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[2016] ZAFSHC 90
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S v Tshabalala (102/2015) [2016] ZAFSHC 90 (5 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
Circulate
to Migistrates
Review
No.: 102/2015
In
the review matter between:
THE
STATE
and
NOMVULA
LINAH TSHABALALA
CORAM:
MOCUMIE, J et OPPERMAN, AJ
DELIVERED:
05 MAY 2016
The
Court.
[1]
The accused was convicted of theft by the Magistrate's Court,
Witsieshoek, Phuthaditjaba, Free State on 26 January 2015. The
conviction followed after a plea of guilty in terms of s 112(1)(a) of
the Criminal Procedure Act 51 of 1977 (the CPA). She was
sentenced as
follows:
'Fined
one thousand five hundred rands (R1500.00) or in default of payment
to undergo three (3) months imprisonment. In terms of
the Firearms
Control Act accused is determined fit to possess a firearm (Section
103(2) of
Firearms Control Act 60 of 2000
)'
[2]
On
10
June
2015
[1]
,
when
this
court
received
this
matter
on
review;
it
was
under
covering
letter
dated
14
April
2015
[2]
which
reads:
'I
forward herewith the record and J4 for review.
The
accused was charged with theft and she pleaded guilty and the plea
was accepted by the State in terms of
Section 112(1)(a)
of Act 51 of
1977 and the accused was convicted.
The
Prosecutor who accepted the plea in terms of section 112(1)(a) then
proved previous convictions and asked for direct imprisonment.
I
am forwarding the record of proceedings in order for the reviewing
Judge to see whether the proceedings were in accordance with
justice.
The
delay in submitting is regretted since there is no co-operation with
the support services and it is beyond my control.
Regards'
[3]
On 19 June 2015 the review was sent back to the magistrate with
queries. The request was apparently received by the magistrate
on 29
August 2015. It consisted of the following:
'1.
It took 5 months for this matter to be sent on review contrary to the
clear provision of s 302 of Act 51 of 1977. The magistrate's
explanation is not clear. What is meant by 'no co-operation with the
support services'?
2.
Is section 112(1)(a) the appropriate procedure to have adopted in the
circumstances of this case? The accused was unrepresented;
the
Prosecutor was aware that she has previous convictions of theft and
even asked for direct imprisonment. Refer to recent decided
cases.
1.
Is the sentence appropriate considering that the accused is what can
be safely called a serial thief?
2.
What are the reasons for imposing this type of sentence? Refer to
decided cases.'
[4]
On 20
October
2015
a reply to
the query
dated
9
October
2015
[3]
was
received.
The
reasons
provided
read as
follows:
'The
matter is referred to the Honourable Reviewing Judge
as a special
review in
terms
of
section
304(4)
of
the
Criminal
Procedure
Act
51
>of
1977 because
the Public
Prosecutor
applied for
a
sentence of
direct
imprisonment after
having accepted the plea in
terms of
section 112(1)(a)
of Act 51 of 1977.
With
reference to "no co-operation with support services"- the
trial court meant that it took some time to have the record
transcribed and such delay is regretted and will be avoided in
future. (Accentuation added)
1.
The trial court understands fully the concerns of the
Honourable
Reviewing Judge regarding Section 112(1)(a) bearing in mind that it
does not say anything about the period of imprisonment
except the
fine which must not exceed the amount determined by the Minister from
time to time in the Gazette. The judgments in
the case of State v
Modumela and others
[2015] JOL 33147
(FB) and State v Kholoane
2012(1) SACR 8 (FB) are noted.
2.
After considering the decided cases, it appears that the
trial court
treated the accused person with kid gloves but the accused had shown
remorse which was translated into action by pleading
guilty- S v
Brand 1998(1) SACR 296 (C)-if the accused shows genuine remorse,
punishment will be accommodating, especially when
the accused has
taken steps to translate his or her remorse into action.
3.
Sentence in respect of a plea in terms of section 112(1)(a)
must be a
fine with an alternative term. Accused addressed in mitigation of
sentence, it transpired that she was a primary caregiver
to her two
minor children who were 1 year and 10 months and 10 months old
respectively and the relationship with her in laws
was not
healthy.
It
is further submitted that the Public Prosecutor accepted the plea in
terms of section 112(1)(a) of Act 51 of 1977 which made
the offence a
minor offence taking into account that the stolen items amounted to
R195-87 although she well knew the previous convictions
and
thereafter addressing court and applying for direct imprisonment and
that is was prompted the trial court to refer the matter
for special
review.
In
future the court will adopt the provisions of
section 112(1)(b)
of
the
Criminal Procedure Act 51 of 1977
to avoid a recurrence of this
nature.
Thank
you My Lady.' (Accentuation added)
[5]
A particularly thorough reading of the case raises numerous
issues of concern which are at first blush
not evident.
These are:
a)
The administration of the referral of review
cases
by the Magistrate Court to the High
Court,
b)
the delay in the reply to the queries by the High Court,
c)
the standard of the reply to the said queries and
d)
the erroneous application of the law.
The
administration
of the
referral of
review cases
by the
Magistrate
Court to the
High
Court
[6]
After some cursive research we came to the conclusion that there are
no guidelines in the Magistrate's Courts across the country
on the
administration of the referral of review cases to the High Court and
importantly on who must send a special review to the
High Court under
s304
read with
s303
of the CPA.
[7]
But, the
practice
is and
has always
been, the
Chief
Magistrate
or the
Senior
Magistrate
assigned
to
do
so,
the
Quality
Assurance
Officer
alternatively
a
Magistrate
who
is
based
at
a
station
where
(s)he
serves
as
Head
of
Office.
When
a
magistrate discovers
that
(s)he
has made a
mistake that can only
be
corrected
by the
High Court
in line
with
the
long
standing
principle
of
functus
officio,
(s)he
must
bring
such
mistake
or
oversight
to
the
attention of
the
Chief
Magistrate
or
the
designated
Senior
Magistrate.
One
of
the
two
will send
the review under his
or her
covering
l
etter.
The covering
l
etter
will identify
the problem
and propose
a
remedy
or
seek
direction/guidance
on how
the
matter
should be
dealt
with;
but
definitely
not
the
magistrate
that made
the
mistake
in the
first
place.
Of
late this
practice
is
not
adhered
to
by
magistrates
in the
Free State,
both cluster A
and
B.
[4]
[8]
The rationale behind this practice is and has always been to avoid a
situation where the magistrate that has committed the mistake
by
oversight or lack of appreciation of the wrongfulness of his or her
judgment, conceals such conduct to the prejudice of the
accused. This
case is a stark reminder of the importance and relevance of the
system of review in the country.
[9]
The
history
of
the
system of
review
and
i
ts
critical
importance
is
captured
succinctly
in
S
v Mafikokoane;
S v
Mokhuane
[5]
where
the
court
stated:
'One
of the important contributions made by South African law to the
administration of justice is the system of review as of course,
or,
as it is more commonly known, of automatic review. The system
requires that every conviction and sentence of an inferior court
falling within certain categories be confirmed by a Judge of the
Supreme Court, and each case is reviewed without any application
by
the accused person.'
The
delay in the reply to the queries and the standard of the reply
to the High Court
[10]
We are not going to burden this judgment with details on the delays
in the response to the queries and the standard of the
reasons
supplied. The documents and the facts are self-evidentiary. Suffice
to state that this is not how to respond to queries
from the High
Court. In this instance, sending a matter first under
s303
and then
s304
of the CPA. The inordinate delay of more than five months all
amounted to unnecessary and seriously prejudicial delay to the
accused
person.
[11]
We
cannot
emphasise
enough.
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.
The
clerk
of the
court
is
also
duty
bound not
to fail to
comply with
the
requirements
of
s 303
of
the
CPA.
[6]
'The
clerk of the court in question
shall within one week after the
determination
of
a case referred to in paragraph
(a) of
section 302(1)
forward to the registrar of the provincial or
local division having jurisdiction the record of the proceedings in
the case or a
copy thereof certified by such clerk, together with
such remarks as the presiding judicial officer may wish to append
thereto,
and with any written statement or argument which the person
convicted may within three days after imposition of the sentence
furnish
to the clerk of the court, and such registrar shall, as soon
as possible, lay the same in chambers before a judge of that division
for his consideration." (Accentuation added)
[12]
Reviews
are
urgent
in
nature.
Although
the
CPA
does
not
explicitly
attach any
consequence
to
non-compliance
to
the 'one
week',
any
delay has
the
potential
to
cause
prejudice
and
an
irreversible
collapse
of
justice.
In
S v
Lewies
[7]
the
court
stated
that
the
whole
purpose
of
s303
is
to
ensure
a
fair trial
for
the
accused
person.
One
of the
essential
elements
is the
expedition
of matters
and the
finalisation thereof.
Section 303
is peremptory.
[8]
[13]
In
S
v
Nyumbeka
[9]
the
Full Bench
of the Western
Cape
took pains
to reiterate
the
role
of
a
magistrate
when
imposing
a
reviewable
sentence.
At
para
[21] the
court
stated:
'[21]
When imposing a reviewable sentence, magistrates should check:
(i)
That it had been entered into the review register;
(ii)
that the full record had been properly typed, where it had been
handwritten, and transcribed,
where there was a mechanical recording
of the proceedings;
(iii)
that all the evidence presented at the trial is included and, where
it is not available, try and reconstruct
such evidence from the
handwritten notes, with the assistance of all the parties concerned;
(iv)
that all documents and annexures are attached to the record;
(v)
that no incomplete or incorrect record is sent on review, because
this would lead to delays, as
has happened in this matter. Should
this happen, the magistrate would be clearly negligent in executing
his/her duties and functions
imposed by the law, especially
s303
of
the
Criminal Procedure Act 51 of 1977
."
At
para [22] it explained further:
'[22]
Whilst the preparation of a record for a review and an appeal is
primarily a function of the clerk of the court, it is ultimately
the
function of the magistrate to see to it that a proper record is sent
to the high court. The clerk of the court, unlike the
one in this
case, should see to it that this is done timeously and within the
periods prescribed by law, and should follow up after
having checked
the register, as to why reviews are delayed. Here they have also
clearly failed in their duty, in terms of s 165(4)
of the
Constitution, to give effect to an order of court.'
[14]
In this case, the accused person was sentenced on 26 January 2015.
There is no indication that she was informed of the provisions
of
s303 of the CPA. The record was signed by the magistrate presiding on
the same day. The record only reached this court five
months outside
the prescribed period of seven day; a week. A query was sent on the
same day requesting reasons for such delay.
This query was only
responded to four months later. This means the matter could only be
addressed by this court after eight months
had lapsed. By that time
the accused person had already served the three months imprisonment
i.e Even before this court could confirm
that the proceedings were in
accordance with justice. Fortunately, considering her long list of
previous convictions, the accused
suffered no prejudice. If anything
she benefitted from this miscarriage of justice.
The
erroneous application of the law
[15]
Apart from the above, the crux of this review is the application of s
112(1) (a) of the CPA and the remedy the presiding officer
has at his
or her disposal when (s) he realises the incorrectness of a
conviction. The solution, as will be apparent later, is
not, as it
happened in this case, to impose an inappropriate sentence.
[16]
As
is evident
from
the
record, the
accused
person
pleaded
guilty
on theft.
The
record
goes to
show
the
following
interaction
between
the
prosecutor
and the
magistrate
as well
as the
accused
person.
[10]
State
prosecutor
puts the
charge to
the
accused
person.
She
pleads
guilty
to
the
charge.
The
magistrate
then
states:
'Ms
Maponya'. apparently
asking
the
prosecutor whether
she
was
accepting
the plea as
tendered
and
the prosecutor responded: 'the State
accepts
the
plea
in terms
of
s112
(1)
(a)
your
Worship'.
The
magistrate
then
summarily
informed
the
accused
person
that
'The
State
accepted
the
plea
in terms
of
s112
(1)(a)
of
the
Criminal
Procedure
Act
51/1977
and
the
accused
is found
guilty
of
theft...'
[17]
The prosecutor at this stage presented a long list of
previous convictions which the accused person
admitted.
An altercation then ensued between the magistrate and the prosecutor
when the magistrate realised the predicament in
law; i.e that she
could not have applied
section 112(1)(a)
in the light of the facts
that have since come to light. She appears at this stage to have
realised that a harsher sentence than
is permitted in
section
112(1)(a)
must be imposed.
[18]
S
v
Modumela
and Others
[11]
underscores
the
role
of
the
prosecutor in
the
determination
of which
subsection
should
be applied
in similar
circumstances.
In
the
judgment
the court
stated:
'[W]hilst
on this point, it is apt to make reference to
S v Onesmus; S v
Amukoto;
S v
Mweshipange
2011
(2) NR 461
(HG) at paragraph
[17]
Liebenberg
J
dealt with a remarkably similar
conduct of a Prosecutor in the following terms:
'What
I find most surprising and conflicting is that although the
prosecutor held the view that these cases could be finalised in
terms
of
section 112(1)(a)
- thereby implying that they was minor offences
- he, when addressing the Court on sentence, submitted that the
offences were of
serious nature. What boggles the mind is, how can
the same offence at the stage of pleading be considered to fall in
the category
of crimes classified as 'minor offences', but when it
comes to sentence, the same offence (on the very same facts), is
elevated
to a 'serious crime'? Prosecutors are reminded that they are
officers of the Court; and as such under a duty to serve the
interests
of justice. Had the prosecutor representing the State in
these cases been serious, then he would not have intimated to the
Court
to invoke the provisions of
section 112(1)(a)
; but instead,
would have insisted that
section 112(1)(b)
be applied, where the
Court was obliged to do so in terms of the Act . . .'
[19]
The message from these cases is simple: First; s 112(1)(a)
cannot be invoked where the offence is not
of a trivial
nature. Taking into account the far reaching consequences of theft
out of supermarkets or cash and carry stores as
in this case;
including loss of employment for the employees of those stores, it
can never be regarded as trivial. Second; imprisonment
may not follow
a conviction after the application of s 112(1)(a).
[20]
Perhaps
it is
more
apposite
at
this
juncture
to
quote
the
most
recent
judgment
of
this
court,
S
v
Mohata
[12]
where
this
court
echoes
what
is
set
out above
categorically:
'[9]
... section 112(1)(a) should be used only for minor offences. It is
almost in the nature of an acknowledgement of guilt fine.
The accused
should, it can almost be said, stand with the money, ready to pay the
fine or qualify for a deferred fine. Magistrates
should rather, in
appropriate cases, consider using section 112(1)(b) and ask a few
simple questions to make sure of the guilt
of the accused. Then
sentencing becomes much simpler.'
[21]
Coming back to the facts of this case, at the time the prosecutor
informed the magistrate that she accepted the plea as tendered,
the
magistrate could not have known better but to rely on the prosecutor.
However, once she became aware of the accused person's
long lists of
previous convictions, the seriousness of the offence and that the
accused deserves a harsher sentence than permissible
under section
112(1)(a) she should not have proceeded as if she had no remedy to
cure the defective process that she embarked upon
as the proceedings
were clearly not in accordance with justice. The solution lied and
still lies in s304A of the CPA.
[22]
Section 304A of the CPA states:
'1(a)
If a magistrate or regional magistrate after conviction but before
sentence is of the opinion that the proceedings in respect
of which
he brought in a conviction are not in accordance with justice, or
that doubt exists whether the proceedings are in accordance
with
justice, he shall, without sentencing the accused, record the reasons
for his opinion and transmit them, together with the
record of the
proceedings, to the registrar of the provincial division having
jurisdiction, and such registrar shall, as soon as
practicable, lay
the same for review in chambers before a judge, who shall have the
same powers in respect of such proceedings
as if the record thereof
had been laid before him in terms of section 303.'
(b)
When a magistrate or a regional magistrate acts in terms of paragraph
(a), he shall inform the accused accordingly and postpone
the case to
some future date pending the outcome of the review proceedings and,
if the accused is in custody, the magistrate or
regional magistrate
may make such order with regard to the detention or release of the
accused as he may deem fit.'
[23]
In conclusion, the conviction is not in accordance to justice and the
sentence that followed, is also legally inappropriate.
A sentence
cannot follow on an illegal conviction and the sentence in itself
does not serve the interest of justice.
[24]
It would be remiss of us if we do not touch on the type of sentence
the trial court imposed. The accused has previous convictions
of
theft which cover one and half pages. The SAP 69 from the Criminal
Record Bureau handed in reflects that she has been convicted
of theft
repetitively since 11 June 2008 until 13 January 2014. Between the
two dates the sentences imposed ranged between fines
coupled with
terms of imprisonment between 30 and 60 days imprisonment with the
last, on 13 January 2014, being a caution and discharge;
which
qualified her as a serial thief. Yet, on 12 January 2015, on her
seventh conviction of theft, the magistrate deemed it appropriate;
without advancing any reasons; to impose a fine of R1500 or 3 months
imprisonment.
[25]
We
will not
go into
the
importance
of
giving
reasons even at
sentencing
stage
in
all
cases,
suffice
to
reiterate
that
much
effort
and
time
should
be
invested
at
sentencing
stage just
as during
the determination
of the
merits of
the case in
order to
reach a
just
sentence;
which
is
balanced and also satisfies the
needs
of society. No right
thinking
and
law
abiding society would
accept
the
shockingly
lenient
sentence
imposed
on
an
accused
person with
a
long list
of previous convictions;
exactly the
same
of
which
she
was
convicted
on the
day
in issue.
This
is
the typical
sentence
that will
easily
encourage
society,
in
particular
members
of the
business
community,
to take the
law into
their
own
hands. The
sentence
is unfair,
imbalanced
and
clearly not
thought
through
at
all.
The
basic
triad
of
Zinn
[13]
was
totally
disregarded
and
not
even considered.
[26]
To add insult to injury the magistrate declared the accused fit to
possess a firearm without holding a proper inquiry. She
in effect
placed a firearm in the hands of an individual that has no respect
for the law.
[27]
Finally,
ex
facie
the charge sheet,
specifically, the J15 it is clear that the magistrate in this matter
was recently appointed .To the extent that
this may be an indication
of lack of training or indepth training on the issue under our focus
in this matter. The Chief Magistrates
of both clusters and their
provincial training committees are implored to pay attention to the
application of s112(1)(a) as opposed
to s112(1)(b) as set out in the
cases of this Division referred to above in order to avoid a
recurrence of this nature. This
is evidently not an isolated incident
judging by the number of Full Bench decisions of this Division on
this very aspect between
2000 and 2015. The matter should also be
brought to the attention of the South African Judicial Education
Institute (SAJEI) for
the benefit of newly appointed magistrates in
other parts of the republic.
[28]
The Chief Magistrates of both clusters are also encouraged to explore
guidelines along the lines set out above and to review
the current
system as opposed to the one which runs in line with the notion of
institutional independence of a judicial officer
i.e That upon
discovering a mistake or an error in one's own judgment and order, a
presiding officer may, on his or her own, submit
such judgment to the
High court on special review in terms of s304 to avoid any
unnecessary delay. This
is so because s304 does
not make specific provision that matters sent on special review
to the High court should be
sent by the Chief Magistrate or Senior
Magistrate only. Consequently there is, in principle, nothing that
bars the presiding judicial
officer seized with the matter to refer
the matter on special review. However, pending these proposed
guidelines and review of
the current system in respect of special
reviews; magistrates must not send special review matters under their
own names
but through the designated Senior Magistrates or
Chief Magistrates.
[29]
Having said that, it would be academic and of no relevance at this
late stage to refer the matter back to the trial court for
a trial
de
nova.
Such remedy would cause more prejudice to the
accused person who is already released from custody; having served
three months. That
is the travesty of this matter.
ORDER
'1.
The conviction and sentence are set aside.
2.
The order in terms of
section 103(1)
of the
Firearms Control Act 60
of 2000
is set aside.
3.
A copy of this judgment must be forwarded to the Chief Magistrates
Bloemfontein and Welkom and the Director of Public Prosecutions:
Free
State, Bloemfontein with specific reference to paragraphs [15] to
[23] of this judgment.'
_________________
B.
C. MOCUMIE, J
I
concur.
_________________
L.
OPPERMAN, AJ
[1]
Five
months
after
finalisation
of
the
case
and
two
months
after
the
date
of
the
covering
letter.
[2]
Three
months
after
the
finalisation
of
the
case.
[3]
Four months after the request for reasons.
[4]
Cluster A covers
Bloemfontein
and
neighbouring
towns.
Cluster
B covers
Welkom
and
neighbouring
towns.
[5]
S
v
Mafikokoane; S v Mokhuane
1991 (1) SACR 597
(0).
[6]
See S v Letsin
1963 (1) SA 60
(0) at 61A-H.
[7]
S v Lewies
1998 (1) SACR 101
(CPA) at 104.
[8]
See also
S
v
Mofokeng
1974 (1)
SA 271
(0), Sv
Mafikokoane;
S
v
Mokhuane
1991 (1)
SACR
597
(0), S v
Letsin
1963 (1)
SA
60
(0), S
v
Raphatle
1995 (2)
SACR 452
(T).
[9]
S v Nyumbeka 2012 (2) SACR 367 (WCC).
[10]
Page 329 of the transcribed record.
[11]
S v
Modumela
and Others
[2015] JOL
33147
(FB).
[12]
S v
Mohata
[2015]
JOL
33312
(FB)
paragraph
[9].
[13]
S v Zinn
1969 (2) SA 537
(A).
See also S
v Malgas 2000(1) SACR (SCA).