About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2014
>>
[2014] ZAFSHC 161
|
|
Hagile v S (36/2014) [2014] ZAFSHC 161 (10 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Special
Review Number : 36/2014
In
the special review between:-
GLOBANI
HAGILE
and
THE
STATE
CORAM:
VAN ZYL, J
et
POHL,
AJ
JUDGMENT
BY :
VAN ZYL, J
DELIVERED
ON:
10 SEPTEMBER 2014
[1]
This matter was sent on special review in terms of Section 304(4) of
the Criminal Procedure Act, 51 of 1977 (“the Act”)
under
cover of a letter from Mr MC Mokgobo, the Acting Senior Magistrate,
Bloemfontein, and an accompanying letter from M Matshaya,
the Control
Magistrate, Bloemfontein.
[2]
The matter initially served before my colleague Moloi J, who directed
a written query indicating that the record of the proceedings
was not
enclosed. The said record was then provided, after which the
matter served before me. I then raised a written
query
regarding one of the issues that was raised in the initial
accompanying letter of Magistrate Matshaya. In response
to my
enquiry Magistrate Matshaya conceded that the issue should not have
been sent on review and withdrew the application for
special review
in that regard.
[3]
Magistrate Matshaya however, and correctly so, requested as follows
in his last mentioned response:
“
The
record of proceedings is resubmitted herewith for appropriate orders
to be made regarding the rest of the submissions.”
[5]
The remaining matters raised in the letter of Magistrate Matshaya are
the following:
“
4.4
The manner in which the sentence and the conditions of suspension are
phrased, is vague;
4.5
The accused’s rights to appeal and review were not explained
to him.
5.
It is submitted that in the light of the above cited irregularities
the accused did not get a fair trial.
6.
The Honourable Reviewing Judge is requested to set aside the
conviction and sentence and order that the proceedings should start
“
de novo
”.
7.
These irregularities have been brought to the attention of the
Magistrate concerned and similar occurrences will be eliminated
in
the future.”
[6]
The accused appear before an Acting Magistrate on 6 January 2014 on a
charge of contravening Section 59(1)(b), read together
with other
relevant sections, of the
National Road Traffic Act, 93 of 1996
, and
also read with the relevant regulations of the National Road Traffic
Regulations of 2000, being a charge of driving at a speed
in excess
of the general speed limit of 100 kilometres per hour which applied
to the specific road, to wit at a speed of 142 kilometres
per hour.
After the accused`s rights to legal representation were explained, he
elected to conduct his own defence.
He pleaded guilty to the
said charge and was sentenced as follows:
“
R3 000-00
or two years imprisonment wholly suspended for a period of three
years on condition that the accused does not being
found guilty of a
similar offence during the period of suspension. The license of the
accused is not suspended.” [sic]
CONDITIONS
OF SUSPENSION OF SENTENCE:
[6]
It is a pre-requisite for a valid condition of suspension that the
condition be precisely formulated. The primary object
is after
all that the accused must understand what he or she has to do or
avoid in order to ensure that the sentence is not put
into
operation. Secondly, the Court which later has to consider the
possible putting into operation of the suspended sentence
must be
able to determine the ambit of the condition. See
R
v CLOETE
1950 (4) SA 191
(EDL).
[7]
The reference to
“
a similar offence”
is regarded as too vague. See
S
v NGCOBO
1966 (1) SA 605
(N);
S
v MOTHOBI
1972 (3) SA 841
(O).
[8]
I therefore would have amended the condition on which the sentence
has been suspended in order for it to be clearly formulated,
but due
to my further findings in this matter this issue will become
irrelevant.
EXPLANATION
OF THE ACCUSED’S RIGHTS TO APPEAL AND REVIEW:
[9]
It is evident from the record that the presiding Magistrate failed to
explain the accused`s rights to review and appeal to him.
That he
failed to do so, is further confirmed by the remark in paragraph 7 of
Magistrate Matshaya’s letter, already quoted
in paragraph 5
above.
[10]
Very similar facts and circumstances were present in the matter of
S
v KUMKANI
2013 (2) SACR 360
(WCC). In
that matter the Court determined as follows:
“
[8]
Section 304 lays down the procedures to be followed in automatic
reviews. Even where sentences are competent and regularly imposed,
a
reviewing court may intervene where, in subsequent events, if
no interference occurs, it would lead to a miscarriage of
justice — see
S
v Z and 23 Similar Cases
2004
(1) SACR 400 (E)
([2004]
1 All SA 438).
[9]
In the present matter, the magistrate, by her own admission, has
failed to explain to the accused his rights of review and appeal
after sentencing. This error infringes upon accused's rights as
entrenched in the Constitution, ch 2 of the Bill of Rights,
s
35(3)
(o)
,
which reads as follows:
'Every
accused person has a right to a fair trial, which includes the right
to appeal to, or review by a higher court'.
In
my view, if these rights are not adhered to, that would amount to a
travesty of justice.
[10]
In my view, accused has been deprived of his constitutionally
entrenched right by the magistrate. This was an unrepresented
accused
who knew nothing about the rule of law. It was therefore incumbent
upon the magistrate to inform the accused of his rights,
for him to
make up his mind on both conviction and sentence. It is my
judgment that the accused cannot be doubly penalised
for the error
committed by the magistrate. It would be unfair for this court to
refer the matter to the magistrates' court for
the proceedings to
start de novo, through no fault of the accused.
[11]
Consequently the proceedings in this case appear to be not in
accordance with justice. In the interest of justice, therefore
the
conviction and sentence are set aside and the accused is entitled to
a refund of his deferred fine already paid.”
[11]
I respectfully agree with the aforesaid
dicta
.
The competency of such intervention is consistent with the spirit,
purport and objects of the Bill of Rights of the Constitution.
It is
also supported by the inherent jurisdiction of the superior courts to
regulate their process and develop the common law in
the interest of
justice. See paras [24] – [27] of the
S
v Z AND 23 SIMILAR CASES,
supra.
I therefore agree with Magistrate Matshaya’s view and request
that the conviction and sentence of the accused should be set
aside
as the proceedings were not in accordance with justice.
[12]
Furthermore, in considering the question whether the matter should be
referred back to the Magistrates’ Court in order
for the trial
to start
de novo
, it is the duty of the Court to see that justice is done both to the
convicted person and to the State. See
S
v ZULU
1967 (4) SA 499
(TPD) at 501G.
In this regard it is also in the interests of justice that that
litigation should come to finality. See
S
v ZULU
,
supra
,
at 502 F
.
In
the circumstances of this case it is clear that considerable time,
effort, inconvenience and expense to both the State and the
accused
would be involved in bringing the accused before Court again. In this
regard I am mindful of the fact that the accused
appears to be from
Gauteng province. This will bring about a result which, in my view,
will not serve the interests of any party.
Moreover it is my view
that in this particular case justice and fairness towards the accused
in any event outweighs justice towards
the State. The matter is
therefore not to be heard
de novo.
[13]
Consequently the conviction and sentence are set aside and the State
is to refund the accused for the fine already paid.
_____________
C. VAN ZYL, J
I
agree:
______________
L.
le R. POHL, AJ