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[2014] ZAFSHC 139
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S v Lephallo (136/2014(B)) [2014] ZAFSHC 139 (4 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review
No.: 136/2014(B)
In
the review between:
THE
STATE
versus
SAM
LEPHALLO
CORAM:
LEKALE, J
et
MBHELE,
AJ
JUDGMENT
BY:
MBHELE, AJ
DELIVERED
ON:
4 SEPTEMBER 2014
[1]
The matter served before us by way of special review in terms of
section 304(4)
of the
Criminal Procedure Act 51 of 1977
. The
accused was convicted of one count of contravening
section 4(b)
of
Drugs and Drug Trafficking Act 140 of 1992 (possession of drugs) and
one count of malicious damage to property. For the
purposes of
sentence, both counts were taken as one. The accused has been
sentenced to R1 500.00 or three months’
imprisonment
suspended for three years on condition he is not convicted of
contravention of Act 140 of 1992 and of malicious damage
to property
committed during the period of suspension.
[2]
The senior magistrate referred the matter for special review with the
request that the conviction and sentence be set aside.
The magistrate
commented as follows:
“
The
accused person was not legally represented. The case record
does not indicate that the accused right to legal representation
was
explained to him, neither is it reflected in the transcription.
Accused was convicted on both counts and sentenced as
follows:
‘
Fine
of R1500 or 3 months imprisonment wholly suspended for period 3 years
on condition accused is not convicted of
contravention
of Act 140 of 1992 and of Malicious damage
to property committed during the period of suspension.’
From
the recording it transpired that on the accused’s second
appearance at court he was called to the accused stand.
The
prosecutor informed the court that the accused “faced”
two charges that of “possession of dagga” and
“malicious
damage to property”. She further requested the court to
find out what the accused intend to plead.
Upon enquiry from
the magistrate, the accused indicated he intends to plead guilty.
The prosecutor requested that the matter
be disposed of in terms of
section 112(1)(a)
of the
Criminal Procedure Act 51 of 1977
.
Accused was then convicted on both counts. At no stage was the
charges ever put to the accused by the State and did
he indicate that
he understood it. The magistrate then sentenced the accused
without granting the accused and the prosecutor
the opportunity to
address the court. A suspended sentence was then imposed.
A number of fundamental constitutional
rights were breached.”
[3]
Having perused the record, I am in agreement with the senior
magistrate on the issues alluded to in the preceding paragraph.
It further appears from the record that the accused was declared
unfit to possess a firearm without an enquiry being held in terms
of
section103 of the
Firearms Control Act 60 of 2000
. The accused
was not asked if he was pleading guilty freely and voluntarily
without being influenced thereto.
[4]
The right to a fair trial is confirmed by section 35(3) of the
Constitution:
“
(3)
Every accused person has a right to a fair trial, which includes the
right-
(a) to be informed
of the charge with sufficient detail to answer it;
(f) to choose, and
be represented by, a legal practitioner, and to be informed of this
right promptly;
(g)
to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice would
otherwise
result, and to be informed of this right promptly;”
[5]
The presiding officer’s failure to ensure that the charge is
put to the accused with sufficient detail constitutes serious
violation to the accused’s right to a fair trial.
[6]
The authors of the work
Hiemstra’s
Criminal Procedure
at 17-3 state the
following when dealing with section 112(1)(a):
“
Whether
the sentence can be a fine of more than R5 000.00 must not be
decided lightly. There has to be information before
court which
information makes a judicial discretion possible. The presiding
officer must have regard to (i) nature of the
offence; (ii) any
prescribed maximum; and (iii) the particulars in the charge. Where
there is doubt about the seriousness of the
transgression,
questioning ought to take place.”
I
agree with the submission. In this matter it is apparent that the
magistrate did not embark on this exercise.
[7]
The right to legal representation is entrenched in the Constitution
and failure of a judicial officer to inform the accused
of any of his
legal rights may lead to an injustice. Such rights are rooted
in the principle that the accused must have a
fair trial.
See:
S v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC);
[8]
It is trite that the court must obtain all relevant facts and
circumstances necessary for the court to exercise a proper discretion
before sentencing the accused. In this matter the magistrate
did not offer both the State and the accused an opportunity
to
address the court before sentencing.
[9]
It is not clear from the record what principle was applied to inform
the decision on the sentence imposed by the magistrate.
[10]
I am of the view that the magistrate committed several misdirections
that warrant the setting aside of both conviction and
sentence.
[11]
I would therefore make the following order:
1.
The accused’s conviction and sentence
are set aside.
2.
The matter is remitted back to the
magistrate’s court for a hearing
de
novo
.
_______________
N.M.
MBHELE, AJ
I
concur.
_____________
L.J
LEKALE, J