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[2015] ZAGPPHC 585
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S v Gqagqa (17/15, SH232/14) [2015] ZAGPPHC 585 (7 May 2015)
IN THE
HIGH
COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
HIGH COURT REFERENCE
NO: 17/15
MAGISTRATE'S SERIAL NO:
MAGISTRATE'S
CASE NO:
SH232/14
19/5/2015
JUDGE'S CHAMBERS
HIGH COURT
GAUTENG DIVISION
PRIVATE BAG 442
PRETORIA
0001
MAGISTRATES COURT:
NELSPRUIT
PRIVATE BAG X 11207
NELSPRUIT
1860
05
May 2015
In the matter between:
THE STATE
and
SYDNEY
NYAMAYABO GQAGQA
CORAM:
HUGHES J
et
TLHAPI J
SPECIAL
REVIEW JUDGEMENT
HUGHES
J
1. This is a special
review in terms of section 304 of the Criminal Procedure Act 51 of
1977 ("the Act").
2. The unrepresented
accused was charged as follows in the Nelspruit Regional Court:
2.1
Housebreaking with intent to commit a crime unknown to the State read
with the
provisions of
section 262(2)
of the
Criminal Procedure Act,
Act
51 of 1977.
2.2
A contravention of the provisions of
section 3
read with sections 1,
2, 50, 56(1), 56A, 57, 58, 59, 60 and 61 of the Criminal Act (Sexual
offences and related matters Act
32 of 2007) (Rape).
3. On 17 October 2014 the
presiding officer convicted the accused stating the following at page
45 line 19 of the record of the
proceedings:
"He
is accordingly
convicted
as charged' .
4. The accused's previous
convictions were read out to him and he duly confirmed same.
Thereafter the presiding officer said the
following at page 46 lines
11-13:
"
Thank
you.
I just
want
to
add
accused
on
count
1 you
are
found
guilty
with housebreaking
with
intent to
rape
and
rape.
And
on
count
2 of
rape
contravening
Section 3"
.
5.
Firstly, by doing so the presiding officer purported to invoke
section 176 of the
Act.
6.
Section 176 reads as follows:
"176
Judgment
may
be corrected
When by mistake a wrong
judgment is delivered, the court may, before or immediately after it
is recorded, amend the judgment."
7. I am guided by the
approach adopted by
Joubert JA in S v Wells 1990(1)
SA
816 (A)
at 820
E
- G:
"According to
Voet
a Judge may also, on the same day, after the pronouncement of his
judgment add
(supp/ere)
to it all remaining matters
which relate to the consequences of what he has already decided but
which are still missing from his
judgment. He may also explain
(
explicare)
what has been obscurely
stated in his judgment and thus correct
(
emendare)
the wording of the record provided that the tenor of the judgment
is preserved.
In
my judgment
Voet's
approach should be accepted as a correct
statement of our common law on this matter. It moreover accords with
South African practice.
In criminal matters it should be read in
conjunction with s 176 of the Act if necessary ..."
8. The presiding officer
having heard the evidence and having dealt with the merits of the
case pronounced the accused guilty as
charged in respect of count 1
and 2 as per the charges put to the accused. Thus, the initial
conviction in respect of count 1 was
housebreaking with intent to
commit a crime unknown to the State read with the provisions of
section 262(2) of the Act and count
2 was rape.
9. With the attempt to
amend the conviction on count 1it is evidently irregular for the
presiding officer to convict the accused
of a charge not put to him
in respect of count 1. This irregularity goes to the merits of
the case and this conduct
cannot be rescued by invoking the
provisions of section 176 of the Act.
10. It goes without
saying that it is evident that the purported attempt to invoke
section 176 created a duplication of count 2
that being the rape
counts.
11. In the result the
conviction and sentence in respect of count 1 is deemed to be
irregular.
12. A further
complication is that during the proceedings the following interchange
occurs at page 24 lines 1 to 16 of the record:
"ACCUSED:
Your worship
I
wish to address
the
Court from
where I am
standing.
COURT: You can stand
anywhere but you must take the oath and testify. You cannot make a
statement which is not confirmed under oath.
So you must testify
under oath.
ACCUSED:
Your
worship I wish
to
address the Court
from where
I
am standing. I do not want to go over there.
COURT: So you do not
want to testify? Do you just want to address the Court?
ACCUSED: Yes,
your worship.
COURT: So you do not
want to testify. Is that your case or do you want to call witnesses
on behalf of your case?
ACCUSED:
I want to call witnesses your worship. COURT: Do you want to call a
witness?
ACCUSED:
Yes,
but they are
not
present in court today."
13. Bearing in mind that
the accused was unrepresented and that when he gave his plea
explanation that he had consensual sexual
intercourse with the
complainant, the presiding officer recorded this explanation as an
admission in terms of section 115(2)(b)
of the Act. The presiding
officer in my view was duty bound to explain to the unrepresented
accused that the admission made as
it stood was not sufficient to
amount to being evidence. For the said admission to have weight as a
defence it was still necessary
for him to testify under oath in order
for the prosecution to cross-examine and test the veracity thereof.
14. It is evident from
the interaction, as set out above, between the accused and the
presiding officer that the accused wanted
to testify from where he
was standing, that being 'the dock'. In my view had the presiding
officer probed further when he posed
the question below it would have
been clear what the accused intended when he answered the presiding
officer. It still is not clear
to which question the accused said
'yes':
"COURT:
So
you
do
not
want
to
testify?
Do
you
just
want
to
address
the Court?
ACCUSED: Yes,
your worship."
On reading the record to
me this was not a case of the accused not wanting to testify when he
responded when he did. It might be
that he did not want to go to the
witness box and testify and rather wanted to do so from the dock. But
if the presiding officer
made further enquiries this court would be
in a better position than what it is currently. If for any reason he
feared to testify,
or feared to testify in the witness box or thought
there was no difference in him not testifying, I honestly do not know
as it's
not evident from the record.
15. I refer to S
v
Mungoni
1997(2) SACR
366 at 367 f
-
g
where the case of S
v Mkhize 1978(2)
SA 249 (N)
was quoted:
"In
S
v
Mkhize
1978 (2) SA 249
(N) the
learned Judge President said at 251G - H:
'If
he is not defended, the judicial officer, when explaining the
accused's rights to him at the conclusion of the State case,
must
make sure that he is under no misapprehension about the matter and
appreciates that the statement he made at the beginning
of his trial
is not evidence in the case and that, if he wishes to lay his story
before the Court, he must do so on oath."'
16.
In light of the fact that it was not established whether the accused
was saying yes to wanting not to testify or yes to wanting
to address
the court, in these circumstances the accused was not afforded a fair
trial in terms of section 35
of the Constitution even
though an attempt of sorts was conducted to establish if the
unrepresented accused wanted to testify or
just address the court.
17.
In this regard align myself with what was stated in
Mungoni supra
at 367 a - c:
"The magistrate did
not bother to ascertain why the accused was afraid to go into the
box. The apprehension could have been
unjustified in which case
the magistrate could have cleared up any false notions which
the accused might have had of
giving evidence.
When
the accused said:
'The
evidence that I have already tendered in this accused dock is the
evidence that I can even tender there'
it should have been
apparent to the magistrate that the accused had
not
understood his earlier explanation regarding his s 115
statement."
18. The accused was
sentenced on 17 October 2014 for count 1 to seven years and ten years
imprisonment for count 2. It was ordered
that the seven years in
respect of count 1 would run concurrently with count 2. Thus the
accused is to serve a total of ten years
imprisonment.
19. The special review
request is dated 20 December 2014. Legodi J sent the record of the
proceedings to the Director of Public
Prosecutions (OPP) which
acknowledged same on 2 February 2015. The response from the OPP was
acknowledged on 2 March 2015 by Legodi
J and these were transmitted
to the presiding officer on 16 March 2015 for his comments. The
presiding officer's response was acknowledged
by this court on 30
March 2015.
20. Of concern is the
comment made by the presiding officer which clearly smacks of sarcasm
to say the least as reflected below:
"
To
my
surprise
and
disbelief
I
discover
I
did
not
explain
to
accused
that
his Section
115 Act
51177
statement
does
not
constitute
evidence
and
that
if
he
wanted
the
court
to
take
cognisance
he
will have
to
testify
so
it
can
be
tested under cross-examination
as
reflected in
Sv Mungoni
1997
(2)
SACR 366
VHC"
21. This in my view goes
against the grain of a presiding officer responding to the reviewing
Judge in a responsible, complete and
courteous manner. That much was
stated in
S v Mogetwane
2000
(2) SACR
407
at 408 e -
g:
"Wanneer daar 'n
navraag of navrae deur 'n Hof aan 'n landdros gerig word, word van
laasgenoemde verwag om ten minste verantwoordelik,
volledig en hoflik
daarop te reageer - iets wat in die onderhawige geval op albei
geleenthede nie gebeur het nie. Dit is onaanvaarbaar
vir 'n landdros,
soos in die eerste navraag die geval was, om nie eens die moeite te
doen om 'n skrywe te rig waarin hy sy instemming
en/of verduideliking
vir sy aanvanklike optrede te kenne gee nie - die landdros se optrede
vir soverre dit hierdie navraag aangaan,
getuig myns insiens van
onbetrokkenheid en disrespek.
Vir soverre dit die
reaksie op die tweede navraag aangaan, is die posisie nie veel beter
nie. Die indruk wat die landdros daarin
skep, is dat die navraag
ooglopend ongegrond, onnodig of oorbodig was - ..."
22. In the circumstances
I am of the view that the accused in this instance will not receive a
fair trial if the matter is remitted
to the same Magistrate as it is
clear from the attitude displayed by the presiding officer that the
rights of the accused entrenched
in our Constitution will be
compromised.
23. Consequently in the
interest of justice the conviction on both counts 1 and 2 and the
sentences are set aside. The proceedings
are to commence
de
novu
before another presiding officer of Nelspruit
Regional Court.
_____________________________________
W.
Hughes Judge of the High Court
I concur and it is so
ordered:
_____________________________________
V. V. Tlhapi Judge of the
High Court