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[2015] ZAFSHC 224
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S v Mokhati (158/2015) [2015] ZAFSHC 224 (18 November 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE PROVINCIAL
DIVISION
Review Number: 158/2015
DATE: 18 NOVEMBER 2015
In the review between
THE STATE
And
NTEBELANG AMELIA MOKHATI
CORAM: JORDAAN, J et OPPERMAN, AJ
DELIVERED: 18 NOVEMBER 2015
[1] On 28 July 2015 the accused was
arrested for the illegal dealing in 16, 40 kilograms of dagga in
contravention of the
Drugs and Drug Trafficking Act 140 of 1992
. She
appeared before court the next day, was convicted after a plea of
guilty in terms of
section 112(1
)(b) of the Criminai Procedure Act
51 of 1977 and sentenced.
[2] The sentence of R3000-00 or 12
months imprisonment and an additional 18 months imprisonment which
was wholly suspended, brings
the matter on review.
[3] As on the 12th of August 2015, the
date the review was submitted to the High Court, the accused was in
custody and had therefore
not been able to pay the fine.
[4] The then Judge of Review returned
the matter to the Magistrate with the following observations:
“1. it appears that the accused
alleged that a 3rd person asked her to fetch and deliver the dagga to
her for which services
she would be paid a R1000-00.
In view of that:
a) On what basis was the court
satisfied that she knew that what she was doing may amount to dealing
in dagga?
b) On what basis was the court
satisfied that she was indeed aware of the fact that what she was
doing may amount to unlawful dealing
in dagga?
2. It should appear from the record
that the accused rights to legal representation have been explained.
A mere note by the presiding
officer that it has been done is
insufficient.
3. In regards to the sentence it
appears that the accused earned some income from doing piece jobs.
Why was the average amount of
monthly income not ascertained
especially in view of her ability to pay a fine?”
[5] The response of the Magistrate did
not resolve the concerns of the reviewing Judge. It reads as follows:
“1. The accused was asked by
another lady to fetch dagga from Zone 2 and was promised R1000-00 as
payment. No 3rd person involved.
a) The court was satisfied that she
knew that what she was doing may amount to dealing because she
fetched the dagga and was to
leave the dagga in Bloemfontein. She was
going to transport dagga.
b) The accused admitted that her
actions were unlawful and she knew that it is an offence to be
dealing in dagga.
2. The accused rights to legal
representation were explained before the case went on record. The
Magistrate erred for not explaining
again for record.
3. It was an oversight for the
Magistrate not to ascertain the average amount of monthly income.
The case is referred back to the
Honourable Judge for your direction and further comments.”
[6] Review of the proceedings brings
issues of fair trial and procedural flaws to the fore.
a) The record does not reflect the
rights to legal representation that were explained to the accused.
b) The court a quo did not explain the
provisions of section 112(1 )(b) of the CPA properly. The questioning
in terms of the section
does not comply with principles fixed in
precedent. The sum total of the explanation is:
“The Court is going to ask you
some questions to determine whether you are pleading guilty correctly
. .
The law is clear on this issue and much
have been declared in courts and academic research. This judgement
will not repeat it. (2015:
Du Toit et a/, Commentary on the Criminal
Procedure Act, section 112, 2015: Hiemstra’s Criminal
Procedure, section 112.)
c) Added to the above, the definition
of ‘dealing1 in terms of the
Drugs and Drug Trafficking Act 140
of 1992
was not explained to the undefended accused. It cannot be
presumed that an accused knows that to carry dagga from one location
to another implies dealing in drugs in terms of the law.
d) The questioning consisted of the
following: "Do you also confirm that, do you know that dagga is
an undesirable dependence
producing substance?” The accused is
an uneducated lady that does laundry for a living. It should never
have been assumed
that she knows the meaning of “an
undesirable dependence producing substance.”
e) The court did not obtain good and
sufficient information before sentence. The financial circumstances
of the accused were not
established. The accused did not pay the
fine. The fine may not be just. The statement of the Supreme Court of
Appeals in S v Samuels
2011 (1) 9 (SCA) at [8] that sentencing is a
judicial function sui generis, is supported.
“In this field of law, public
interest requires the court to piay a more active, inquisitorial
role. The accused should not
be sentenced unless and until all the
facts and circumstances necessary for the responsible exercise of
such discretion have been
placed before the court.”
f) Some of the evidence that was
obtained was not considered. For instance, the accused informed that
she has two children of 5
and 2 years old respectively. She added:
“They are supported by me, Your Worship and right now they are
left with my mother
who is sick, Your Worship with stroke.11 The best
interest of the child-principle in terms of section 28(2) of the
Constitution
of the Republic of South Africa, 1996 (the Constitution)
should have been, at the least, explored and contemplated.
g) The judgment on sentence was rushed.
It lacks substance. The declaration that: ‘dealers do not
discriminate to whom they
sell dagga, they even sell it to young
kids5, does not fit the facts of this case. In S v Immelman
1978 (3)
SA 726
(A) at 729B-D the following was said in respect of sentence:
‘It seems to me that, with regard
to the sentence of the Court in cases where the trial Judge enjoys a
discretion, a statement
of the reasons which move him to impose the
sentence which he does, also serves the interests of justice. The
absence of such reasons
may operate unfairly, as against both the
accused person and the State. One of the various
problems which may be occasioned in the
Court of Appeal by the absence of reasons is that in a case where
there has been a plea
of guilty but evidence has been led, there may
be no indication as to how the Court resolved issues of fact thrown
up by the evidence
or on what factual basis the Court approached the
question of sentence.
h) The inquiry in terms of
section 103
of the
Firearms Control Act 60 of 2000
was not conducted at the
correct stage of the proceedings and reasons were not given for the
finding. The court’s determination
as to fitness should not be
made separately before sentencing as the information relevant to such
fitness may emerge during the
investigation into mitigating
circumstances. S v Van Dvk
1991 (2) SACR 48
(W) and S v Phuroe
1991
(2) SACR 384
(NC). The sentence may determine the applicable law. A
formal inquiry must be conducted after sentence with resultant
judgement.
S v Smith
2006 (1) SACR 307
(W).
i) The rights to appeal, application
for leave to appeal and review were also not explained properly. The
record speaks for itself.
[7] The right to a fair trial is
stipulated in section 35(3) of the Constitution. The first and
foremost principle in a criminal
trial is that the procedure should
be adversarial and each party must fully participate in the
proceedings. Participation involves
real insight and understanding of
the law. It is trite that undefended accused must be informed of the
relevant law and the record
must reflect the explanations; the
explanations must be all-inclusive and clear. This is elementary
justice and due process; the
cornerstone of the fair trial-principle.
[8] Section 4(1) of the Magistrates
Court Act 32 of 1944 states that: “Every court shall be a court
of record.” A fair
trial cannot ensue without records. Records,
and the information they contain, are a valuable asset in a
democratic society and
the judicial system. Records provide essential
evidence as to whether justice was served. Without reliable records,
justice cannot
be administered. The lack of veracity of presiding
officers to keep proper records in court proceedings is inexcusable
and irregular.
[9] In S v Filani
2012 (1) SACR 508
(ECG) on 516 it was pointed out that judicial officers are human:
they all make mistakes of law and fact from time to time hence
the
necessity for appeal courts. Lately and in this case it must be added
to the above that the possible duress for statistical
targets and the
preponderance of certain crimes may not upset the independence and
accountability of the presiding officer. Justice
must be served
without fear, favour or prejudice.
[10] There is a minimum non-negotiable
standard. The least that can be expected of the presiding officers is
that they apply themselves
diligently and conscientiously to the
cases before them, conscious at all times of their weighty
responsibility to administer justice
fairly to both the State and the
accused who appear before them.
[11] The principles that was set out in
S v Kester
1996 (1) SACR 461
(B) must be common practise in courts of
law in South Africa.
“(1) The record must indicate and
prove, where an unrepresented accused is involved in a criminal
trial, whether or not his/her
rights were explained to him/her in a
proper manner, and that he/she understood the position.
(2) When explaining the position, a
Magistrate should sedulously inform the accused and confirm that the
accused understands that
he/she is entitled in an appropriate case,
to close his/her case without leading any evidence or to apply for
his/her discharge.
(3) It is a salutary practice that the
explanation of the rights of the accused by the presiding officer
should appear on the record
with adequate and satisfactory
particularity to enable a judgment to be made on the adequacy
thereof.
(4) The aforesaid duty resting upon a
Magistrate cannot and should not be delegated. It is the duty of the
Magistrate.
(5) If roneod forms are used, care
should be taken to ensure that the said forms contain all the
necessary explanations, together
with the import thereof. In some
cases, an accused has to be informed of special defences and
presumptions. The court must also
be alerted to, and cognizant of the
fact, that the circumstances of a case may require that more be
explained to an accused by
the Magistrate than what is contained in
the said roneod form.
(6) Generally, a presiding officer
should assist an unrepresented accused in the conduct of his case,
and must strive to ensure
that the said accused is at ease and is
able to present his case to the best of his ability. Mere lip service
to the duty will
not suffice.” (Emphasis added)
[12] Not all irregularities are fatal
and will lead to the setting aside of the proceedings. Dealing with
automatic review does
not require the Judge to certify that the
proceedings are in accordance with law but in accordance with
justice. S v Ndlovu
1998 (1) SACR 599
(WLD) on 601.
[13] In this matter there was a
complete failure of justice per se. The principles declared in Key v
Attorney-general, Cape Provincial
Division and another
[1996] ZACC 25
;
1996 (4) SA
187
(CC) at
[13]
is applicable here. The Constitution demands that
the accused be given a fair trial. This does not mean sympathy for
crime and
its perpetrators. Nor does it mean a predilection for
technical niceties and ingenious stratagems; it simply requires that
justice
be done.
[14] It is ordered that the conviction
and sentence be set aside.
M. OPPERMAN, AJ
I concur
A.F. JORDAAN, J