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[2015] ZAFSHC 226
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S v Mokhati (158/2015) [2015] ZAFSHC 226 (18 November 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE PROVINCIAL DIVISION
Review Number: 158/2015
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
Criminal
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 al,
Commentary
on the
Criminal Procedure
Act,
section
112, 2015:
Hiemstra's Criminal
Procedure,
section 112.)
c)
Added to the above, the definition of 'dealing' 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 play 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." 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 kids', does not fit the facts of
this case. In
S v
lmmelman
1978 (3) SA 726
(A) at 7298-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
Dyk
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