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[2016] ZAECMHC 56
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S v Njiva and Another (216957) [2016] ZAECMHC 56; 2017 (1) SACR 395 (ECM) (7 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. 216957
In
the matter between:
THE
STATE
and
ANDILE
SINETHEMBA NJIVA &
SANDILE
ZAKHELE TSHEZI
JUDGMENT
NHLANGULELA
DJP
[1]
This is a review of the conviction and sentence of the two accused by
the Bizana Magistrate’s Court. The two accused were
found
guilty by the learned magistrate on charges of stock theft, and
accused 1 was sentenced to 3 years imprisonment and accused
2 was
sentenced to 18 months imprisonment. The test on review is to
determine whether the proceedings appear to be in accordance
with
justice. A material irregularity would vitiate the proceedings
and render same not in accordance with justice.
[2]
The relevant facts may be summarised as follows.
[3]
During the early hours of the morning on 17 July 2015 W/O
Jungqwana
of the Stock Theft Unit of the Bizana Police Station and his
colleague were patrolling the road between Nomlacu and Harding.
They stopped a suspicious looking sedan motor vehicle driven by one
Lazola
Ndamase
with the two accused as front seat passengers. The back seat had been
removed and they found eleven live goats in the back and
in the
luggage compartment.
[4]
Upon questioning the driver and the accused they ascertained that
Ndamase
and the two accused were not in possession of the necessary permits
to transport or possess the stock. The two accused confirmed
that the
goats belonged to them and that they had hired
Ndamase
to transport the goats to Harding. Accused 1 and 2 were unable
to furnish any documentary proof that they were lawfully in
possession of the stock.
[5]
The evidence of W/O
Jungqwana
proceeded as follows, and I
quote
verbatim
from the record:
“
Accused
No.1 and 2 further informed me that five of these 11 goats, they have
stolen them from a location which is –a locality
which is close
to that vicinity by the name of Umbukeni.”
[6]
W/O
Jungqwana
then proceeded to testify that after first taking the goats to the
Bizana Police Station, the two accused then took him to the
homestead
in Umbukeni locality where they had stolen the goats. He found
a lady at such homestead by the name of
Beatrice
Loggenberg
who is the complainant in the case, and who confirmed that five goats
had been stolen from her kraal during the night of 16/17
July 2015.
She subsequently identified five of the 11 goats found in
Ndamase
’s
vehicle as being her goats stolen that night. The five goats
were returned to her with the consent of the accused.
[7]
Upon being asked by the prosecutor, W/O
Jungqwana
testified
that the complainant had produced the stock card relating to the five
goats. He was then asked whether the accused
explained how they
got hold of the goats at the complainant’s homestead.
Before answering, the Court intervened and
I quote
verbatim
from the record:
“
COURT:
Who showed – who showed?
Warrant
Officer
Jungwana
replied as follows:
They
were taken – they told me that they taken out at (sic) –
the goats from the kraal and they even showed me the –where
they torn up (sic) the fence so as to gain exit.”
[8]
W/O
Jungqwana
proceeded to testify that he personally inspected the area where the
fence had been cut and it appeared to be freshly cut (presumably
due
to the absence of rust marks).
[9]
The prosecutor then established from W/O
Jungwana
that the “
admissions”
were freely and voluntarily made without any undue influence.
All this evidence was freely admitted. Neither of the
accused
was legally represented at this stage of the proceedings.
[10]
When the accused testified, they denied that they had stolen the
goats. Both were strenuously cross-examined by the prosecutor
and they were reminded of the “
admissions”
they
made to W/O
Jungqwana
.
They denied that they made such admissions. This
cross-examination was allowed by the Court.
[11]
When accused 2 was cross-examined by the prosecutor the following
questions were asked:
“
PROSECUTOR:
Was it your first time to be in this business of theft of goats? …
I’ve never stolen … At all? …
… At all.
Have you never been arrested or convicted of theft of goats …
… Yes, I was once convicted
of goats which had no stock card
in my homestead.
Okay,
have no further questions.”
[12]
Following the cross-examination by the prosecutor, the Court put the
following follow-up questions to accused 2:
“
COURT:
Is it your evidence that you were once convicted of theft of goats …
That is correct, Your Honour.
What
was the sentence? … Your Worship, I was convicted and then I
was sentenced to five months imprisonment.”
[13]
These question were followed up by a number of other questions by the
Court designed to show that having been convicted and
sentenced
previously of stock-theft, the accused must have realised that it was
a crime to be in possession of stock without the
necessary permit.
Further, when the wife of accused 2 testified in defence of her
husband, the Court put the following questions
to her:
“
COURT:
Your husband was once convicted of a stock theft related incident, do
you know anything about that? …
Yes, Your Honour. What
was he convicted of? … Two goats – were found, Your
Honour, in his possession.
There was no stock card for those
goats.
Your
husband made admissions to the police on his arrest. (Long
pause). Would you like to make any comment on that?
… No
comment Your Honour.”
[14]
In the last (3
rd
) paragraph on the first page of his
judgment, the leaned magistrate summarises the facts. He
states:
“
And
it is also an undisputed fact that accused no. 1 admitted that he had
stolen the goats from the complainant’s premises
…”
[15]
Of course, it is incorrect to say that it is “…
an
undisputed fact …”
Both
accused, when giving evidence denied that they made the “admissions”
testified to by W/O
Jungqwana
.
But this is immaterial. What is material is that this is the
only direct evidence linking the accused to the theft
of stock.
It is clear from a contextual reading of the judgment that this
evidence of W/O
Jungqwana
played a major role, if not the decisive role, in the conviction of
both accused of stock theft.
[16]
It is equally clear from the judgment that the previous conviction of
accused no. 2 of stock theft played an important, if
not a decisive
role in his conviction. When dealing with accused no.2, the
learned magistrate observed:
“
He
(accused no.2) never became suspicious of accused no.1’s
actions, despite the fact that he has a previous conviction of
theft
of stock under the same circumstances.”
[17]
In addition, the magistrate also referred to the “
admission”
made by accused no.2 that he had stolen the goats. There is no
doubt in my mind that the learned magistrate took both the
“
admissions”
into
account when convicting the two accused, and in addition also took
the previous conviction of accused no.2 into account in
convicting
him.
[18]
This matter first came before
Griffiths
J sitting as a Court
of Review. He addressed a query to the learned magistrate in
the following terms:
“
It
seems from the record (page 18 line 21−page 19 line 10) that a
confession made by the accused to a warrant officer was
accepted in
evidence. Indeed, this confession was used in cross-examination
of the two accused and was relied on by the magistrate
in his
judgment in convicting both accused. Was this confession
admissible bearing in mind the provisions of section 217
of the
Criminal Procedure Act?
Secondly,
from what appears at page 58 of the record it seems that the
magistrate himself questioned accused two about a previous
conviction
relating to stock theft. Such previous convictions ought not to
be disclosed to the court prior to conviction.
How and why did
this occur?
Because
of these irregularities, unless they can be explained, should the
convictions of both accused not be set aside?”
[19]
The learned magistrate responded with a lengthy answer, essentially
disputing that the admissions amount to a confession and
disputing
that he committed any irregularity in the proceedings. It is
unnecessary to repeat the grounds advanced by the
learned magistrate
for his expressed views. What is disconcerting, however, is the
intemperate and aggressive language used
by the learned magistrate in
his response to the queries raised by the Reviewing Judge. I
refer to only a few examples:
“
Nothing
in this record of these proceedings can confuse anyone to record the
evidence of an admission as a confession ….
With respect, his
opinion is not understandable.”
“
It
is shocking to learn that the Honourable Reviewing Judge is quick to
express an opinion that the magistrate committed an irregularity
whereas the magistrate properly followed laid-down legal procedures
which were correctly interpreted by our courts.”
“
Had
these selected ‘irregularities’ appearing in his query
been fairly considered with the totality of the evidence,
including
the correct application of the legal principles thereto, even from
the cursory reading of the record of these proceedings,
it would have
been easily discovered without questioning, that the proceedings are
regular … … The alleged irregularities
pointed out by
the judge do not exist.”
[20]
I will later return to the language used by the learned magistrate,
but first it is necessary to determine whether the evidence
of the
“
admissions”
amount to admissible confessions or admissions; and secondly, whether
it was proper to place evidence of a previous conviction
before Court
before conviction and not for purpose of sentence.
[21]
The first issue is whether the evidence constitutes a confession or
an admission. There is no statutory definition of
a confession,
but for more than 87 years the definition proposed by
De Villiers
ACJ in
R v Becker
1929 AD at 171 has been regarded as being of
unquestionable authority and a “
self-contained statutory
definition.”
The
Chief Justice said:
“
A
confession could only mean an unequivocal acknowledgement of guilt,
the equivalent of a plea of guilty before a court of law.”
[22]
It is now recognised that for an admission to be regarded as a
confession, it must be an extra-curial admission of
all
the
elements of the offence charged. For instance, the admission “
I
killed my wife”
is
not a confession of murder because it lacks an admission of the
required
mens
rea.
The
statement “
I
murdered my wife,”
however,
is a confession because the word “
murder”
is a judicial technical term which includes all the definitional
elements of the crime of murder. (See: Du Toit et al:
Commentary
on the Criminal Procedure Act
(vol 2) 24-53 (service 56, 2016) and the decided cases cited starting
with
R
v Blyth
1940 AD 355.)
[23]
The evidence that the accused said they have stolen the goats must be
looked at in the context of the further evidence that
the accused
took W/O
Jungwana
to the homestead of the complainant where they showed him fresh
markings where they cut the fence to remove the goats.
[24]
The evidence relied on can never, in my respectful view, be a mere
admission because then the rhetorical question arises: an
admission
of what? And the answer can only be an admission of theft of
goats, which elevates the admission to a confession.
[25]
I therefore find that the evidence of the “admissions” by
the two accused, against the totality of all the other
evidence,
amount to a confession of stock theft.
[26]
The next question is whether the confession was admissible in
evidence.
[27]
Section 217 of the Criminal Procedure Act governs the admissibility
of confessions. It is well known and does not bear
repeating.
It suffices to say that confessions are generally admissible subject
to the proviso’s under sub-sections
(1) (a) and (b), and
further subject to the requirements under s. 217 (1). For
purposes of this judgment I accept that the
requirements of the
confession being freely and voluntarily made under s. 217 (1) are
met. The only issue is whether the
proviso under sub-section 1
(a) was met.
[28]
Confessions are inadmissible under the proviso to s.217 (1) (a)
unless they are confirmed and reduced in writing in the presence
of a
magistrate or justice. A non-commissioned officer of the SAPS,
such as W/O
Jungqwana
,
is not a justice of the peace in terms of s. 4 of the Justices of the
Peace and Commissioners of Oaths Act 16 of 1963 (only commissioned
officers are), and therefore not entitled to take confessions.
The requirement that the confession must have been confirmed
and
reduced in writing in the presence of a magistrate or justice has
therefore not been met, and the confession was clearly inadmissible
in evidence.
[29]
The learned magistrate’s contention that he was entitled to
treat the statement as an admission and not as a confession
is, with
respect, devoid of any merit. For the reasons mentioned, the
statement that the accused “
stole”
the
goats is a confession and not an admission, and must be treated as
such.
[30]
The tendering of this evidence by the prosecutor and the acceptance
thereof by the Court, both constitute gross irregularities
which do
not render the trial in accordance with justice.
[31]
The same applies, in my respectful view, to the tendering in evidence
and the acceptance of the previous conviction of stock
theft of
accused no.2 before conviction.
[32]
Section 271 (1) of the CPA reads as follows:
“
(1)
The prosecution may, after an accused has been convicted but
before
sentence
has been imposed upon him, produce to the court for admission or
denial by the accused a record of previous convictions alleged
against the accused.”
(My
emphasis)
[33]
It has repeatedly and authoritatively been held that previous
convictions are relevant only to the issue of sentence, and not
to
any aspect of conviction. This is why s. 271 (1) clearly and
unambiguously provides for the proof of previous convictions
after
conviction
and
before
sentence. The ratio for this requirement is to guard against
the fallibility of human nature to (even subconsciously) assume
that
because an accused person had previously committed a similar crime he
has a propensity to repeat the commission of such a
crime in the
future. (See the commentary and case law in Du Toit (
supra
)
at 27-6A to 27-7).
[34]
In
S
v Njikaza
2002 (2) SACR 481(C)
it was held that for a magistrate to question an
accused on his previous convictions even after conviction but in
circumstances
where the State had indicated that it would not prove
previous convictions, constitutes a “
serious
irregularity.”
To question an accused on his previous convictions – for
whatever reason –
before
conviction, as had both the prosecutor and magistrate done in this
case, constitute in my respectful view an even more serious
irregularity.
[35]
The question whether the proceedings were in accordance with justice
must also be determined with reference to the accused’s
constitutional rights and right to a fair trial.
[36]
Section 35 (1) (a) – (c) of the constitution provide that an
accused has a right “…
not
to be compelled to make any confession or admission …”
Such
a person is also given the right to remain silent and to consult with
a legal representative.
[37]
In
S
v Maliga
2015(2) SACR 202 (SCA) the prosecutor and presiding officer were
severely criticised for the breach of their professional duty
to
ensure that “
justice
is done.”
In
that case the appellant was lured into testifying following the
reception into evidence of a plainly inadmissible confession.
Section 35 (3) of the Constitution, said
Pillay
JA, at [19], “
compels
presiding officers and indeed all officers of the court to play a
role during the course of a trial in order to achieve
a fair and just
outcome.”
[38]
In my respectful view, the prosecutor in this case acted
unprofessionally by tendering into evidence not only a plainly
inadmissible
confession, but also previous convictions before
conviction. The learned magistrate also acted in breach of his
professional
duty by not only allowing clearly inadmissible evidence,
but in addition relying on such evidence in convicting the accused.
[39]
A final issue calls for comment. It is the custom –
indeed the duty – of reviewing Judges to draw the attention
of
magistrates to perceived irregularities in the proceedings.
Very often satisfactory answers and explanations are given
by
magistrates to the Judges’ queries which clear the perceived
irregularities up, resulting in the certification of the
proceedings
as being in accordance with justice. Sometimes the perceived
irregularities are conceded and orders are set aside
or amended.
But the queries of Judges and the responses of magistrates are
always, always couched in civil and respectful
language. Issues
are discussed and addressed, never the persons. The exchanges
are
ad
rem
,
never
ad
hominem.
[40]
The queries raised in this matter by the reviewing Judge are set out
earlier in this judgment. They are couched in respectful
and
moderate terms. Many of the responses by the learned
magistrate, also set out above, do not address the merits of the
issues raised, but cast aspersions on the integrity and intellectual
and judicial capacity of the Judge. The intemperate,
uncivil
and disrespectful language used by the learned magistrate is not only
totally unacceptable, but also calls for strong censure.
[41]
Under our Constitution, the Judiciary and Magistracy constitute one
undivided Judiciary under the administrative management
of the Office
of the Chief Justice. It will be a sad day in our democracy if
these two arms of our Judiciary are allowed
to continue to address
each other in the terms used by the learned magistrate in this case.
I intend to forward a copy of
this judgment to the D.P.P. Mthatha, to
the Magistrate’s Commission, and to the Chief Magistrate,
Mthatha.
[42]
I make the following orders:
1.
The conviction and sentences of accused no.1 and accused no.2 imposed
by the Magistrates’
Court, Bizana, on 26 January 2016 in this
case be and are hereby set aside.
2.
The convictions of both accused are replaced by an order in the
following terms:
Accused
no. 1 and accused no. 2 are both found not guilty and are discharged.
3.
The return of the five stolen goats by the SAPS to the complainant
Beatrice Loggenberg, is
confirmed.
4.
The Registrar of this Court is
requested to forward a copy of this judgment to the Office of the
D.P.P. Mthatha, and the Office of the Magistrate’s Commission,
and to the Chief Magistrate, Mthatha.
________________________
NHLANGULELA
DJP
I
agree:
_______________________
ALKEMA
J
Delivered
on 07 November 2016