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[2015] ZAFSHC 83
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S v Mababso (50/2015) [2015] ZAFSHC 83 (23 April 2015)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Supreme
Court No. 50/2015
In
the matter:
THE
STATE
and
VUZIWA
MABABSO
...............................................................................................................
Accused
CORAM:
LEKALE,
J
et
MIA, AJ
JUDGMENT:
MIA,
AJ
DELIVERED
ON:
23
APRIL 2015
[1]
This matter comes before us on review in the normal course in terms
of
section 302
of the
Criminal Procedure Act 51 of 1977
from the
Magistrate, Ladybrand. The accused was charged with possession of
10.1kg of dagga and convicted. The sentence imposed
was three
thousand rands or six months imprisonment. The accused was not
declared unfit to possess a firearm in terms of
section 103
of the
Firearms Control Act 60 of 2000
. The dagga was declared forfeited to
the State.
[2]
Upon perusing the record it is evident that the accused was arrested
on the 16 February 2015 and appeared on the 17 February
2015. Her
right to legal representation was explained and the question was
posed, “Do you want legal aid?”. The record
reflects that
she replied “YES” in response to the question. The record
reflects further that it was “REFERRED
TO LEGAL AID OFFICER”
as was appropriate to do under the circumstances. However the record
is unclear with regard to the
further proceedings in court and it
appears the matter was postponed to 19 February 2015. The Magistrate
made use of a preprinted
form with predetermined options, presumably
to expedite proceedings. This created confusion in the record as the
options not applicable
to the proceedings under paragraph 3 have not
been deleted and the record reads as follows:
“
REMAND
(where bail application as stated in 4 below is not held).
ACCUSED
IN CUSTODY.
This
case is postponed to 19/2/2015 Court:
·
Legal
Aid/Attorney
·
Further
Investigation
·
Plea
and Trial
·
Accused
warned for 08:30(Bail extended)
·
Accused
in custody-section 50(6) Act 51/1977
·
Accused
in custody of guardian
·
Accused
warned for 08:30
·
OR
·
For
finalization see J15. Mechanical Recording”
[3]
It is not evident from the record that the question of bail was
addressed on the first appearance or at all.
Section 60
of the
Criminal Procedure Act 51 of 1977
provides:
“
60(1)(a) An accused
who is in custody in respect of an offence
shall
,
subject to the provisions of
section 50(6)
be entitled to be released
on bail at any stage preceding his or her conviction in respect of
such offence, if the court is satisfied
that the interests of justice
so permit.
…
.
(c
) If the question of the possible release of the accused on bail is
not raised by the accused or the prosecutor, the court shall
ascertain from the accused whether he or she wishes that question to
be considered by the court
.”
( my emphasis)
[4]
The Constitution of the Republic of South Africa Act 108 of 1996 (the
Constitution) provides in section 35 that:
“
35
(1) Everyone who is arrested for allegedly committing an offence has
the right—
(a)…
…
..
(
e
)
at the first court appearance after being arrested, to be charged or
to be informed of the reason for the detention to continue,
or to be
released; and
(
f)
to be released from detention if the interests of justice permit,
subject to reasonable conditions.
(2)Everyone
who is detained, including every sentenced prisoner, has the right—
(
a
)
to be informed promptly of the reason for being detained;…”
[5]
The record does not reflect that the accused was informed that she
could apply to be released on warning or on bail with conditions
attached if necessary as provided in terms of
section 60(1)(c)
of the
Criminal Procedure Act 51 of 1977
and embodied in section 35 of the
Constitution. She was not informed of her right to be released or the
reason for her continued
detention as required in terms of section 35
of the Constitution.
[6]
A further
first aspect that gives cause for
concern about whether the proceedings were in accordance with justice
is the accused’s right
to be legally represented. It is not
evident from the record why the accused was not legally represented
after she indicated that
she wanted a legal aid attorney. The right
to legal representation is protected in the Constitution in section
35 which provides:
“
35.(2)
Everyone who is detained, including every sentenced prisoner, has the
right—
(
a
)….
(
b
)
to choose, and to consult with, a legal practitioner, and to be
informed of this right promptly;
(
c
)
to have a legal practitioner assigned to the detained person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly;
(3)Every
accused person has a right to a fair trial, which includes the right—
(
a
)
…
(
f
)
to choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
(
g
)
to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly;”
[7]
On
the 19 February 2015 the record indicates the accused appears in
person and the prosecutor informs the Court that the matter
is on the
roll for a plea. It is not apparent what occurred in the interim that
led to the accused appearing in person after the
referral to legal
aid. The reason why the matter proceeded without the assistance of a
Legal Aid attorney is simply not apparent
from the record. The matter
proceeded nonetheless with the accused appearing in person without
her right to legal representation
as provided in section 35 of the
Constitution being given effect to. Both the accused’s rights
to be informed that she may
apply to be released on bail or warning
if the interests of justice so permit and to legal representation
were not given effect
to which events leave no doubt that the
proceedings were not concluded in accordance with justice.
[8]
The accused pleaded guilty to the charge of possession of dagga. In
response to the question whether the accused was aware that
it was an
offence to possess dagga in South Africa, she initially responded
that she was not aware that it was an offence. The
question is
repeated at the request of the accused and she responds in the
affirmative and is convicted.
[9]
The accused is informed that she may give evidence in mitigation and
call witnesses or give evidence from where she stands.
The court
explains:
“
Now
you have been found guilty you have the right to mitigate. You can do
so by giving evidence under oath, you can do so by giving
evidence
where you stand. The difference will be that if you give evidence
under oath and may cross examined by the State and you
have the right
to call witnesses in mitigation of your sentence.”
[10]
There is no explanation that the Court will attach less weight to the
accused’s address from the accused dock as the
information is
not given under oath. The difference between the two forms in which
the accused may place information about their
personal circumstances
before the court is the value attached to the information furnished.
The evidence being given under oath
naturally has more weight
attached to it.
[11]
The personal information which the accused placed before the court in
summary was that she was 23 years old at the time of
the offence, was
not married, she had a minor child aged one year and six months old
and was unemployed. She also appealed for
the Court’s mercy
indicating that she left the minor child with her father who was
sickly. No further questions were put
to the accused to clarify this
aspect of the care of the child. No questions were put to the accused
regarding her ability to source
funds to pay a fine. The record
reflects that the accused was not released, did not pay the fine at
court or at prison.
[12]
Whilst the offence is a serious offence and one that may be prevalent
in the jurisdiction the Court serves, it is trite that
the punishment
must fit the crime and this must take account of all the factors
relevant to sentencing such as the accused’s
personal
circumstances, the offence as well as the interests of the community.
The accused was clearly not in a position to pay
a fine immediately
and this was evident as she informed the Court that she was
unemployed. There was no attempt to ascertain whether
she could
access money to pay the fine or to make an arrangement to pay the
fine in view of her statement that her minor child
was left with her
sickly father.
[13]
The record reflects that after pronouncing the sentence the
magistrate informed the accused that if she was not satisfied with
the conviction and sentence she had a right to appeal within 15 days
from the date of sentence. Once again there was no reference
to Legal
Aid or referral to Legal Aid to assist the accused. The accused’s
response at the conclusion of the proceedings
was:
“
ACCUSED:
Your worship, I would like to ask? I have a comment I would like to
ask something, your worship?”
COURT
ADJOURNS
The
record ends at this point without an indication that the accused was
permitted to address a question which might have been related
to the
proceedings. At this point questions could have related to clarity on
the right of appeal that had been explained, to being
afforded an
opportunity to pay off the fine or to assistance in relation to the
appeal. It is also evident that whilst the accused
was informed of
her right to appeal, she was not informed that the record of the
proceedings would be sent on review and that she
was entitled to
cause written comments to accompany the record.
[14]
It is appreciated that the magistrates’ courts receive many
matters to attend to and that forms may well assist in expediting
matters. However expediency can never yield to the right to apply for
bail, to be informed of this right, to be informed of the
reason for
one’s continued detention, the right to legal representation,
especially where this has been requested by the
accused and the right
to be informed of review proceedings and the opportunity to submit
comments. Expediency can never yield to
the right to have one’s
proceedings conducted in accordance with justice. In view of the
numerous issues highlighted above
I am unable to conclude that the
proceedings were conducted in accordance with justice.
[15]
For the reasons indicated above I propose the following order:
1.
The
conviction and sentence are set aside.
2.
The
accused is to be released forthwith.
_____________
S.C.
MIA, AJ
I
agree and it is so ordered.
______________
L.J.
LEKALE, J