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[2018] ZAFSHC 144
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The State v Motladile (R91/2018) [2018] ZAFSHC 144; 2019 (1) SACR 415 (FB) (21 September 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Review No.: R
91/2018
In
the review between:
THE
STATE
versus
GODFREY
MOTLADILE
CORAM
:
MBHELE,
J et MOLITSOANE, J
JUDGMENT
BY
:
MBHELE,
J
DELIVERED
ON
:
21
SEPTEMBER 2018
[1]
The matter served before
us by way of special review in terms of
section 304(4)
of the
Criminal Procedure Act 51 of 1977
. The accused, who was
unrepresented, was convicted of contravention of
Section 4(b)
read with
sections 1
,
13
,
17
,
18
,
19
,
20
,
21
,
22
,
23
,
24
,
25
and
64
of the
Drugs and Drug Trafficking Act 140 of 1992
, possession of
methaqualone in the form of 39 Mandrax tablets.
[2]
The accused pleaded
guilty and was convicted summarily after the provisions of
section
112(1)
(a) of Act 51 of 1977 were invoked. The presiding magistrate
failed to question the accused in terms of
section 112
of the
Criminal Procedure Act to
establish whether the accused appreciated
the consequences of his plea and whether he admitted all the elements
of the offence
he was charged of.
[3]
The charge as put to the accused reads as follows:
“
the accused
contravened
Section 4
(b) of Act 140 of 1992, in that upon or about
the 4th day of November 2017, and at or near Heidedal in the
Magisterial
district of Bloemfontein, he (the
accused) did and unlawfully have in his possession/ or use an
undesirable dependence
producing substance as listed in part III of
Schedule 2 of the said Act.
”
The charge sheet did not
allege that the accused had an intention to possess the said
undesirable dependence producing substance
nor was the accused asked
whether he knew and understood what an undesirable dependence
producing substance was.
[4]
The above discrepancies caught the vigilant eye of the senior
magistrate who invoked the provisions of section
304 (4) of the
Criminal Procedure Act with
the following request:
“
In the light of
the above irregularities, it is submitted that the proceedings were
not in accordance with justice. Thus the Honourable
reviewing Judge
is requested to set aside the conviction and sentence.
”
[5]
Having perused the record, I am in agreement with the senior
magistrate that the proceedings in this
matter were not in accordance
with justice. The accused, unrepresented as he was, was confronted
with legal phrases and statutory
definitions which were beyond his
purview. With the accused not asked to explain his personal
knowledge of the substance
he was being charged of, it follows that
there was no proof that the substance allegedly found in the
accused’s possession
was an undesirable dependence producing
substance. The accused did not receive a fair trial in this
respect.
[6]
The right to a fair trial is confirmed by section 35(3) of the
Constitution which, inter alia, provides
as follows:
“
(3)
Every accused person has a right to a fair trial, which includes the
right-
(a)
to be informed of the charge with sufficient detail to answer it
;”
[7]
One of the elements of the offence the accused was found guilty of is
possession. The presiding
magistrate did not advice the accused of
the defect in the charge sheet. It is clear from the
record that the accused
pleaded guilty to a defective charge.
The presiding officer’s failure to ensure that the charge is
put to the accused
with sufficient detail constitutes serious
violation to the accused’s right to a fair trial.
[8]
The court has a duty to assist and give guidance to an unrepresented
accused who lacks sophistication
to understand complex court
proceedings. The judicial officer is obliged to inform the accused of
his rights at all stages of a
criminal trial. The above includes a
duty to explain the significance and purpose of each step during the
trial.
[9]
The authors of the work Hiemstra’s Criminal Procedure at 17-3
state the following when dealing
with section 112(1) (a):
“
Whether the
sentence can be a fine of more than R5 000.00 must not be decided
lightly. There has to be information before
court which
information makes a judicial discretion possible. The presiding
officer must have regard to (i) nature of the
offence; (ii) any
prescribed maximum; and (iii) the particulars in the charge. Where
there is doubt about the seriousness of the
transgression,
questioning ought to take place.
”
I agree with the
submission. In this matter it is apparent that the presiding
magistrate did not embark on this exercise.
[10] The
right to a fair trial is entrenched in the Constitution and failure
of a judicial officer to inform the accused
of any of his legal
rights may lead to an injustice. Such rights are rooted in the
principle that the accused must have a
fair trial.
See: S v Zuma
[1995] ZACC 1
;
1995
(2) SA 642
(CC).
[11] I am of
the view that the magistrate committed several irregularities that
warrant the setting aside of both conviction
and sentence.
[12]
I therefore make the following order:
1.
The accused’s conviction and sentence are set aside.
N.M.
MBHELE, J
I
concur.
PE MOLITSOANE, J