental observation
period of 30 days
in terms of s79(2)(a) of the CPA would have been more appropriate.
17.
From
the aforegoing analysis, I am of the view that this matter be
referred back to the Magistrate to be disposed of in terms of
s113 of
the CPA. I make the following order.
Order:
The matter is remitted to
the Presiding Magistrate, Mr J Klasse, to be disposed of in terms of
s113(1)
of the
Criminal Procedure Act, 51 of 1977
.
SMITH
V.M
Acting Judge
Northern Cape Division
Phatshoane J concurs in
the Judgment of Smit AJ
[1]
See
the record pages 76 lines 16-21
[2]
See
record page 78 lines 19-25
[3]
See
Page 80 of the record
[4]
1979
(2) SA 179
(T) at 180D-E