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[2016] ZAGPPHC 544
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Shabalala v S (A420/2014) [2016] ZAGPPHC 544 (28 January 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
CASE
NO
: A420
/2014
DATE:
28 JANUARY 2016
In
the matter between:
BHAKI
PATRICK
SHABALALA
...................................................................................
APPELLANT
And
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
RANCHOD
J:
[1]
The appellant was charged in the Ermelo
Regional court with contravening the provisions of section 1(1)(b)(i)
read with section
2 of the Intimidation Act 72 of 1982.
[2]
The appellant appeared in person and
pleaded not guilty to the charge on 5 April 2011. He was convicted as
charged on 8 August 2013
and sentenced to 10 years imprisonment in
terms of section 276(1)(b) of the Criminal Procedure Act 51 of 1977
(‘the Act’).
He was also declared unfit to possess a
firearm in terms of section 103 of Act 60 of 2000. His application
for leave to appeal
against the conviction and sentence was refused
on 28 January 2014. A subsequent petition to the High Court was
successful and
leave was granted on 5 May 2014 against both
conviction and sentence.
[3]
Section 1 (1 )(b)(i) of the Intimidation
Act provides:
“
Any
person who -
(a)
...
(b)
acts or conducts himself in such a
manner or utters or publishes such words that it has or they have the
effect, or that it might
reasonably be expected that the natural and
probable consequences thereof would be, that a person perceiving the
act, conduct,
utterance or publication -
(i)
fears for his own safety or the safety
of his property or the security of his livelihood, or for the safety
of any other person
or the safety of the property of any other person
or the security of the livelihood of any other person; and
(ii)
...
(Section
1(1)(b)(ii) deleted by section 6 of Act 126 of 1992) shall be guilty
of an ofFence and liable on conviction to a fine not
exceeding R40
000 or to imprisonment for a period not exceeding ten years or to
both such fine and such imprisonment.”
[4]
In the charge sheet it is stated that
the persons who were intimidated on 5 August 2006 were Ms Lindiwe
Makhubu, Lihle Masuku and
two minor children. From the record it
appears that the charge related to the appellant intimidating his
wife and two children.
According to the complainant (the appellant's
wife) she wished to go with their children to her parent’s
home. The appellant
refused and said it would be better if they all
died. He would not allow them out of the house and threatened to kill
the complainant
and their children. Their elder child had managed to
alert their neighbour and the police arrived. He refused to let them
in so
they broke down the door to enter and arrested him. Apparently,
he had threatened to stab himself and the complainant with a scissor
and poison the children. The complainant testified that she broke her
relationship with the appellant some time before but he would
not
accept it. At the time of the incident he was not living with the
complainant and their children. He would stay there, as the
second
State witness put it, ‘part-time’.
[5]
The appellant gave a different version
in a prepared statement that he read out in court. He said the
complainant was neglecting
their children, not feeding them, whilst
he saw her sitting with other men drinking beer. He remonstrated with
her, had locked
her and the children with him inside the house to
prevent her from going to drink with the other men again. She had
told him that
as she was not married to him she could do whatever she
liked.
[6]
It appears from the record that the
appellant had been an extremely disruptive and uncooperative person
during the trial. He repeatedly
interrupted proceedings, made wild
allegations, was rude to the presiding magistrate and would not let
the magistrate explain him
his rights at various stages of the
proceedings. He repeatedly insisted that the proceedings must be
transferred to the High Court
even though he was told that he would
be allowed to apply for leave to appeal after the trial had been
completed. He had to be
removed from the court whilst judgment was
being delivered due to his constant interruptions and again when
judgment on sentence
was being delivered. Nevertheless, the
magistrate caused him to be brought into court to tell him what the
verdict and sentence
was.
[7]
it is with this brief background that I
proceed to deal with the magistrate’s handling of the case.
[8]
In view of the several procedural
irregularities that took place during the course of the trial which
were of such a nature as to
vitiate the proceedings, it is not
necessary for me to deal with the merits of the matter in any detaii.
The State conceded as
much in the heads of argument and in oral
submissions.
[9]
In order to put the procedural
irregularities in proper prospective it will also be necessary to
quote rather extensively from the
trial record. But first a comment
is warranted regarding the date of the alleged incident and when the
appellant first appeared
in the regional court.
[10]
According to the charge sheet the
alleged incident took place on 5 August 2006. The appellant’s
first appearance in the regional
court - according to the J15 - was
almost five years later on 14 February 2011. (Prior to that he had
appeared in the District
court on 4 November 2010 when it was
transferred to the regional court). He pleaded (not guilty) on 5
April 2011
and
was convicted on 8 August 2013, some two and a half years later.
[11]
It appears that the lengthy delay in the
finalisation of the matter may be attributed to two factors, firstly,
the appellant had
absconded on 8 December 2006 after he was admitted
to bail on 1 September 2006. He eventually appeared in court almost
four years
later on 4 November 2010. Secondly, when the appellant was
referred for mental observation by the court on 12 May 2011 he
obtained
a bed or space only about 17 months later on 22 October
2012. As I said, the trial eventually took place on 8 August 2013.
[12]
The first issue arose almost immediately
after commencement of trial. (The accused appeared in person). The
presiding magistrate
explained to the appellant after he pleaded that
he may provide an explanation of plea or elect not to. The appellant
elected to
provide an explanation of his plea of not guilty.
[13]
The interpreter at that point informed
the court that the appellant wanted him to interpret what he says in
English so that he (the
appellant) can understand what the
interpreter was interpreting to the Court. The following discussion
took place:
BESKULDIGDE:
Ek wil verduideliking gee.
Goed.
HOF:
TOLK:
HOF:
TOLK:
HOF:
Hy
s£ Edelagbare, ek moet in Engels s§ sodat hy kan verstaan
ook.
Wat
moet ek s§?
Ek
moet u in Engels s§, sodat hy kan verstaan.
O
goed, die tolk sS vir die Hof in Afrikaans, Meneer, dis die taal wat
die hof gebruik.
[14]
In my view, it was not an unreasonable
request of the appellant. The magistrate could have accommodated it.
After ail, English is
a language of the courts. Section 35(3) of the
Constitution of the Republic of South Africa, 1996 provides:
‘
(3)
Every accused person has a right to a fair trial which includes the
right-
(k)
to be tried in a language that the accused person understands or, if
that is not practicable, to have the proceedings interpreted
in that
language.’
[15]
It is so that there was an interpreter
who interpreted into and from a language spoken by the appellant To
that extent there was
compliance with section 35(3) of the
Constitution. It seems, however, that the appellant wanted to hear
the interpreter's interpretation
of what he was saying if what he
said was interpreted into English. Although there was compliance with
section 35(3) in the strict
sense there was no reason why his request
could not be complied with and the refusal is to be deprecated.
[16]
The State called four witnesses, namely,
Ms Undiwe Makube, Ms Cinderella Agatha Lige Masuku, Lt. Col. Zanele
Winny Mafoso and Warrant
Officer Mokonyane.
[17]
The following appears from the record
when the four State witnesses were called to testify:
“
Prosecutor:
State calls Lindiwe Makube
Hof:
Beskuldigde moet mooi luister wat hierdie getuie gaan s£ want
hy sal later kans kry om met haar te stry oor wat sy getuig
het. Die
hof say sy regte volledig vlr hom verduidellk as sy klaar getuig het,
op hierdie stadium moet hy mooi luister, sodat hy
later met haar kan
stry as hy sou wou. Goed, getuie se voile name asseblief.
Lin
Makhubu: Lindiwe Jane Prince Anel Steyn Makhubu.
Hof:
Goed dankie, sal u sweer dat u die waarheid sal praat.
Lin
Makhubu: Ja.
Hof:
Goed dankie, sweer haar in.
Lindiwe
Jane Prince Anei Steyn Makhubu ingesweer.
Hof:
Goed
Examination-in-chief
by the prosecutor
Record:
p. 221. 24-p. 23I. 12
After
this witness testified, the next witness was called
Prosecutor:
As the court pleases. The State calls Lige Makhubu
Hof:
Getuie se voile name asseblief?
C.A.L
Masuku: Cinderella Agatha Lige Masuku
Hof:
Goed, sal die getuie sweer dat sy die waarheid sal praat?
C.
A.L Masuku: Ja
Hof:
Dankie, sweer haar in, asseblief.
Cinderella
Agatha Lige Masuku ingesweer.
Record:
p. 37 I. 7-14
The
next witness was Lt. Col. Mafoso
Mafoso:
I am Lieutenant Colonel Zanele Winny Mafoso
Court:
Are you going to give evidence in English?
Mafoso:
Yes
Court:
Do you have any objection to the prescribed oath?
Mafoso:
No
Zanele
Winny Mafoso sworn in Record: p. 48 1.13-18 Thereafter:
Prosecutor:
State calls Warrant Officer Mokonyane Hof: Yes, jou voile name
asseblief.
Mokonyane:
Joshua Nstutuzedi Mokonyane
Hof:
Ek kan nie onthou of, dit adjudant is... wat, u praat Zulu of praat u
Engels?
Mokonyane:
Enige taal Hof: Zulu? Goed Mokonyane: English
Hof:
Englsih? No objection to the prescribed oath?
Mokonyane:
No, your Worship.
Joshua
Nstutuzedi Mokonyane sworn in.”
Record:
p. 551.1-11
[18]
Section 162 of the Act, as amended,
provides:
u
(1)
Subject to the provisions of Section 163 and 164, no person shall be
examined as a witness in criminal proceedings unless he
is under oath
which shall be administered by the presiding judicial officer or, in
the case of a superior court, by the presiding
judge or the registrar
of the court, and which shall be in the following form:
“
I
swear that the evidence I shall give, shall be the truth and nothing
but the truth, so help me God.”
If
any person to whom the oath is administered wishes to take the oath
with uplifted hand, he shall be permitted to do so”.
The
provisions of Section 162 are peremptory.
Vide:
Mashava
1
.
[19]
In the lower courts the oath must be
administered by the judicial officer; in a superior court by the
presiding judge or the registrar
of the court. Naturally, where
interpretation is required, it must be interpreted into the accused’s
preferred language.
[20]
In casu
the record shows that with regard to the first two State witnesses,
the presiding officer himself administered the oath in the
incorrect
form and then presumably instructed the interpreter to swear them in
and, it would seem, the remaining State witnesses
were also sworn in
by the interpreter. The record does not reflect the form in which the
witnesses were sworn in by the interpreter.
[21]
In
Nkoketsent
Elliot Pllanev v
S, unreported
judgment by Hendriks J Case No. CA 10/2014 in the North West High
Court, Mafikeng, it was held that if an oath was
not properly
administered in terms of the prescripts of Section 162 of the Act,
what was said by the witness lacks the status and
character of
evidence and is therefore inadmissible. I agree. That also being the
case
In
casu
there is therefore no
evidence before this court in the appeal to adjudicate upon. On this
ground alone an irregularity was committed
by the presiding officer
which vitiated the entire proceedings.
[2?]
I turn then to the issue of referral of the appellant for mental
observation. The record shows that the presiding magistrate
initiated
the referral of the appellant on 12 May 2011 saying:
"HOF:
die hof gaan die beskuldigde stuur vir waarneming, dis duidelik dat
hy nie heeltemal reg in sy kop is nie."
[1]
[23]
The appellant refused to be referred for
observation.
[24]
When court proceedings resumed 18 months
later on 13 November 2012
after
the appellant was observed for 30 days at Weskoppies Hospital, the
prosecutor, without referring to this aspect merely placed
on record
that the State closes its case.
[25]
The presiding officer then alluded to
the availability of a Weskoppies report and merely read out a part of
the report to the appellant:
"Hof:
Goed. Intussen het ons ook toe nou die psigiatriese verslag terug
ontvang van Weskoppies en die verslag se bevinding.
'Despite
his mental disorder the accused is capable (of?) understanding court
proceedings and is able to contribute meaningful to
his defence.”
Record: p. 751. 23- p. 761.3.
[26]
However the relevant part of the
psychiatric report reads as follows:
“
B.
Psychiatric diagnosis: Cognitive disorder not otherwise specified.
C.
Despite his mental disorder the accused
is capable of understanding court proceedings and is able to
contribute meaningfully to
his defense.
D.
At the time of the alleged offence the
accused did not suffer from a mental disorder or mental defect that
affected his ability
to distinguish between the rightful or wrongful
nature of his deeds. A mental disorder or mental defect did not
affect his ability
to act in accordance with the said appreciation of
the rightful or wrongful nature of his deeds,"
Record:
p. 245
[27]
Section 77(2) and (3) of the Act, reads
as follows:
“
(2)
If the finding contained in the relevant report is a unanimous
finding of the persons who under section 79 enquired into the
mental
condition of the accused and the finding is not disputed by the
prosecutor or the accused, the court may determine the matter
on such
report without hearing further evidence.
(3)
If the said finding is not unanimous or,
if unanimous, is disputed by the prosecutor or the accused, the court
shall determine the
matter after hearing evidence and the prosecutor
and the accused may to that end present evidence to the court,
including the evidence
of any person who under section 79 enquired
into the mental condition of the accused.”
[28]
In
Matu
3
Hartle J held as follows:
“
(13)
Leaving aside for the moment that the accused was unassisted, the
magistrate further skipped ahead to the enquiry without first
making
the determination that the accused is not capable of understanding
the proceedings so as to make a proper defence in terms
of s 77(6)(a)
of the CPA. Even antecedent to that, she failed to establish from the
parties whether the s 79 report was disputed.
It is only on the basis
of a unanimous and undisputed report that the matter may be
determined without hearing further evidence.
(14)
She appears to have assumed, with
reference to annexure B, that the prosecutor accepted the finding of
the panel, but this ought
to have been clearly established and an
indication made on the record to this effect. As for the accused, the
record is innocent
of any invitation extended to him to indicate if
he wished to dispute the finding; or of any explanation made to him
concerning
his right to lead evidence on the basis provided for in ss
(3) or indeed as to the consequences which might ensue arising from
the drastic provisions of Ch 13. In my view, the phrase 'is not
disputed by ... the accused' referred to in the subsection cannot
be
equated with an accused person being unable to dispute it by virtue
of mental illness or defect. The accused has a clear election
to
challenge a s 79 finding and to present evidence towards this end."
In
casu
the
appellant was not even informed by the presiding officer that he was
suffering from a 'cognitive disorder not otherwise specified’.
[29]
in
Matu
supra,
the matter was remitted to
the magistrate to make a determination pursuant to the provisions of
section 77(2) or (3) of the Act
as the case may be and such further
order and directive thereupon as is appropriate in the circumstances.
In
casu,
the Court a
quo,
at a later stage during the trial, made the following impatient
remark regarding the appellant’s mental state:
“
Op
v
n stadium toe stuur ek hom Weskoppies toe, toe s6 hulle
daar is inderdaad toe nou iets fout met hom maar niks, nie vreeslik
emstia
nie." Record: p. 1001. 3-5
[30]
At the conclusion of the appellant’s
examination-in-chief, the appellant refused to answer questions posed
by the prosecutor
and the presiding officer then gave the prosecutor
instructions to submit a typed copy of the court proceedings to the
Director
of Public Prosecutions for their guidance (s/c!). The matter
was postponed for this purpose to 8 August 2013.
[31]
On 8 August 2013, neither the prosecutor
nor the presiding officer made mention of this aspect and the
presiding officer merely
regarded the defence case as closed.
Record:
p. 100 I. 24 p. 1081. 23
[32]
Judgment was delivered in the absence of
the appellant.
Record:
p. 1101.5
[33]
During cross-examination by the
prosecutor, the presiding officer made . the following remarks:
“
Dankie
die beskuldigde, just take him outside please or must I remove him
myself now? Maart maand volgende jaar mevrou gaan ek nie
hierdie
mannetjie se nonsense langer opvreet nie.
Aanklaer:
Onhoorbaar
Hof:
Dit is sy problem hy kan wat die hof betref ek is nou keelvol vir hom
wat my betref kan hy tot ek die dag aftree sal ek sy
saak uitstel."
Record: p. 90 r. 17-24
[34]
In
Sallem
4
at 785F-J the court held as follows:
“
Ongeduld
is lets wat 'n regspreker waar moontlik moet vermy en in elk geval
altyd streng moet beteuel. Dit kan sy insig belemmer,
sy oordeel
verswak en 'n indruk van vyandigheid of vooroordeel wek by die
persoon teen wie dit gerig is. Wanneer daardie persoon
’n
beskuldigde is, sal so 'n indruk behoorlike regspleging tot meerdere
of minderemate ondermyn na gelang van die geval.
Dit kan die
regspleging ook heeltemal verongeluk.”
[35]
In
Tyebela
5
at 32 I-33A, Milne JA held as follows:
The
trial Judge, furthermore, on a number of occasions interrupted the
cross-examination of State witnesses by the appellant and
his
coaccused. I know only too well from experience how protracted
and seemingly irrelevant most of the cross-examination
conducted by
an accused person, appearing in person, often is, and how irritating
it can be. The Judge's plain duty is, however,
to maintain his cool-
headedness in the face of irritation and this the trial Judge failed
to do.”
[36]
On 5 April 2011 when the appellant was
cross-examining W/O Mokonyane the presiding officer remarked as
follows:
“
Inspekteur,
vat vir my die man weg ek gaan die saak uitstel, dis duidelik hy stel
nie belang om enigiets te luister na wat ges£
word verder in
die hof nie. Inspekteur, u is verskoon, ek sal die beskuidigde oor 'n
paar weke, as ons die saak uitgestel het sal
ek hom weer roep en dan
sal ons u terugroep en dan kan ons kyk of hy bereid is om saak
(sic)
te werk, hy stel biykbaar nie belang nie. Die saak staan af.”
[37]
On 12 May 2011 he again decided to
postpone the matter for the same reason and remarked that he will
again postpone it until such
time as the appellant ‘starts
listening’.
Record:
p. 69 I. 9-11
[38]
The same happened on 13 November 2012.
u
am
going to postpone your case once again because you are starting with
the same nonsense all over again.”
Record:
p. 781. 8-10
[39]
During cross-examination of the
appellant the presiding officer, ostensibly again allowed his
impatience to get the better of him:
“
Dankie,
die beskuldigde just take him outside please or must I remove him
myself now? Maart maand volgende jaar mevrou ek gaan nie
hierdie
mannetjie se nonsense langer opvreet nie.
Dit
is sy probleem hy kan wat die hof betref ek is nou keelvol vir hom
wat my betref kan hy tot ek die dag aftree. Sal ek sy saak
uitstel...
Volgende jaar Maart maand asseblief 'n datum mevrou voor ek jou ook
nou verhoor vir minagting van die hof...
Goed
Januarie maand is ek terug die tweede deel van Januarie dan kan ons
maar weer met hom gesels en hoor of hy bereid is om te
praat.”
Record:
p. 901.17 Record: p. 91 1.13
[40]
As
I said, the appellant’s behaviour no doubt sorely tried the
magistrate’s patience. Nevertheless, it is regrettable
that the
magistrate allowed his irritation and impatience to get the better of
him. It is particularly so where an accused appears
in person that
patience is required. The right to dignity is enshrined in the
Constitution
[2]
.
[41]
In my view, the irregularities are of
such a nature that they vitiate the entire proceedings and the
conviction and sentence should
be set aside.
[42]
I would make the following order:
27.1
The appeal is upheld.
27.2
The conviction and sentence are set
aside.
RANCH™
J 17
JUDGE
OF THE HIGH COURT
Counsel
on behalf of Appellant Instructed by
Counsel
on behalf of Respondent Instructed by
Date
heard Date delivered
:
Mr Moeng; Pretoria Justice Centre : Adv Pienaar : Director of Public
Prosecutions, Pretoria : 13 October 2015
:
p8
[1]
Record p71 line 19-20.
[2]
Section 10: ‘Everyone has inherent dignity and the right to
have their dignity respected and protected.’