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 224
|
|
S v Motlogelwa (194/2014) [2014] ZAFSHC 224 (23 October 2014)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 194/2014
DATE: 23 OCTOBER 2014
In matter between:
The State
And
Thabang Motlogelwa
CORAM: KRUGER, J et MOENG, AJ
JUDGMENT BY: MOENG, AJ
DELIVERED ON: 23 OCTOBER 2014
[1] This matter was placed before me on
special review in terms of
section 304
(4) of the
Criminal Procedure
Act 51 of 1977
(‘CPA’). As will appear hereunder, the
litany of irregularities prompted the Senior Magistrate at Welkom to
refer this
matter to this court, with the recommendation that the
conviction and sentence be set aside.
[2] The facts herein can briefly be
summarised as follows: the accused appeared in the magistrate court
Hertzogville on one count
of malicious injury to property. He pleaded
guilty thereto on 15 April 2014 and was, on the same date, convicted
and sentenced
to a fine of R500.00 or 1month imprisonment suspended
for three years on certain specified conditions. The magistrate
declared
the accused not unfit to possess a fire arm in terms of
section 103(1) of the Fire Arms Control Act 60 of 2000 and ordered
him
to compensate the complainant in the amount of R600.00.
[3] Save for the plea, verdict and
sentence, the rest of the proceedings were not recorded. The Senior
Magistrate indicates that
the proceedings were not digitally recorded
nor could the magistrate reconstruct the record from his notes. The
following note
is further made on the roneo form attached to the
charge sheet: “Meganiese opname – daaglikse CD/GEEN –
geen
operatriese”
[4] It does not appear ex facie the
record and as pointed out by the Senior Magistrate:
a) Whether the accused was informed of
the charge he faced before he pleaded thereto;
b) Whether his right to legal
representation was explained;
c) On what basis the conviction
followed, therefore whether the provisions of section 112(1) (a) or
112(1) (b) of the CPA were applied;
d) Whether the state was afforded the
opportunity to prove previous convictions;
e) Whether the accused’s rights
before sentence were explained;
f) Whether both the prosecutor and the
accused addressed the court before sentence was imposed;
g) Whether the provisions of the Fire
Arms Control Act were explained and what facts were placed on record
for the finding in terms
of section 103 of Act 60 of 2000 and;
h) On what basis the compensation order
that was granted in favour of the complainant was made.
[5] Section 4 (1) of the Magistrates
Court Act (‘MCA’) provides that every court, in this
instance, a magistrates court,
shall be a court of record. This
provision is peremptory and requires exact compliance. Any purported
compliance falling short
thereof would be a nullity.
[6] Section 5(1) of the MCA further
reinforces the provisions of section 4(1) and provides that except
for the requirement that
criminal trials be open to the public, they
should also be recorded by the presiding officer concerned. In
addition thereto, section
76 (3) (a) of the CPA directs the court to
keep a record of the proceedings, whether in writing or mechanical,
or the court may
cause such record to be kept.
[7] It is clear from these provisions,
and as has been repeatedly stated by our courts, that magistrate’
courts are courts
of record and the duty of a presiding officer to
keep a proper and complete record of the proceedings is therefore
vital. I align
myself with what was said by Vivier AJ in S v K
1974
(3) SA 857
(C) at 858 G-H that;
‘Die plig van 'n landdros in 'n
strafsaak wanneer hy die rekord in eie hand afneem om volledig,
noukeurig en duidelik te notuleer
alles wat voor hom plaasvind wat
enigsins relevant is tot die verrigtinge voor hom of die meriete van
die saak is al by herhaling
deur ons Howe beklemtoon’
[8] The record is the only source from
which it can be determined whether the proceedings were in accordance
with justice and it
portrays the facts upon which the conviction,
sentence and any resultant orders are based. The importance thereof
is further that
the reader can glean from such record that the
presiding officer has taken an informed decision in arriving at his
verdict.
[9] The record should speak for itself
since its contents shall be prima facie proof of what transpired
during such proceedings
should the provisions of section 235(1) of
the CPA be applied. The unassailable conclusion is therefore that
whatever was not recorded
was not said or explained and in that
premise, I can unreservedly accept that the procedural rights of the
accused were not complied
with.
[10] Section 35 (3) (a) of the
Constitution guarantees the right of every accused person to a fair
trial, which comprises of the
right to be informed of the charge with
sufficient detail to answer to it, whereas subsection (3) (f) and (g)
guarantees the right
of an accused to be informed of his right to be
represented by a legal practitioner, and to have a legal practitioner
assigned
to him or her by the state at state expense, if substantial
injustice would otherwise result.
[11] It does not appear ex facie the
record that these rights, which are the cornerstone of any civilised
democracy, were explained.
The right to legal representation is a
right that is central to the fairness of criminal trials. Failure to
explain such right
is an infringement of the right to a fair trial
and an irregularity vitiating proceedings. [See S v Lusu
2005 (2)
SACR 538
(E)]
[12] The right to legal representation
is further interlinked with the right against self-incrimination.
Once the right to legal
representation is not explained the danger of
self-incrimination of a lay person is amplified. [See S v Melani 1996
(1) SACR 335
(E)]. The guilty plea tendered by the accused should
therefore be viewed in light of the failure to explain the right to
legal
representation.
[13] There is no indication whether the
accused was informed of the charge in terms of section 35(3) (a) of
the Constitution nor
is there any indication that the charge was put
to him in terms of section 105 of the CPA. In the absence of such
explanation the
accused could not have been asked to plead to the
charges. I therefore do not consider it necessary to determine the
validity of
the plea, resultant conviction and sentence, since same
were the consequence of an irregular procedure.
[14] The magistrate’s order in
terms of section 103(1) of Act 60 of 2000 is likewise misplaced.
Apart from the irregularities
relating to the failure to explain the
provisions of section 103, as well as the lack of input from the
prosecutor and the accused,
the offence did not warrant application
of the provisions of section 103(1), but at best section 103(2).
[15] The compensation order that was
granted, purportedly in terms of section 300 of the CPA, was likewise
improper. The indispensable
prerequisite for such an order is that
the complainant has to apply for such an order or mandate the
prosecutor to do it on his
or her behalf. The court can therefore
not, as it appears in the case at hand, decide mero motu to grant
such an order.
[16] Such an application should be
preceded by a full explanation to the unrepresented accused as to the
nature and import of the
enquiry. Since the order is civil in nature,
the accused as well as the complainant should have been afforded the
opportunity of
leading evidence in quantification of the damages, if
not earlier admitted by the accused or raised during the trial. [See
S v
Van Rensburg
1974 (2) SA 243
(T)]
[17] Before I conclude, I need to
remark that this is the fourth special review that I managed to
trace, directed at the manner
in which the same magistrate conducted
criminal trials. The Senior Magistrate also remarked in his letter to
the Acting Judge President
that a number of other matters will still
be forwarded to this court on special review. The convictions and
sentences in all the
matters I referred to were set aside.
[18] All these matters, including the
one at hand, regrettably indicate shoddy and careless workmanship
expected of a judicial officer.
The making of these elementary flaws,
in my view, borders on the dereliction of his duties as a magistrate.
I suggest that urgent
steps be taken by the quality assurance office
to correct this untenable situation.
[19] The irregularities stated here
above are such that it cannot be said that the accused had a fair
trial as the proceedings were
not in accordance with justice.
The following order is accordingly
made;
1. The conviction and sentence are set
aside.
LBJ MOENG, AJ
I concur
A. KRUGER,J