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[2015] ZAFSHC 37
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S v Molete (192/2014) [2015] ZAFSHC 37 (26 February 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Review number: 192/2014
DATE: 26 FENRUARY 2015
In the matter of:
THE STATE
And
MOLAHLEHI ZACHARIA
MOLETE
.....................................................................................
Accused
CORAM: RAMPAI, J et G.J.M. WRIGHT,
AJ
JUDGMENT BY: G.J.M. WRIGHT, AJ
DELIVERED ON: 26 FEBRUARY 2015
CHRONOLOGY
[1] The Accused stood trial in the
district’s court at Kroonstad on one count of assault with
intent to do grievous bodily
harm and one count of malicious damage
to property.
[2] The Accused pleaded not guilty. On
22 MAY 2014 the Accused was found guilty as charged. The prosecutor
then proceeded to prove
previous convictions against the Accused. At
the time that the attorney representing the Accused was given the
opportunity to proceed
in mitigation of sentence, the attorney
requested that the case be postponed. The reasons given for this
request was that
“the defence still needs to study
the judgment and to decide on the next step as the defence is
intending to draft a request
for the reasons for judgment and . . .
if possible, after studying the same to proceed with an application
for leave to appeal
in this matter . . .” [own emphasis]
[3] The presiding magistrate postponed
the matter for the proceedings to be transcribed and then mero motu
placed on record that
he was recusing himself as he did not feel
comfortable proceeding with the sentencing proceedings and that he
intends to send the
matter on special review.
[4] The matter served before LEKALE J
as reviewing judge who proceeded to making the following enquiries
from the magistrate:
“• Why did the magistrate
not feel comfortable to impose sentence?
• Why did the magistrate recuse
himself from the matter?
• Why does the magistrate feel
that the matter is reviewable?”
[5] The following forms part of the
response received from the magistrate:
“By informing the Court before
sentence that the defence is considering to appeal against the
conviction, the defence thereby
indicated that there are reasonable
grounds on the part of the litigant for apprehending that I was not
or will not be impartial.
. . . I nevertheless erroneously invoked
section 304A to review the conviction and recusal that was not
followed by a sentence
. . .”
[6] Section 304A of the Criminal
Procedure Act is applicable to the review of criminal proceedings in
the lower courts before the
imposition of sentence. The pertinent
portion of the section reads as follows:
“If a magistrate or regional
magistrate after conviction but before sentence is of the opinion
that the proceedings in respect
of which he brought in a conviction
are not in accordance with justice, or that doubt exists whether the
proceedings are in accordance
with justice, he shall, without
sentencing the accused, record the reasons for his opinion and
transmit them, together with the
record of the proceedings , to the
registrar . . .”
[7] In the present matter the
magistrate may therefore have been entitled to invoke the provisions
of section 304A in an appropriate
situation. Unfortunately, the
magistrate failed to properly apply and follow section 304A. He
failed to set out the reasons for
invoking section 304A before
transmitting the matter for review. Also, from his response to
enquiries, it is clear that he acted
rashly and overly cautious.
[8] The magistrate’s response to
the enquiries by LEKALE J does not explain that the proceedings were
not in accordance with
justice nor does the magistrate express a fear
that the proceedings may not have been in accordance with justice.
Instead the magistrate’s
response indicates nothing more than
that he saw the defence attorney’s intention to appeal against
the conviction as an
assault on his impartiality, without any such
reasons placed on record by the defence attorney himself or without
such reasons
being evident from the record of proceedings itself. The
magistrate inappropriately took offence at the intimation that he
wrongly
convicted the Accused.
[9] Section 304A does not open the door
for indecision. Before action can be taken in terms of this section,
the magistrate must
have formed the opinion that the proceedings are
in fact not in accordance with the law or that there is substantial
doubt about
whether the proceedings are in accordance with justice.
Trifling matters do not receive attention. The test is whether it
would
be unjust and lead to irreversible harm to the accused to allow
the case to run to its conclusion before interfering. See: S v
Klaase1998 (1) SACR 317 (C).
[10] Furthermore, it is doubtful
whether the procedure provided by section 304A is intended to apply
when an accused enjoyed legal
representation. However, courts will
not hesitate to act under this provision when the interests of
justice demand intervention.
See: S v Shamatla 2004 (2) SACR 570 (EC)
at 573 b – d.
[11] Appeals are frequently levelled at
convictions and the misdirections committed by magistrates during
trials. This is seldom
an indication of bias or partiality by a
presiding officer. The mere indication by an accused that he is
dissatisfied with his
conviction is not a ground for the recusal of a
magistrate, especially if the accused person himself does not request
the magistrate
to recuse himself. It would be a sad day for the
justice system in this country if the mere dissatisfaction of an
accused person
with his or her conviction would result in presiding
officers recusing themselves.
[12] The test for a recusal was again
restated in the case of President Of The Republic Of South Africa And
Others v South African
Rugby Football Union And Others
[1999] ZACC 9
;
1999 (7) BCLR
725
(CC) at par
[48]
:
“The question is whether a
reasonable, objective and informed person would on the correct facts
reasonably apprehend that
the Judge has not or will not bring an
impartial mind to bear on the adjudication of the case, that is a
mind open to persuasion
by the evidence and the submissions of
counsel”.
[13] As there was no application for
the recusal of the magistrate and he himself did not indicate grounds
on which he may be found
to have been biased, it is not at this stage
necessary to further investigate whether there were indeed grounds
for recusal. The
magistrate’s decision to mero motu recuse
himself was not only unnecessary, but irregular and should be set
aside.
[14] The magistrate acted incorrectly
in suspending the proceedings and sending it for review. One would
have expected the magistrate
to have indicated to the defence
attorney that it would be inappropriate to appeal against the
conviction before sentence has been
imposed. The magistrate should
have proceeded with the sentencing procedures and thereafter
adjudicated the Accused’s application
for leave to appeal (if
such an application was indeed brought).
[15] There are no grounds on which the
conviction of the Accused or the proceedings leading up to that
conviction should be further
investigated at this point in time.
There are no grounds for setting the Accused’s convictions
aside at this stage. Any injustice
that may have occurred as a result
of the magistrate’s actions in having the matter reviewed is in
itself not such as to
result in the setting aside of the convictions.
[16] The matter stands to be remitted
to the trial court for the completion of sentencing procedures. In
the light thereof that
the trial magistrate’s decision to
recuse himself is to be set aside, there is no reason why he should
not proceed with the
sentencing of the Accused.
[17] Lastly, the conduct of the defence
attorney calls for comment. He acted improperly in requesting a
postponement for purposes
of preparing an application for leave to
appeal before sentence was imposed on the Accused. This may have been
due to inexperience
or as a result of overzealousness. Whatever the
reason, it was improper to indicate a desire to appeal against the
convictions
before the sentencing procedures have been concluded.
Regardless of his instructions at the time, it was expected of the
attorney,
as an officer of the court, to proceed with the sentencing
process in a proper and diligent manner. And against the background
of this judgment, it is still so expected of him.
ORDER
[18] In the result the following orders
are made:
1. The request for a review of the
proceedings before the imposition of sentence is declined;
2. The convictions of the Accused
stand;
3. The decision of the trial magistrate
to recuse himself is set aside;
4. The trial magistrate is directed to
continue with the sentencing proceedings up to and including the
sentencing of the Accused.
G.J.M. WRIGHT, AJ
M.H. RAMPAI, J