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[2015] ZAECBHC 29
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S v Feni (A1794/2010; 24/15) [2015] ZAECBHC 29; 2016 (2) SACR 581 (ECB) (15 September 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE LOCAL
DIVISION, BHISHO)
REVIEW CASE NO:
A1794/2010
HIGH
COURT CASE NO: 24/ 15
In the matter between
THE STATE
versus
DALUHLANGA FENI
REVIEW JUDGMENT
MBENENGE J
[1]
The accused was charged with and convicted of housebreaking with
intent to steal and theft by
the Magistrate for the District of
Zwelitsha. He pleaded not guilty to the charge. The trial
proceeded. He was
found guilty and thereupon sentenced to
undergo two years imprisonment, on 6 December 2012. The
proceedings had been conducted
and recorded in isiXhosa which appears
to have been the mother tongue of the presiding officer and all the
parties in the case.
[2]
In terms of section 303 of the Criminal Procedure Act 51 of 1977 (the
CPA) the record of the relevant
proceedings ought to have been
submitted by the Clerk of the Magistrate’s Court, Zwelitsha to
the Registrar of this Court
within one week after 6 December 2012.
[3]
The record was received by the Registrar on 24 July 2015, more than
two and half years from the
date the accused was sentenced and
approximately more than six months after the accused had completed
serving his sentence.
[4]
When the matter was dealt with on automatic review, the Magistrate
was queried as follows:
“
1.
The accused was sentenced by the Magistrate, Zwelitsha to undergo 2
years imprisonment on
6 December 2012. In terms of the
Criminal
Procedure Act 51 of 1977
the record of the relevant proceedings
should have been transmitted by the Clerk of the Magistrate’s
Court, Zwelitsha within
one week after the date on which the accused
was sentenced.
2.
The record of the proceedings in this matter was received by the
Registrar, Bhisho
High Court on 24 July 2015.
3.
There has clearly been an ordinate delay in transmitting the record‒
3.1
After the expiry of more than two and-a-half years the accused was
sentenced; and
3.2
more than 6 months after accused had completed serving his term of
imprisonment
4.
The Magistrate is called upon to account for the delay. In his
response
the Magistrate should have regard to
S v VC
2013 (2)
SACR (KZP) at [2].
5.
What informed the decision to conduct the proceedings in isiXhosa,
and not in
English?”
[5]
In his reply the Magistrate states that the accused was sentenced to
undergo three years imprisonment
on “
each count
”
and that the term of imprisonment was not ordered to run
concurrently. He further states that the record was submitted
6
months after of the imposition of the sentence. The delay,
according to the Magistrate, was occasioned by the paucity of
sworn
indigenous translators, hence it took time before the services of a
translator could be engaged and the record transcribed.
The
reason proffered for conducting the proceedings in isiXhosa is the
“
campaign that Government embarked on in October/November
2008 through pilot projects to promote the use of indigenous
languages
in the country’s courts called indigenous language
courts.
”
[6]
This is a classic case of an accused’s fundamental rights of
automatic review, including
the right to have proceedings reappraised
by a judge speedily, having been compromised by administrative
incompetency.
[1]
[7]
I am mindful of the efforts that have been made by the government to
promote the use of indigenous
languages in courts with a view to
giving expression to section 35(3)(k) of the Constitution.
[2]
It does not appear that those efforts have been
successful principally due to the challenges associated therewith.
These challenges were stated by Ndlovu J in
S
v Damani
[3]
as being:
“
Difficulty
experienced by a presiding magistrate, prosecutor, defence attorney
in articulating legal terminology in IsiZulu, including
quotation
from statutes and legal precedents.
Translation into isiZulu
of court annexures, roneo forms and statements in police dockets.
Difficulty for the
transcribers in preparing court records for review or appeal
purposes, hence undue delay caused in this regard
Different isiZulu
dialects occasionally posed problems to court officials and
litigants, despite all of them being, otherwise, Zulu-speaking.”
[8]
The challenges adumbrated above apply with equal force in the case of
isiXhosa. The Magistrate
refers to pilot projects embarked on
during the latter part of the year 2008 and seems to be oblivious to
subsequent developments
on the subject. Ndlovu J
[4]
refers to recommendations made by the Sub-committee: Legislation
on Indigenous Language Courts pursuant to a meeting
held during
September 2014. The Sub-committee is on record
[5]
as having reported on 19 September 2014 as follows:
“
That
Executive Committee of the Chief Magistrates Forum must seek the
guidance of the Chief Justice on the Language Policy as regards
the
Magistrates Courts.
That the Executive
Committee of the Chief Magistrates Forum must establish, through the
Office of the Chief Justice, as to whether
the Department of Justice
and Constitutional Development has ensured that there are proper
structures to adequately and timeously
transcribe and translate
proceedings recorded in any of the nine indigenous languages into
English.
That the Chief
Magistrates Forum in the meantime to do an audit of indigenous
languages predominantly in use within Administrative
Regions, in
order to assist the National Department responsible for language
policy in determining the most used languages within
specific
clusters and/or subcommittee, for purposes of service level
agreements with service providers of translation services.
That the Chief
Magistrates Forum must support the use
of
indigenous languages
in any courtroom for any proceedings, as long as it is practical to
do so.
That the Chief
Magistrates Forum must inform Mr Dawood that the Forum would not, for
reasons specified in the report, support the
idea of ‘
indigenous
language courts’
, but that it would take practical steps
and positive measures to elevate the status and advance the use of
languages with historically
diminished use and status in all the
courts of the Republic of South Africa.”
[9]
It is quite plain that the government is still engaged in
coordinating the process of elevating
indigenous languages for use in
courts. The process has not reached the stage where it
could be said indigenous languages
should be used in Courts even when
the exigencies of a matter did not demand such use. The
explanation for the delay given
by the Magistrate is far from
convincing. Nothing is said, for instance, that an interpreter
who could have interpreted from
isiXhosa to English, and vice versa,
was not available during the proceedings under review.
[6]
The way in which the proceedings were conducted has resulted in an
inexplicable, inordinate delay, rendering justice a mockery.
[10] As
to the sentence imposed by the Magistrate the record reads:
“
Wena
ke awusengomntu ufanel’uba phakathi koluntu, ufanel’uba
usiwe phaya entolongweni. Yilonto nale Nkundla ke
iza wuthi
ikuthi uye phaya
IMINYAK’EMIBINI
ENTOLONGWENI (TO UNDERGO 2 YEARS IMPRISONMENT
)
.”
[11]
The transcribed record clearly does not lend support to the
Magistrate’s reference to “
three years imprisonment on
each count
” as having been the sentence he imposed.
Therefore, the matter falls to be dealt with on the basis that the
accused
was sentenced to undergo 2 years imprisonment. There
having been nothing pointing to the contrary, the imprisonment
sentence
related to both counts which were treated as one for
purposes of sentence.
[12]
But for what is stated above and having considered the merits of the
instant review, the proceedings are
hereby certified as having been
in accordance with justice.
[13]
The Registrar of this Court is directed to forward a copy of this
judgment to the-
13.1
Office of the Chief Justice; and
13.2
Office of the Director of Public Prosecutions, Bhisho.
S M MBENENGE
JUDGE OF THE HIGH
COURT
15
September 2015
I agree
G GOOSEN
JUDGE OF THE HIGH
COURT
[1]
S
v VC
2013
(2) SACR 146
(KZP) at 148, especially para 5, where Steyn J referred
to the following rationale for the expeditious transmission of
review
records as stated in
S
v Manyonyo
1997
(1) SACR 298
(E):
‘
The
reason for the statutory insistence on the expeditious despatch of
records on review is generally to provide the speedy and
efficient
administration of justice, but in particular
to
ensure that an accused is not detained unnecessarily
in cases where the court of review sets aside the conviction or
reduces the sentence. (My emphasis
.)’
[2]
The
section
gives every accused person the “
right
to a fair trial, which includes the right to be tried in a language
that the accused person understands or, if that is not
practicable,
to have the proceedings interpreted in that language.”
[3]
[2014]
ZAKZPHC 60 (9 December 2014).
[4]
In
S
v VC supra
.
[5]
Id
at para [19].
[6]
This
course was held to be justified in such circumstances in
S
v Matomela
1998
(3) BCLR 339
(Ck).