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[2018] ZAKZPHC 41
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Msiya v S (AR654/2017) [2018] ZAKZPHC 41 (31 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: AR654/2017
In
the matter between:
KHULEKANI
MSIYA
Appellant
and
THE
STATE
Respondent
JUDGMENT
Date of Hearing: 03
August 2018
Judgment handed down on:
31 August 2018
THE
COURT:
[1]
Khulekani
Msiya appeared in the Regional Court, Ixopo, before Mr Odendaal.
He pleaded guilty to using the property of an owner
without his
consent and was convicted. His previous convictions were proved
and he admitted them. During evidence in
mitigation he raised a
defence and his plea was altered to one of not guilty in terms of
s113 of the Criminal Procedure Act 51,
1977 (“the Act”)
and the matter was directed to proceed before another presiding
officer.
[2]
Having
perused the previous convictions Mr Odendaal requested that all the
cases relating to those previous convictions be placed
before him. He
established that the three cases were all dealt with by an acting
magistrate, Mrs Sima. In his view there were blatant
defects in the
said matters which required that they be reviewed by this court.
[3]
He then
sent cases “B727/2016”, “B785/2016” and
“B33/2017”, Ixopo, on special review to this
court and
submitted a detailed covering memorandum indicating why they were
being submitted on special review and suggesting why
the related
convictions and sentences,
inter
alia
,
ought to be set aside.
[4]
In case
B727/2016 the accused was charged with housebreaking with intent to
steal and theft. He pleaded guilty and the matter
proceeded in
terms of s112(1)(a) of the Act. No previous convictions were
proved. He was convicted as charged and fined
R500-00 or, in
lieu of payment thereof, committed to 35 days imprisonment. The
charge he faced was one of housebreaking with
intent to steal and
theft and it was recorded on the J15 on 28 November 2016 that he was
guilty in terms of s112(1)(a) of Act 51
of 1977 and the words
“possession of stolen property” were endorsed thereon by
Mrs Sima.
[5]
The
judgment on the J15 however was endorsed with the words “guilty
as charged”. The sentence is recorded as “see
annexure “B” “ which records a sentence of R500-00
or 35 days imprisonment of which R500-00 or 35 days is suspended
for
five (5) years on condition that the accused is not convicted of
receiving stolen property or any crime involving dishonesty
during
the period of suspension.
[6]
It appears
from the record that a printed form was used. It is
recorded that the accused had no objection to the matter
being
finalised in terms of s112(1)(a) of the Act. Submissions made
in mitigation are recorded on the said form as well as
an indication
that he was warned of his right to appeal.
[7]
In case
B785/2016 it is indicated once again on the J15 that he pleaded
guilty in terms of s112(1)(a) of the Act to a charge of
housebreaking
with intent to steal and theft of goods totalling approximately
R2,000-00. He was found guilty and sentenced
to a fine of
R1,000-00 or 35 days imprisonment of which R1,000-00 or 35 days
imprisonment were suspended for five (5) years on
condition that he
was not convicted of housebreaking with intent to steal and theft
during the period of suspension.
[8]
Once again
a printed form was used for these proceedings.
[9]
In case
B33/2017 the same procedure was followed. The charge was once
again housebreaking with intent to steal and theft and
the accused
was sentenced to a fine of R300-00 or 30 days imprisonment.
[10]
In none of
these cases were previous convictions proved or dealt with.
[11]
The three
special reviews were dealt with by Mngadi AJ (as he then was) on 1
September 2017 who, notwithstanding Mr Odendaal’s
memoranda,
and without comment, certified that the proceedings were in
accordance with justice.
[12]
On 6
October 2017 Mr Odendaal referred the three matters back to this
court requesting the Judge President that they be placed before
the
full court. He states:
“
[However], the [three] cases
were handed to the [Honourable Acting Judge Mr Mngadi]. He
never considered the special review
requests at all. He merely
rubber stamped it ‘as in accordance with justice’.
It is unclear what he found
to be correct? (sic). Is it the
original cases ? (sic) or my special review requests to declare the
proceedings null and
void.”
[13]
On 24
October 2017 Mnguni J dealt with the request for a further review of
the said matters and referred the matter and Mr Odendaal’s
comments to the Director of Public Prosecutions, KwaZulu-Natal (“the
DPP”), requesting her to consider the matter and
the comments
and to make submissions thereon.
[14]
On 3
November 2017 Ms Blumrick from the office of the DPP, in the course
of a detailed submission, suggested that the matter be
brought before
a full bench (she obviously meant the full court) for consideration.
The registrar thereafter set down the
matter before the full court
for review.
[15]
Appearing
for the DPP, Mr Radyn submitted that the state’s election not
to present the accused’s previous convictions
prior to the
imposition of sentence is not a ground of review. He submitted
further that the decision to put suspended sentences
into operation
can only be made once the review has been finalised.
[16]
He however
submitted that the proceedings were vitiated due to certain
irregularities,
inter
alia
,
that the accused was not informed at the first appearance of his
right to legal representation and that he therefore could not
have
made an informed decision; that the matters were finalised at the
first appearance, a so-called instant trial, and they were
dealt with
too hastily; and that it was irregular to convict and sentence an
accused in terms of s112(1)(a) of the Act on a charge
of
housebreaking with intent to steal and theft as this was a serious
offence that required questioning in terms of s112(1)(b)
of the Act.
[17]
He went on
to submit that before a court can proceed in terms of s112(1)(a) of
the Act it must be satisfied that the offence in
question did not
merit a sentence in excess of that which is permitted in terms of the
Act and that the presiding officer did not
exercise her judicial
discretion correctly.
[18]
In case
B727/2016, although it was noted that the accused was found guilty as
charged, he was charged with housebreaking with intent
to steal and
theft but in his plea indicated that he pleaded guilty to possession
of stolen property. This result could accordingly
not have been
reached on the facts as they unfolded.
[19]
A further
irregularity concerned the application of
s103(2)
of the
Firearms
Control Act, 2000
. In case B785/2016 the pro forma form used deleted
the reference relating to being unfit to possess a firearm and
accordingly it
is not clear whether this was dealt with.
[20]
It was
submitted that the proceedings in the lower court were not in
accordance with justice, that they had to be set aside and
that the
matters ought to commence
de
novo
before another magistrate.
[21]
Ms Andrews
who appeared on behalf of the accused conceded that the proceedings
were not in accordance with justice but submitted
that if the
proceedings are set aside and had to commence
de
novo
it
would be prejudicial to the accused as he would then potentially face
a lengthier term of imprisonment.
[22]
S112(1)(a)
of the Act allows for an accused to be found guilty on his plea of
guilty without any questioning. This is however
only in the
case of minor offences. The offence must not merit
imprisonment without the option of a fine which may
not exceed
R5,000-00. In
S
v Cooke
1977 (1) SA 653
(A), which dealt with a similar section in the
previous
Criminal Procedure Act, it
was held that it was the duty of
a magistrate to decide whether an offence is of such a trivial nature
that it meets the requirements
of the proviso in the said section.
[23]
S112(1)(a)
of the Act specifically requires that in the opinion of the
magistrate the offence did not merit punishment of imprisonment
or
any other form of detention without the option of a fine or a fine
exceeding the amount determined by the Minister from time
to time.
In each of these cases the charges were housebreaking with intent to
steal and theft. Each one of them was
a serious offence and
from a mere reading of the charge sheet it must have been clear to
the presiding magistrate that on conviction
a term of imprisonment
was indeed a real possibility and that in the event of a fine being
imposed that it would potentially exceed
the amount of R5,000-00.
As held in
S
v Patterson
1977 (1) SA 27
(ECD) at 29G, it is difficult to understand how the
magistrate in these cases, if they were approached correctly, could
have come
to the conclusion that the offences would not warrant a
term of imprisonment, alternatively a fine which would not exceed
R5,000-00.
[24]
Housebreaking
with intent to steal and theft are serious offences which should not
be dealt with in terms of s112(1)(a) of the Act.
See S v
Aniseb
and Another
1991 (2) SACR 413
(Nm) at 416h. Given the seriousness thereof
the presiding officer, if she had exercised her judicial discretion
correctly,
could not have been of the opinion that it could be dealt
with in terms of s112(1)(a) of the Act.
[25]
The charge
of housebreaking with intent to steal and theft consists of elements
of breaking and entering and the taking of property.
Intention also
needs to be established. If the accused was questioned in terms
of s112(1)(b) of the Act he may well not have
admitted all the
elements of the offence and could also have raised a defence which
would have necessitated the application of
s113 of the Act.
[26]
In
S
v Addabba; S v Ngeme; S v Van Wyk
1992 (2) SACR 325
(T) a full court held at that s112(1)(a) must be
used sparingly and only where it is certain that no injustice will
result from
its application. It is for minor offences.
[27]
The learned
regional magistrate, Mr Odendaal, was accordingly correct in sending
the three cases on special review and he must be
commended for his
persistence.
[28]
The
proceedings in the three matters were not in accordance with justice
and should not have been so certified when they came to
this court on
special review.
[29]
In
S
v Katu
(2001) SACR 528
(ECD) and
S
v Maseko
1971 (4) SA 475
(T) it was held that a different judge is able to
withdraw a certificate granted by a judge in terms of s304(1) of the
Act.
[30]
This court
can therefore withdraw the certificates in respect of the three
cases.
[31]
In any
event, we are at large in that regard given the material
irregularities that occurred.
[32]
The
following order is accordingly made:
a.
The
certification by Mngadi AJ that the proceedings in cases B727/16,
B785/16 and B33/17 in the Ixopo Magistrate’s Court in
the
State
v Khulekani Msiya
were in accordance with justice is set aside and withdrawn.
b.
The
convictions and sentences in the said cases are set aside and the
matters are referred back to the Ixopo Magistrate’s
Court to
commence
de
novo
before another magistrate.
_________________
Seegobin
J
_________________
Vahed
J
_________________
Bezuidenhout
J
Date
of Hearing: 03 August 2018
Date
of Judgment: 31 August 2018
APPEARANCES
Counsel
for Appellant: Ms Andrews
Instructed
by: Justice Centre, Pietermaritzburg
Counsel
for Respondent: Mr Radyn
Instructed
by: DPP, KZN, Pietermaritzburg