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[2014] ZAFSHC 123
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S v Lekaota and Another (135/2014(B)) [2014] ZAFSHC 123 (14 August 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.: 135/2014(B)
In
the review between:
THE
STATE
versus
KEDIBONE
JUEKA LEKAOTA
….......................................................................................
Accused
1
MAMIKI
GLORIA SESEDI
…...............................................................................................
Accused
2
CORAM:
KRUGER, J
et
WRIGHT,
AJ
JUDGMENT
BY:
WRIGHT, AJ
DELIVERED
ON:
14 AUGUST 2014
[1]
This matter comes before the High Court on special review. Accused 1
and Accused 2 stood trial in the Hoopstad magistrate’s
court on
one count of assault with the intent to do grievous bodily harm.
Another person, Shimanyana Piet Dinre, was similarly
charged, but the
case against him was withdrawn. There is no need to further refer to
Mr Dinre.
[2]
On 14 May 2014 the case was called before magistrate S.S. Mmushi. The
prosecutor indicated that investigations are complete
and that the
matter can in due course be set down for trial. Both accused appeared
in person, after previously indicating their
decision not to appoint
a legal representative.
[3]
The magistrate proceeded to enquire from the accused as to what plea
they intend to offer. Both indicated that they intended
pleading
guilty. Hereafter the prosecutor indicated that he accepts the plea
and that section 112(1)(a) of the Criminal Procedure
Act is
applicable as “it is not so serious”. The magistrate then
gave a judgment comprising of one sentence only, namely
“. . .
both accused 1 and 2 you are hereby found guilty as charged of common
assault”.
[4]
The procedure followed by the magistrate thus far into the
proceedings contains at least the following irregularities:
(i) The charge was
never put to the accused (as provided for in section 105 of the
Criminal Procedure Act);
(ii) The charge was
not explained to the accused in any way, this notwithstanding the
fact that it should have been explained in
an adequate and reasonably
comprehensible manner to the unrepresented accused (See
R
v Mohapi
1954 (1) SA 573
(O);
(iii) Even though
they were charged with assault with the intention to commit grievous
bodily harm, they were convicted of common
assault, but as if they
had indeed been charged with common assault;
(iv)
The magistrate did not give any reasons for his decision to deviate
from the charge contained in the charge sheet.
[5]
After finding the accused guilty, the magistrate disposed with the
sentencing procedures by asking only one question, namely:
“Are
you suppose to pay a fine?” It is not clear which of the two
accused then responded with “On Friday”.
Thereafter the
magistrate immediately proceeded with his sentencing judgment. This
“judgment” only comprised of the
actual sentence that the
magistrate imposed. The accused were sentenced to a fine of R200,00
or one month imprisonment (wholly
suspended for a period of 12
months).
[6]
In regard to sentencing the magistrate committed the following
irregularities:
(i) No reasons were
provided for the actual sentence imposed;
(ii) He did not
assist the accused in placing relevant facts and circumstances before
the court so as to be able to decide on the
appropriate sentence.
(See
S v Dlamini
1991 (2) SACR 655
(A) at 666 h –
667 f.)
(iii)
The accused were not asked if they wish to say anything regarding
sentence. (See
S v Bresler
1967 (2) SA 451
(A) at 456 E – G.)
[7]
In performing his duties it is imperative that a presiding officer
should see to it that justice is done. This is even more
so in cases
where the accused have to get along without legal representation. The
Constitution contains the all-embracing injunction
that a criminal
trial must be fair. (See also
S v
Ntuli
1996 (1) SA 1207
(CC).)
[8]
The magistrate failed to ensure that the procedural rights of the
accused were complied with. The irregularities committed by
the
magistrate constitute such gross departure from the settled
procedural rules of elementary justice that no proper trial took
place.
[9]
In the result the following order is made:
1.
The convictions and sentences of both accused are set aside.
________________
G.J.M. WRIGHT, AJ
I
concur.
____________
A.
KRUGER, J