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[2015] ZAGPPHC 274
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S v Ndau (A292/15) [2015] ZAGPPHC 274 (6 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH DIVISION, PRETORIA
High Court
Reference No 216/15
Magistrate’s
Serial No: 12/2015
Date: 6 May 2015
Case number:
A292/15
In the matter
between:
THE
STATE
and
KENNY
NDAU
.........................................................................................................................
Accused
REVIEW JUDGMENT
1. This matter has
been placed before a judge in chambers for a special review in terms
of
section 304(4)
of the
Criminal Procedure Act 51 of 1977
to review
and correct the proceedings before the Bronkhorstspruit Magistrate’s
Court.
2.
The accused, a 23 year old male, was charged with having contravened
section 4(b)
of the
Drugs and Drug Trafficking Act 140 of 1992
by
being in possession of
“
heroine
aka nyaope’.
He
pleaded guilty and was convicted and sentenced to 24 months
imprisonment.
3. The accused was
unrepresented. The presiding magistrate was therefore obliged to
question the accused in terms of
section 112
of the
Criminal
Procedure Act 51 of 1977
to establish whether the accused appreciated
the implications of his guilty plea and, more particularly, whether
he admitted all
the elements of the offence he was charged with.
4. Several
irregularities occurred in the proceedings that were conducted at
break-neck speed:
a) In the first
instance, heroine and nyaope are not identical, the latter being a
combination of marijuana and heroine, a fact
which is so notorious
that a judicial officer in the criminal court could take judicial
notice thereof. The charge sheet was therefore
ambiguous and
contradictory, nullifying a plea of guilty as it did not disclose the
alleged offence properly;
b)
Secondly, the magistrate asked only three perfunctory questions,
including one:
“
Nyaope
is an undesirable dependence producing substance?'
It
has been emphasized repeatedly that it is unfair to confront
undefended and often barely literate accused with legal phrases
and
statutory definitions, which are not couched in ordinary language,
and expect an informed response. In this respect the trial
was
clearly unfair;
c) There was no
proof whatever that the substance allegedly found in the accused’s
possession was an undesirable dependence
producing substance and the
accused was not asked to explain his personal knowledge of the
composition of the substance he was
charged with being in possession
of;
d) The sentencing
proceedings were not transcribed. The accused was sentenced to
imprisonment for 24 months. According to the documents
in the case
file he may have had a previous conviction for the same offence, but
there is no indication on the record that he was
confronted with his
criminal record; albeit that a signature appears upon the SAP 69 form
that might be the accused’s;
e) As there is no
record of the sentencing proceedings the trial magistrate’s
reasons for imposing a lengthy prison sentence
are unknown. The
magistrate has resigned and is no longer available to correct the
record.
f) There is no
indication on the record that the accused was informed that the
matter was reviewable and that he had the right to
make
representations as part of this process. The fact that the magistrate
omitted to note on the charge sheet that the matter
was reviewable
may indicate that he also failed to inform the accused of his right
to participate in the review proceedings.
5. As the magistrate
failed to ensure that the proceedings were reviewed, and as the clerk
of the court did not send the matter
on review of his or her own
accord, the accused remained in jail without the irregular
proceedings being subjected to further judicial
scrutiny until a
quality assurance assessment was conducted after January 2015 of the
trial magistrate’s cases. The Chief
Magistrate for the
district, Mr D. Nair, thereupon acted with commendable alacrity in
ensuring that the matter was sent on special
review to the High
Court. Unfortunately, and for reasons that have remained unexplained,
the record under his covering letter dated
the 10
th
April
2015 only reached the reviewing judge on the 4
th
May 2015.
6. After studying
the record the reviewing judge ordered the accused’s immediate
release because of the above irregularities
that lead to the accused
receiving an unfair trial.
7. In the light of
the above reasons, the following order must be made:
1. The conviction
and sentence are set aside.
2. The accused is to
be released from prison immediately.
Signed at Pretoria
on this 5
th
day of May 2015.
E BERTELSMANN
Judge of the High
Court
I agree
W. HUGHES
Judge of the High
Court