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[2014] ZAFSHC 178
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S v Mofokeng (168/2014(B)) [2014] ZAFSHC 178 (18 September 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Review
No: 168/2014(B)
DATE:
18 SEPTEMBER 2014
In the review
between:
THE STATE
And
BOETIE STEVEN
MOFOKENG
CORAM: KRUGER, J
et MOTLOUNG AJ
JUDGMENT: KRUGER,
J
DELIVERED ON: 18
SEPTEMBER 2014
REVIEW JUDGMENT
[1] This is a
special review under section 304(4) of the Criminal Procedure Act 51
of 1977 (the Act) concerning a case in the magistrates’
court
at Steynsrus where, on 17 January 2013, a witness was convicted of
not attending court after having been subpoenaed, and
sentenced to a
fine of R600 or three months’ imprisonment. This fine was
paid. On 24 July 2014 the Deputy Director of Public
Prosecutions of
the Free State sent a letter to the chief magistrate of the Welkom
cluster pointing out that the conviction of
the witness did not
appear to be in order. On 30 July 2014 the magistrate of Steynsrus
who convicted the witness furnished reasons
for the conviction of the
witness stating that in his view the conviction was correct.
Thereafter, on 15 August 2014 the senior
magistrate of Kroonstad sent
this matter to the registrar of this court for special review and
requested that the conviction and
sentence of the witness be set
aside.
[2] The facts
surrounding this case are as follows. The two accused, Johannes
Gerhardus Uys, aged 52 years and Hermanus Van Niekerk
Uys, aged 18
years, both of the farm Nooitgedacht were summonsed to appear in the
magistrates’ court at Steynsrus on 12 July
2012 on a charge of
assault to do grievous bodily harm in that on 9 April 2012, at or
near the farm Waterval in the district of
Lindley they had assaulted
Steven Mofokeng by bumping him with a vehicle and assaulting him with
open hands. In the annexure to
the charge sheet in respect of
Hermanus Van Niekerk Uys the allegation is added that he hit the
complainant with fists.
[3] On 12 July 2012
the two accused appeared in court and the matter was postponed to 18
October 2012 as arranged with their legal
representative. Subpoenas
to attend court on 18 October 2012 were issued in respect of two
witnesses. The police officer who
served the subpoena on Steven
Mofokeng certified thereon that he served the subpoena personally on
Steven Mofokeng in the year
2012 at Steynsrus. The endorsement does
not state on what date or time the subpoena was served.
[4] On 18 October
2012 both state witnesses were absent. The prosecutor requested
warrants of arrest for the two absent witnesses,
Steven and Joseph
Mofokeng. The magistrate granted the warrant in respect of Steven,
and not for Joseph, presumably because the
subpoena on Joseph had not
been personally served. The case was postponed to 17 January 2013.
[5] On 17 January
Steven Mofokeng was before court. The prosecutor called him to
testify, and he was sworn in. Before the prosecutor
could start
questioning him, the magistrate told the prosecutor that the witness
had been subpoenaed personally to attend court
of 8 October but was
absent, and asked whether the witness had an excuse. The witness
responded that he was busy on the farm where
he works with the cattle
and the person who promised to come and fetch him did not do so. The
magistrate’s immediate response
was that it was not a valid
excuse and he convicted the witness of failure to attend court.
[6] Section 188(1)
of the Act provides that if a person who has been subpoenaed to
attend criminal proceedings fails to attend,
that person is guilty of
an offence and liable to the punishment contemplated in subsection
(2) which in turn refers to section
170(2). Section 170(2), adapted
as the circumstances require, provides that a court may, if
satisfied that a witness has failed
to appear after having been
informed of the obligation, “in a summary manner enquire into
his failure to appear….and,
unless the accused satisfies the
court that his failure was not due to fault on his part, convict him
of the offence referred to
in subsection (1) and sentence him to a
fine not exceeding R300 or to imprisonment for a period not exceeding
three months”.
In S v Singo
[2002] ZACC 10
;
2002 (4) SA 858
(CC) the court
dealt with section 72(4) of the Act, concerning the failure of an
accused who was released on warning in lieu of
bail to attend.
Section 72(4) contains the same provision as that quoted above,
dealing with the enquiry when the accused fails
to appear. The
Constitutional Court ordered that the words “there is a
reasonable possibility that” had to be inserted
between the
words “that” and “his failure”. This means
that the person who failed to attend court is only
guilty of an
offence if that person failed to satisfy the court that there is no
reasonable possibility that the failure to attend
was not due to
fault on his part. Put differently, the court has to acquit the
person if there is a reasonable possibility that
the failure to
attend was not due to the fault of the person who failed to attend.
The constitutional objection to the wording
as it stands is that it
places a burdensome reverse onus on the person who has to explain why
he or she is not guilty of an offence.
The objections upheld by the
constitutional court against section 72(4) apply with equal force to
section 170(2). The court can
only convict a witness who failed to
attend as contemplated in section 188(1) and 170(2) if the court is
satisfied that there is
no reasonable possibility that the failure to
attend was not due to the fault of that person.
[7] The next aspect
to consider is the adequacy of the magistrate’s summary
enquiry. “What justice and common sense
require is that the
presiding officer should explain to the accused the position in which
he finds himself, namely that prima facie
he is in default, service
having been effected properly, and that the onus is upon him to rebut
the prima facie fact that he is
in default or to prove to the court
that he has some other reasonable excuse for his failure or evasion
as the case may be.”
(per Cloete J in S v Du Plessis 1970(2) SA
562 (ECD) at 564H-565A).
[8] In this case the
magistrate merely asked the witness why he did not attend, and after
the response of the witness immediately
convicted him. At the very
least he should have asked the witness to advance reasons why he
believed the explanation to be adequate.
Apart from that, the enquiry
should have started by asking the witness if he admitted that he had
been properly subpoenaed, and
when that happened. The subpoena does
not state when it was served, it appears to be inadequate. Apart from
that, the reason advanced
by the witness, namely that his transport
did not arrive, appears to be sufficient. He is a farm labourer
earning R1 400 (presumably
per month). The magistrate should at least
have asked him what alternative arrangements (if any) he tried to
make when his lift
did not arrive.
[9] The correct way
to deal with a witness who fails to appear, is for the magistrate to
warn the witness that it appears that he
has committed an offence.
The magistrate must then ask the witness whether he or she admits
that the subpoena was properly served.
Then the witness should be
allowed to explain by means of evidence under oath and argument why
he or she should not be convicted
under section 188 read with section
170(4). Only if the magistrate is satisfied that the explanation
offered by the witness is
not reasonably possibly acceptable, can a
conviction follow. Further, the witness will usually be
unrepresented, and now being
an accused, will have the rights of an
accused as set out in section 35(3) of the Constitution and explained
in S v Singo (supra)
pars 11-13.
[10] Lest there be
confusion as to the quantum of the fine because section 170(2)
provides only for a fine of R300 and the magistrate
imposed a fine of
R600, it must be pointed out that, in terms of the Adjustment of
Fines Act 101 of 1991, 3 months’ imprisonment
is now the
equivalent of a R5 000 fine. That is because 3 years’
imprisonment is equal to a fine of R60 000. The magistrate
was
entitled to impose a fine of R600, if the conviction was in order,
which it was not.
[11] The conviction
of the witness of his failure to attend court was wrong and should be
set aside.
ORDER
The conviction
and sentence of Boetie Steven Mofokeng on 17 January 2013 are set
aside.
A. KRUGER, J
I agree.
I.M.M. MOTLOUNG,
AJ
/WM