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[2016] ZAGPPHC 477
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S v Matjelo (A397/2016) [2016] ZAGPPHC 477 (20 June 2016)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(NORTH GAUTENG,
PRETORIA)
A397/2016
20/6/2016
REVIEW CASE NO. SR
9/2015/BEM
Reportable: No
Of interest to other
judges
Revised.
In the matter between:
THE STATE
And
BOKANG MATJELO
REVIEW JUDGMENT
MOLOPA-SETHOSA J:
[1]
This matter
came before me on special review in terms of section 304(4) of the
Criminal Procedure Act, Act 51 of 1977, as amended,
("The Act").
[2]
The
unrepresented 39 years old accused was charged in the Daveyton
Magistrate's Court with the following:
[2.1.]
Count
1
:
the offence of entering or remaining in the Republic in contravention
of section 49(1) (a) read with
sections 1
,
10
,
25
and
26
of the
Immigration Act, 13 of 2002
as amended.
[2.2.]
Count
2
:
cruelty to animals in contravention of section 2(1) (a) of the
Animals Protection Act 72 of 1962 read with sections 1, 2, 3, and
4
of the Animal matters Amendment Act 42 of 1993-Cruelty to Animals.
[3]
On 21 May
2015 the accused pleaded guilty to count 1 and the court dealt with
the accused under s112 (1) (a) of the Act. The magistrate
convicted
the accused on his plea and he was sentenced on the same day [21 May
2015] as follows:
"You are fined to R300-00 (Three Hundred Rand) or 3
(three) months imprisonment wholly suspended for a period of 5
(five)
years on condition that you are not convicted on the same or
similar offence within the duration of suspension. You are also
declared
unfit to possess a firearm with immediate effect."
[4]
After the
first count (count 1) was dealt with, the accused pleaded guilty in
respect of count 2. During questioning by the presiding
magistrate in
terms of section 112 ( 1) (b) of the Act the accused described how he
defended himself from the attacking dog. The
presiding magistrate
then entered a plea of not guilty in terms of section 113 and the
matter was postponed for trial. It is not
clear on the record why the
matter was separated and subsequently postponed.
[5]
The matter
was sent on a special review by the acting head of the office, the
learned magistrate Bhoola, after mistakes were noted
by the acting
head of the office. In referring the matter for special review the
learned magistrate remarked as follows:
"1. Mr Bokang Matjelo was summoned to appear in
court on the 3010412014 whereby he faced two (2) counts; Count
one (1)
was for being an illegal foreigner in that he had
contravened section 49 (1) (a) read with sections 1, 10, 25 and 26
of
the
Immigration Act, 13 of 2002
as
amended, and Count two (2) was for contravening the provisions of
section 2 (1) (a) of
the Animals Protection
Act 72 of 1962 read with sections
1
,
2
,
3
and
4
of the
Animal Matters Amendment Act 42 of 1993
- Cruelty
to Animals.
2.
Mr Matjelo, was unrepresented and pleaded guilty
in terms of
section 112
(1) (a) of Act 51 of 1977 in respect of count
one (1) and guilty in terms of section 112 (1) (b) of Act 51 of 1977
in respect of
count two (2). Count two
(2) was changed to a
plea of not guilty. Theplea was taken before a contract magistrate;
Mr Lumka.
3.
Mr Matjelo was sentenced to a fine of R300
(three hundred rand) or a fine of (sic) (3) months imprisonment
wholly suspended
for a period of (5)five years on condition
that the accused is not again convicted of the same or similar
offence committed
during the period of suspension. He was
declared unfit to possess a firearm and was ordered to be deported
after the conclusion
of the charge of Cruelty to Animals.
4.
Upon conducting the overhead checking of the
aforesaid charge sheet it had been noticed that:-
1.
Legal rights were not explained to Mr Matjelo on 2010512015.
2.
Rights in respect of bail application were also not explained to
him on the 2010512015.
3.
The warrant of arrest that he was arrested on was not cancelled on
the date that he appeared and there was no record on the charge
sheet
whether an inquiry was held in respect of Mr Matjelo 's non
appearance at court on the 3010412015.
4.
Mr Matjelo appeared again on 2110512015 and no rights in respect
of legal representation or bail were explained to him again.
5.
Mr Matjelo was convicted in terms of section 112(1)
(a)
of
Act 51 of 1977 which generally deals with minor offences. Therefore
the order made that Mr Matjelo be declared unfit to possess
a firearm
could not be made because the offence for which Mr Matjelo was
convicted does not fall under any of the offences
listed under
section 103(1) of the Fire Arms Control Act, 2000 (Act number 60 of
2000). Furthermore neither the state nor the defence
was asked any
comment in this regard before the order was made.
6.
Furthermore a deportation order was made against Mr Matjelo. The
decision to deport is the discretion of Home Affairs which is
preceded
by an investigation in terms of the applicable prescripts.
7.
Furthermore, the finalization of one charge and then postponement
of another charge for further investigation after the plea was
taken
breaches the once-and-for-all principle.
5. I enclose herewith a letter addressed to the
Magistrate together with his response.
6.
When the record was retrieved he was given an
opportunity to read the record but he elected not to.
7.
Under the circumstances it is submitted that the
proceedings be ordered to start de nova before another magistrate.
"
[6]
Prior to
referring the matter to this court on special review, the learned
magistrate expressed the view that cumulatively the accused
did not
receive a fair trial. She therefore directed queries to the trial
magistrate, and the trial magistrate responded.
[6.1.]
The
letter addressed to the trial magistrate by the acting head of the
court dated 10 June 2015 reads as follows:
“
Upon conducting the overhead checking of the
aforesaid charge sheet I have noticed the following:-
1.
Legal rights were explained to Mr Matjelo on 2010512015.
2.
Rights in respect of bail application were also not explained to
him on the 2010512015.
3.
The warrant of arrest that he was arrested with, was not called on
the date that he appeared and there is no record on the charge
sheet
whether an inquiry was held in respect of Mr Matjelo 's non
appearance at court on the 3010412015.
4.
Mr Matjelo appeared again on 2110512015 and no rights in respect
of legal representation or bail were explained to him again.
5.
Mr Matjelo was not sentenced to direct imprisonment therefore he
could not be declared unfit to possess a firearm because the offence
for which he was convicted does not fall under section 103(1) of the
Fire Arms Control Act, 2000 (Act number 60 of 2000).
6.
Furthermore no order could be made for deportation because this is
the discretion of Home Affairs. Deportation can only be preceded
by
an investigation in terms of the applicable prescripts.
7.
Furthermore, you have finalised one charge and then postponed the
other charge for further investigation after the plea was taken
breaches the once-and-for-all principle (sic).
Under
the circumstances I am of a view that the matter must be sent on
special review to be set aside and that the proceedings be
ordered to
start de novo before another Magistrate.
Are
you in agreement with the aforesaid and would you like to comment or
add anything further?"
[6.2.]
In an
email dated 11 June 2015, the trial magistrate responded as follows
to the head of the court's letter of 10 June 2015:
"Madam
1.
The above matter and your letter dated 10 June
2015 refer.
2.
Below see my response to the relevant
paragraphs.
Ad Paragraph 1
Legal rights were explained to Mr Matjelo and the
proceedings were mechanically recorded.
Ad Paragraph 2
Rights with regard to bail were explained to Mr
Matjelo and the proceedings were mechanically recorded.
Ad Paragraph 3
An enquiry was held regarding Mr Matjelo 's failure
to appear at court, proceedings were mechanically
recorded and notes
kept and attached to the charge sheet.
Ad Paragraph 4
Legal rights were explained to Mr Matjelo and the
proceedings were mechanically recorded.
Ad Paragraph 5
I concede.
Ad Paragraph 6
I concede.
"
[7]
After
receiving the record from the Magistrate's court, the record,
together with the query from the magistrate was referred to
the
office of The Director of Public Prosecutions ("DPP") for
comment.
[8]
Advocate B E
Makoe (Makoe) of the DPP, with whom Adv. H M Meintjies SC agrees,
commented that on the totality of the facts on the
transcribed record
the accused probably did not have a fair trial, that the proceedings
cannot be said to have been in accordance
with justice.
[9]
From the
response of the trial magistrate to the acting head of court's query
set out in Para [6.2] here above, though the trial
magistrate
responded that the accused's rights to legal representation had been
explained to the accused, the transcribed record
of proceedings does
not bear witness to this. This seems to have been done only
prior to postponement of the trial for evidence
to be led on count 2
( vide
page 9 lines
20-24 of the transcribed record), i.e. subsequent to the plea and
conviction on count 1.
[10]
Even the
question by the trial magistrate whether he/accused wanted to apply
for a legal aid attorney or to conduct his own defence
was done so
superficially that it cannot be said that the accused really
understood that he had a right to legal representation.
The right to
legal representation should have been explained to the accused on the
very first appearance, and prior to the accused
pleading guilty on
count 1.
[11]
I am in
agreement with the submissions by Makoe that on the facts before this
court it cannot be said that the proceedings had been
in accordance
with justice. The accused clearly cannot be said to have had a fair
trial.
[12]
The
accused's rights to legal representation had not been explained to
him before the trial started. These actions by the court
are highly
irregular and the only conclusion is that the accused did not have a
fair trial. The irregularity which took place vitiated
the whole
trial. In the absence of an explanation of his rights, the accused's
right to a fair trial guaranteed by s 35(3) of the
Constitution was
negated; see S
v Mbathsha
2014
(2) SACR 143
at 145 para [9). It is the task of the presiding
judicial officer to explain the rights of an unrepresented accused to
such accused;
see S
v Malatji and Another
1998
(2) SACR 622
(W) at 624c-h
[13]
Further,
since the accused was unrepresented, the trial magistrate should, as
a matter of fairness, have explained to him the provisions
of Section
112(1) (a), and in particular that he could be convicted on his mere
plea of guilty. The transcribed record does not
reflect that this was
done.
[14]
The
magistrate also omitted to ascertain from the accused whether he is
pleading guilty freely and voluntarily.
[15]
Before the
accused was declared to be unfit to possess a firearm (which was part
of the sentence imposed) in terms of the provisions
of
section 103
(1) of the
Fire-arms Control Act 60 of 2000
, he should have been
invited to place facts before the court to enable the court to
determine whether or not he was indeed unfit
to possess the firearm.
In
S v Lukwe
2005 (2)
SACR 578
(W) at 580f-58 la the following was stated "...the
automatic forfeiture of the right to possess a firearm may have
serious
repercussions for an accused and, as a layman, he cannot be
expected to know of the existence of the provisions of
s 103
(
1
).
For this reason, these provisions should be brought to his
attention.".
[16]
In any
event, as pointed out by the acting head of office, sl 03 does not
find application in this matter.
[17]
Proceeding
to the sentencing stage on the first count, whilst the second count
still had to be dealt with constituted a gross irregularly.
[18]
On the
totality of all above, I am of a considered view that Mr Matjelo did
not have a fair trial and that the proceedings should
be set aside,
as not having been in accordance with justice.
[19]
In the
light of the aforegoing the following order is made:
1.
The
conviction and sentence are set aside.
2.
The accused
is to be tried
de nova
before
a different magistrate.
________________________
L M MOLOPA-SETHOSA
JUDGE OF THE HIGH COURT
I agree
________________________
N P MNGCIBISA-THUSI
JUDGE OF THE HIGH COURT
It is so ordered