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[2015] ZAGPPHC 216
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S v Joale (A192/15) [2015] ZAGPPHC 216 (30 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case number:
A192/15
Date: 30 March
2015
THE STATE
V
MODISE
WILLIAM JOALE
MAGISTRATE SERIAL
NO.: RC1/4
MAGISTRATE CASE
NO.: 14/2024/2014
HIGH COURT REF
NO.: 105/2015
JUDGMENT
PRETORIUS J.
[1] This matter was
placed before the court as a special review. The accused was charged
with multiple counts under the Criminal
Law Amendment Act 32 of 2007.
During the course of the trial it became apparent that the
complainant in counts 2, 3 and 4 attempted
to testify in Zulu,
although her home language is Sepedi. The regional magistrate
submitted the part-heard criminal trial for special
review to this
court.
[2] It is further
clear from the record that the presiding magistrate found that the
complainant was not fluent in Zulu, but testified
in Zulu as her
grandmother had told her to do so and the intermediary had addressed
her in Zulu. The complainant had only a limited
understanding of
Zulu. She is a minor who had to testify in a different language from
her home language pertaining to very serious
allegations of a sexual
nature against the accused.
[3] There is no
provision in the
Criminal Procedure Act 51 of 1977
to deal with a
matter where it is patently clear that the evidence of a witness is
compromised as she could not fully understand
the proceedings in
court. This is obviously an irregularity as conceded by the
representative of the Director of Public Prosecutions.
[4] Section 35(3)(k)
of the Constitution 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”
Section
304(2)(c)(iii) of the Criminal Procedure Act provides:
“
(c)
Such court, whether or not it has heard evidence, may, subject to the
provisions of section 312
—
(iii) set aside
or correct the proceedings of the magistrate’s court;”
This
is in regard to conviction and/or sentences in the Magistrate Court
and do not deal with the present circumstances. The court
cannot find
any reason why this court should not deal with the matter at this
stage, before it has been finalised in the court
a
quo.
The
provisions of section 35(3)(k) of the Constitution should equally
apply to a witness in a criminal trial, as to an accused.
[5]
In
S
v Ngubane 1995(2) SA 811 (TPD)
the
court decided that the court has inherent power to intervene where
the accused in that matter had not understood the language,
irrespective of the stage reached in the trial court. Injustice will
result if the magistrate proceeds with another interpreter,
as the
complainant’s evidence may differ if it is correctly
interpreted into her home language. It would be difficult to
decide
which parts of the evidence are correct.
[6] The fundamental
right of the witness to give evidence in her own language has been
breached. This is exacerbated by the fact
that she is a minor, giving
evidence through an intermediary in a serious criminal case. The
trial cannot proceed and the proceedings
should be set aside.
[7]
I
make the following order:
1.
The proceedings in the court a
quo
are set aside;
2. The accused is
to be tried before another magistrate;
3.
The complainant
Lihle Motelele is to testify in Sepedi.
Judge C Pretorius
I agree.
Judge R G Tolmay