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[2016] ZANCHC 61
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S v Botha (29/2015, 7/2015) [2016] ZANCHC 61 (29 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
Review
Case No: 29/2015
Kathu Case No:
7/2015
Datum
gelewer/Date delivered:
29/01/2016
In
the review of:
THE
STATE
and
RONNIE
BOTHA
Accused
Coram:
Mamosebo, J
et
Erasmus,
AJ
JUDGMENT
ON REVIEW
ERASMUS,
AJ
[1]
This matter was sent for review in terms of section 304 of the
Criminal Procedure Act, No. 51 of 1977 (the “CPA”).
The accused pleaded guilty to and was convicted of contravening
section 65(2)(a)
of the
National Road Traffic Act, No. 93 of 1996
by
the Acting Magistrate Mr. Mamadi. He was sentenced to a fine of
R1,000.00 or 12 (TWELVE) months imprisonment which was
wholly
suspended for 3 (THREE) years on condition that the accused is not
convicted of the offence of driving a vehicle while the
alcohol
content in his blood exceeded the prescribed limit. He was not
declared unfit to possess a firearm and his driver’s
licence
was not suspended.
[2]
Mamosebo, J directed the Registrar to remit the case record to the
Magistrate Kathu requesting his response on as to whether
2.1
the accused’s rights to a fair trial in terms of section 35(3)
of the Constitution of the Republic of
South Africa (the
‘Constitution’) were properly explained;
2.2
the Court questioned the accused in terms of section 112(1)(b) of the
CPA;
2.3
the Court was satisfied that the accused had admitted all the
elements of the offence on the main and/or alternative
counts;
2.4
there was any evidence that the engine of the accused’s motor
vehicle was running;
2.5
there is any evidence that the accused’s blood was drawn within
the prescribed two hours;
2.6
the Court was impartial and open-minded in the adjudication of this
matter in the light of the manner in which
the proceedings were
conducted.
[3]
From the response of the Acting Senior Magistrate Kathu it appears
that the Magistrate who conducted the proceedings in the
Court
a
quo
is no longer in the employ of the Department of Justice and is not
available to respond to the queries of Mamosebo, J. The
Acting
Senior Magistrate responded to the queries though and from her
response it appears that she does not support the conviction
of the
accused.
[4]
Mamosebo, J requested the Director of Public Prosecutions to provide
a legal opinion in respect of the issues raised.
A detailed
opinion was provided by Adv. Van Heerden. She submitted that
the conviction and sentence should be set aside and
the matter
referred back to the Magistrates Court to commence
de
novo
before a different Magistrate. Adv. Birch, the Deputy Director
of Public Prosecutions agreed with the opinion and conclusions
of Van
Heerden. Adv. van Heerden is thanked for her
efforts.
THE
ACCUSED’S RIGHT TO LEGAL REPRESENTATION AS ENTRENCHED IN
SECTION 35(3)(f) OF THE CONSTITUTION
[5]
An accused’s right to legal representation is entrenched in the
relevant section of the Constitution and entails that
every person
has the right to a fair trial which includes the right to be
represented by a legal practitioner of his choice. It
includes
the right to be informed of such rights promptly and to provide a
reasonable opportunity to secure the presence of a legal
representative.
[6]
From the record it appears that the accused wanted legal
representation from the onset of proceedings. He applied for Legal
Aid, but apparently he did not qualify for such services. It
appears that the Magistrate did not afford the accused further
reasonable opportunity to obtain legal representation and that he in
fact discouraged the exercise of such right. It does
appear
though as if the accused was eager to finalise the matter because
when the Magistrate indicated that the matter should be
postponed for
trial, the accused indicated that he wanted to plead guilty.
The Magistrate responded that he could plead guilty
and that they
could then finalise the matter. The accused responded to this by
saying that this was what he wanted to do as he
wanted to finalise
the matter.
PROCEEDINGS
IN TERMS OF SECTION 112(1)(b) OF THE CPA
[7]
The accused pleaded not guilty to the main charge of contravening
section 65(1)(a)
of the
National Road Traffic Act, but
pleaded guilty
to the alternative charge of contravening
section 65(2)(a)
of the
same Act and the prosecutor indicated that he accepted such plea. The
accused provided the background to the events which
had led to his
arrest. From his explanation it appeared that he was sleeping
in the car and that someone who had passed by
had phoned the police
and informed them that there was somebody in the car. The
police were then sent to the scene. The only
questioning by the Court
pertaining to the elements of the offence and the answers thereto
were the following:
“
COURT:
Maar ons wil weet is dit wat is dit wat u jy gedrink het, dat jy as
jou alkohol was so hoog in jou bloed.
ACCUSED
:
Dit was sterk drank wat ek gedrink het.
COURT
:
Maar nou aanvaar jy dat dit was onwettig om die kar te ry wanneer jou
alkohol was so hoog?
ACCUSED
:
Ja nee, ek aanvaar dit.
”
[8]
As correctly pointed out by Adv. van Heerden, section 112(1)(b) of
the CPA is designed to protect an uneducated and undefended
accused
from the adverse consequences of an ill-considered plea of guilty.
The Magistrate therefore had the responsibility
to ensure that the
accused wanted to plead guilty, that he believed that he was guilty
and that he had no possible defence to the
charge.
[9]
It is trite that the object of questioning in terms of section
112(1)(b) of the CPA is to ascertain whether the accused admits
all
the elements of the offence with which he is charged and further to
satisfy the Court that the accused is indeed guilty of
the offence
charged.
[10]
In
NDLELA;
JANTJIE; JONAS; MacGREGOR; SOOBRAMONEY; MAZEKA; NAIDOO
[1]
Law
J stated the legal position in this regard as follows:
“
The
second requirement of s 112(1)(b) namely that the court must be
satisfied regarding the guilt of the accused carries with it
the
implication that the court must be satisfied that admissions made the
accused are admissions that he is able to make correctly.
”
[11]
In this matter the accused did not admit that the amount of alcohol
in his blood was higher than the prescribed minimum limit.
He
also did not indicate whether he had perused or had had sight of the
blood analysis certificate, whether a blood sample
had been properly
obtained from him and whether he understood the blood analysis
certificate to reflect the concentration of alcohol
content in his
blood. There is no indication in the version of the accused at
what time he had consumed the alcohol, at what
time he had driven the
vehicle nor at what time the blood sample had been obtained.
[12]
It further appears from the record that the prosecutor was not even
satisfied that all the elements of the offence had been
admitted by
the accused. The Prosecutor indicated that the State had a problem
with the timeframe within which the blood of the
accused had been
drawn. Despite this, the Magistrate proceeded with the matter
by putting to the accused the following:
“
COURT
:
Ja, kan jy dit so sê jy, betwis nie die polisie het die blood
(sic)
van
jou getrek binne 2 ure wanneer hulle jou gekry het en jy betwis nie
dat die proses wat hulle gevolg het om die bloed van jou
te vat was
verkeerd.
”
[13]
It is thus clear that the accused did not admit all the elements of
the offence charged with and that certain admissions
were elicited by
the Magistrate. The conduct of the presiding Magistrate in
these proceedings clearly constituted an irregularity.
Nolan AJ said
in
STATE
v WILLIAMS
[2]
:
“
I
agree with the regional magistrate that the conduct of the district
magistrate constituted a striking irregularity. The magistrate
abandoned her judicial function, took over the role of the
prosecution, and proposed certain allegations from the bench that
were
not ‘allegations in the charge’. She then elicited
admissions from an unrepresented accused that he was not able to
make, and which he might not have made had he been properly
represented.
”
[14]
Section 312 of the CPA provides that where a conviction and sentence
under section 112 is set aside under review or appeal
on the ground
that any provision of section 112(1)(b) or 112(2) was not complied
with or on the ground that the provisions of section
113 should have
been applied, the Court shall remit the case to the court by which
the sentence was imposed and direct that the
Court comply with the
provisions in question or to act in terms of section 113 of the CPA.
Since the Magistrate who conducted the
proceedings is not available
anymore, the matter will necessarily have to commence before a
different Magistrate.
[15] In the light of
the above, the following order is made:
1.
THE
CONVICTION AND SENTENCE ARE SET ASIDE.
2.
THE
CASE IS REMITTED TO THE MAGISTRATE KATHU TO COMMENCE DE NOVO BEFORE A
DIFFERENT MAGISTRATE.
__________________
SL
ERASMUS
ACTING
JUDGE
I
agree.
__________________
MAMOSEBO,
J
JUDGE
[1]
1984 (4) SA 131
(N) at 137 ;
[1]
See also
S v NAIDOO
1985 (2) SA 32
(N) at 36
[2]
2008 (1) SACR 65
(C) at
68. Par. 12