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[2014] ZAFSHC 62
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S v Yawa (55/2014) [2014] ZAFSHC 62 (12 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Special
Review No. : 55/2014
In
the special review between:-
THE
STATE
versus
ZAKHENI
YAWA
CORAM:
VAN ZYL, J
et
DAFFUE,
J
JUDGEMENT
BY:
VAN ZYL , J
DELIVERED
ON:
12 MAY 2014
[1]
This is a special review in accordance with the provisions of section
304(4) of the Criminal Procedure Act, 51 of 1977 (“the
Act”).
[2]
Mr S.F. Ferreira, the Senior Magistrate, Welkom, set out the relevant
facts in a clearly written, detailed letter addressed
to the Acting
Judge President of this Court. I therefore deem it apposite to
quote from the contents of the said letter when
dealing with the
different aspects of this matter.
BACKGROUND:
[3]
The following background is set out in the said letter:
“
The
above-mentioned accused was convicted during an enquiry in terms of
Section 170
(2) of the
Criminal Procedure Act, Act
51 of 1977, into
his failure to appear at one of the district courts on 20 November
2013. The accused was then cautioned and discharged.
On
14 January 2014 the accused paid an admission of guilt fine on the
main charge of contravening section 2(1) of the Dangerous
Weapons
Act, Act 71 of 1968.
The
matter was brought under my attention after a complaint was received
about the manner in which the magistrate had conducted
the enquiry.
The case record was transcribed and a copy was handed to the
presiding officer who had disposed of the enquiry. She
was asked to
comment on:
a)
Whether the accused was properly informed
of his rights before commencing with the enquiry.
b)
The manner in which the enquiry was done.
The rnagistrate fell
ill afterwards and eventually declined to give any further comment.”
THE
SECTION 170(2) ENQUIRY:
[4]
With regards to the enquiry in terms of Section 170(2) of the Act,
the following facts are correctly stated in the letter of
Mr
Ferreira:
“
EXPLANATION
OF ACCUSED RIGHTS
On
29 October 2013 the accused was informed of his right to legal
representation upon his first appearance and elected to apply
for
legal aid, which was granted. The case was remanded to 19 November
2013 for trial. On 19 November 2013 the accused failed to
appear at
court and the legal aid attorney requested to withdraw from record. A
warrant was authorized for the accused's arrest.
The accused
subsequently appeared the next day and his right to legal
representation according to the case record was explained
as follows:
'Right
explained for warrant arrest enquiry-accused elect own defence.’
However
when perusing the transcription, which is attached, I could not find
that the accused's right to legal representation was
explained to him
again and that he elected to proceed in person. It will be apparent
from the recording that the recording commenced
from the time the
court started in the morning. The applicable part of the proceedings
commences on line 14 of page 7 of the transcription.”
For
the sake of clarity, I may mention that the alleged explanation to
the accused pertaining to his right to legal representation
on 20
November 2014 as quoted above by the learned Magistrate, is only
reflected in the handwritten part of the case record. It
is not
reflected in the transcription of the record despite the fact that,
as again correctly pointed out by Mr Ferreira, the transcription
clearly covers the totality of the day’s proceedings in court.
The
letter then continues:
‘
The
following explanation was then given to accused (line 17): ‘lf
I find that your failure to appear was due to your own
fault, I am
going to fine you or alternatively send you to three months
imprisonment. The test is simple; the test is whose fault
is it that
you failed to appear here in court. You have the right to call
witnesses. You and your witnesses will be subject to
cross-examination. You can convince the court or prove to the court
that your failure to appear was not due to your own fault by
testifying under oath, alternatively bringing an affidavit, which is
also a statement under oath. You also have a right to remain
silent.’
The
accused thereafter chose to testify under oath.
Case
law
:
The
constitutionality of the onus placed on an accused person was
discussed in the case of:
S v Singo
[2002] ZACC 10
;
2002
(2) SACR 160
(CC)
. The court found that
the reverse onus was inconsistent with the right to be presumed
innocent and that an accused person merely
has to satisfy the court
that there is a reasonable possibility that his failure was not due
to fault on his/her part.
The
procedure to be followed by a magistrate in conducting such an
enquiry is discussed in length by the learned Judge in paragraph
11
to 13 of the judgment. From this it transpired that the magistrate
had failed to inform the accused that prima facie the proceedings
indicate that he was warned to appear at a certain time and date and
that he had failed to appear and to challenge the prima facie
evidence, not to give self-incriminating evidence and what the
consequences of remaining silent will be. It was also not explained
to the accused that he only has to satisfy the court that there is a
reasonable possibility that his failure was not due to fault
on his
part.
FAIRNESS
OF THE PROCEDURE:
The
fairness and impartiality in which to conduct the enquiry is also
discussed in length by the learned Judge in paragraph 13 of
the
judgement. The learned Judge remarked as follows:
‘
The
enquiry must be conducted in a fair and impartial manner. As part of
the enquiry, the presiding officer must establish from
the accused
whether he or she disputes the fact that he or she was duly warned,
giving the details of the warning as recorded,
and that he or she has
failed to comply with the warning. If the accused does not dispute
the two basic facts, the presiding officer
must then establish from
the accused the reason for his failure to appear in court. Fairness
requires the presiding officer to
assist an undefended accused to
explain his or her failure to appear in court by putting questions to
the accused. By its very
nature, the enquiry envisaged in section
72(4) appears to contemplate that the presiding officer will play an
active role in such
enquiry by putting questions to the accused. The
objective of such questions is to elicit the explanation, if any, for
failure
to appear in court.
Provided
that the questioning is conducted in a fair and impartial manner,
this will help an undefended accused to put forward the
reason for
his or her failure to appear in court.
’
It
is regrettable to note that this was not done. The questioning by the
magistrate commences on page 11 paragraph 15 and led up
until page 18
paragraph 5. The record speaks for itself and the side remarks made
cannot be condoned. lt is therefore doubtful
whether the enquiry was
done in an impartial manner.
…
The
learned Judge is hereby respectfully requested and without being
prescriptive to set aside the conviction and sentence on contravening
Section 170(2) of Act 51 of 1977…”
[5]
I am in total agreement with Mr Ferreira’s very competent
exposition of the relevant facts as well as the applicable legal
principles, as well as his inferences drawn therefrom.
[6]
The manner in which the presiding Magistrate dealt with the aforesaid
enquiry is, to say the least, shocking, totally unacceptable
and
constitutes a travesty of justice. Her subjective, sarcastic and
irrelevant remarks throughout the enquiry are uncalled for
and
improper and such conduct is unbecoming of any presiding officer in a
court of law.
[7]
The lack of impartiality on the side of the presiding Magistrate and
the unfair manner in which the enquiry was conducted, have
the result
that the proceedings were not in accordance with justice. It should
therefore be set aside. The accused’s right
to a fair enquiry
has in my view been tainted to the extent that it cannot even be
corrected by starting the enquiry
de
novo.
PAYMENT
OF THE ADMISSION OF GUILT:
[8]
The letter of Mr Ferreira details the relevant circumstances
regarding this issue as follows:
“
2)
PAYMENT OF ADMISSION OF GUILT
The
amount of R50-00 admission of guilt was fixed by the prosecutor on 14
January 2014 which the accused subsequently paid on the
same day. The
admission of guilt was fixed for an offence of being in possession of
a dangerous weapon in terms of section 2(1)
of the Dangerous Weapons
Act, Act 71 of 1968. This act was however repealed on 2 January 2014
and substituted with Act 15 of 2013.
Another magistrate confirmed the
admission of guilt in terms of section 57(7) of Act 51 of 1977,
although it was not noted on the
control document but indeed on the
admission of guilt classification report.
In
terms of section 2(1) of Act 71 of 1968 the onus of proving absence
of unlawfulness rests on the accused who must prove '
that
he at no time had any intention of using such weapon or object for
any unlawful purpose....
'
Section
3(1) of Act 15 of 2013 stipulates that
'any
person who is in possession of any dangerous weapon under
circumstances which may raise a reasonable suspicion that the person
intends to use the dangerous weapon for any unlawful purpose....’
In
S v Magwaza
1976 (4) SA 281
(N)
the court decided that it becomes important to ensure that the
accused is adequately warned that he is entitled to an acquittal
if
he can show absence of unlawful purpose. Many accused plead guilty or
admits guilt notwithstanding absence of intention to use
the weapon
for any unlawful purpose. Upon payment of admission of guilt the
accused person was not accordingly informed. It appears
in terms of
the new act that an accused person should also be informed that the
state must prove that there are circumstances which
may raise a
reasonable suspicion that he/she intends to use the dangerous weapon
for an unlawful purpose. Guidance is however sought
as to whether it
is appropriate to fix an amount of admission of guilt for an offence
committed in contravention of the new act.
The
learned Judge is hereby respectfully requested and without being
prescriptive … to set aside the confirmation of the
admission
of guilt in terms of section 57(7) of Act 51 of 1977 and to order
that the amount of R50 be paid back to the deponent.”
[9]
It is evident from the charge sheet that the accused was charged with
having been in possession of the relevant dangerous weapon
on or
about 19 October 2013, at which date Act 71 of 1968 was still in
force. However, the confirmation of the admission of guilt
should
still be set aside as it appears that the accused was not warned that
he is entitled to an acquittal if he can show absence
of an unlawful
purpose.
[10]
Mr Ferreira is correct in pointing out that Act 15 of 2013 also
contains provisions which necessitates that the state will
have to
prove the circumstances which raise a reasonable suspicion that the
accused
intended to use the object as a
dangerous weapon for an unlawful purpose. In this regard Section 3(2)
determines as follows:
“
(2)
In determining whether a person intends to use the object as a
dangerous weapon for an unlawful purpose, all relevant factors,
including but not limited to, the following must be taken into
account:
(a)
The place and time where the person is
found;
(b)
the behaviour of the person, including
the making of any threat or the display of intimidatory behaviour;
(c)
the manner in which the object is
carried or displayed;
(d)
whether
the possession of the object was within the context of drug dealing,
gang association or any organised crime or any other
criminal
activity; or
(e)
any
other relevant factors, including any explanation the person may wish
to provide for his or her possession of the object: Provided
that
this paragraph shall not be interpreted as an obligation on the
person to explain his or her possession of the object.
[11]
It consequently appears that the principles enunciated in
S v
Magwaza
will probably be
mutatis mutandis
applicable to
the new act. I however suggest that the issue pertaining to the
appropriateness of fixing an amount of admission of
guilt for an
offence committed in terms of the new act be referred by the learned
Senior Magistrate to the Director of Public Prosecutions.
ORDER:
[12]
I consequently make the following order:
1.
The conviction and sentence on contravening Section 170(2) of Act 51
of 1977 are set aside and the accused is acquitted.
2.
The conviction and the confirmation of the payment of the admission
of guilt fine on a charge of contravening Section 2(1) of
the (now
repealed) Dangerous Weapons Act, 71 of 1968, are set aside and it is
ordered that the fine in the amount of R50.00
forthwith be paid
back to the accused.
____________
C.
VAN ZYL, J
I
concur.
_____________
J.P.
DAFFUE, J