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[2014] ZANCHC 33
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S v Steenkamp (07/2014) [2014] ZANCHC 33 (25 April 2014)
IN THE HIGH COURT OF SOUTH AFRICA
[NORTHERN CAPE DIVISION, KIMBERLEY]
HIGH COURT REF NR : 07/2014
MAGISTRATE'S SERIAL NO: 01/2014-KAKAMAS
THE
STATE
Versus
OELOF
STEENKAMP
ACCUSED
CORAM:
PHATSHOANE J
et
PAKATI J
DATE
OF JUDGMENT: 25 April 2014
JUDGMENT ON REVIEW
Phatshoane J
1. This matter is before us
on automatic review. The accused, Mr Oelof Steenkamp, appeared
before
Ms Du Toit in the Regional Court held at Gordonia on 17 December 2013
on a count of theft of watermelons to the value of
R360.00. He was
not legally represented. He pleaded guilty and was convicted of theft
as charged on the strength of his plea. A
sentence of nine months’
imprisonment wholly suspended for a period of five years on certain
conditions was imposed on him.
2. At the commencement of
the trial the Magistrate informed the accused of his right to
legal
representation including a right to have State financially aided
legal representation if he was unable to afford a private
attorney.
The accused elected to conduct his own defence. What is
unconventional is that immediately thereafter, before the
charge
could be put to the accused, the Magistrate enquired from him whether
he had previous convictions or any cases pending against
him. He
responded in the negative. It is clearly inappropriate for a
judicial officer to enquire from an accused concerning
his or her
previous convictions at the commencement of the proceedings as if she
was conducting an opposed bail application.
3.
Section 271
of the
Criminal Procedure Act, 51 of 1977
, provides:
“
Previous convictions may
be proved:
(1) The prosecution may, after
an accused has been convicted but before sentence has been imposed
upon him, produce to the court
for admission or denial by the accused
a record of previous convictions alleged against the accused.-
(2) The court shall ask the
accused whether he admits or denies any previous conviction referred
to in subsection (1).
(3) If the accused denies such
previous conviction, the prosecution may tender evidence that the
accused was so previously convicted.
(4) If the accused admits such
previous conviction or such previous conviction is proved against the
accused, the court shall take
such conviction into account when
imposing any sentence in respect of the offence of which the accused
has been convicted.”
4. An accused’s
previous convictions (SAP 69) are presented after conviction
but
before the sentencing procedure. This is so because justice may not
be served if presiding officers are placed in possession
of
information which is likely to influence their impartiality and
result in failure of justice. The approach adopted by the Magistrate
may undermine the accused’s right to a fair trial if he or she
is not a first offender. Nevertheless, it is trite that not
every
irregularity vitiates the proceedings. In
Key v Attorney-General,
Cape Provincial Division, and Another
[1996] ZACC 25
;
1996 (2) SACR 113
(CC) at
120 para 12 the Court made the following pronouncement:
“
[12] A criminal trial
court will of course always have to be mindful of the fundamental
rights entrenched in chap 3. It will in
particular ensure that the
accused enjoys the benefit of the right to a fair trial guaranteed by
the general introductory words
in s 25(3) of the Constitution. In
doing so, due regard will be had to the dictum of Kentridge AJ
(speaking on behalf of this Court
in its first reported judgment) in
S v Zuma and Others
[
[1995] ZACC 1
;
1995 (1) SACR 568
(CC) para
16]:
'The right to a fair trial
conferred by that provision is broader than the list of specific
rights set out in paras (a) to (j) of
the subsection. It embraces a
concept of substantive fairness which is not to be equated with what
might have passed muster in
our criminal courts before the
Constitution came into force. In S v Rudman and Another; S v Mthwana
1992 (1) SA 343
(A), the Appellate Division, while not decrying the
importance of fairness in criminal proceedings, held that the
function of a
Court of criminal appeal in South Africa was to
enquire:
"whether there has been an
irregularity of illegality, that is a departure from the formalities,
rules and principles of procedure
according to which our law requires
a criminal trial to be initiated or conducted".
A Court of appeal, it was said
(at 377),
"does not enquire whether
the trial was fair in accordance with 'notions of basic fairness and
justice', or with the 'ideas
underlying . . . the concept of justice
which are the basis of all civilised systems of criminal
administration' ".
That was an authoritative
statement of the law before 27th April 1994. Since that date s 25(3)
has required criminal trials to be
conducted in accordance with just
those "notions of basic fairness and justice". It is now
for all courts hearing criminal
trials or criminal appeals to give
content to those notions.”
See also
S v Moodie
1961 (4) SA 752
(A) at 758E - H, 760G - H.
In my view, the apparent irregularity highlighted cannot be
classified as having tainted the proceedings
because the accused had
no previous conviction.
5. Following the
accused’s first appearance in Court on 17 December 2013
his
case was postponed for further investigation. On 27 December 2013, a
date to which the case was remanded, he failed to appear.
A warrant
for his arrest was authorized. When the accused appeared on 10
January 2014 an enquiry into his non-appearance on 27
December 2013
was held. He still appeared in person. He testified and was
questioned on his default. In the end the prosecutor
requested the
Magistrate to find the accused guilty of contempt of Court. The
Magistrate did not return any verdict but went on
to enquire from the
State whether the investigation in respect of the offence with which
the accused had been charged, the theft,
has been completed.
6. The prosecutor thereupon
requested a postponement. Instead of enquiring from the prosecutor
the reason for the postponement the Magistrate stood the matter down
for the accused to peruse through the docket. Later on the
same day
the trial resumed. The Magistrate enquired from the accused whether
he understood the contents of the docket. She did
not explain to him
again his rights relating to the main trial. Where an accused is
unrepresented the Magistrate should act as
a guide at all stages of
the trial. She ought to inform the accused of his basic procedural
rights, for example the right to cross-examine,
the right to testify,
the right to call witnesses, the right to address the Court both on
the merits and in respect of sentence
and in comprehensible language
to explain to him the purpose and significance of his rights. See
S
v Ramulifho
2013 (1) SACR 388
(SCA) at 391-392 para 5 and
authorities quoted therein. This is what appears on record:
“
HOF: Gaan u nog steeds
self praat?
BESKULDIGDE: Ja u edele.
HOF: Ja?”
7. Thereafter, the charge
was put to the accused to which he pleaded guilty. It was simply
insufficient for the Magistrate to merely ask the accused if he still
intended to conduct his own defence. A much more detailed
explanation
of his trial rights was required as already pointed out.
8. In his plea-explanation the
accused stated that he stole three watermelons. Following this
plea
the prosecutor informed the Court that according to information
contained in the docket it was nine watermelons to the value
of
R360.00 that were stolen. Nevertheless the state accepted the
explanation proffered by the accused. As already alluded to, the
accused was convicted of theft of watermelons to the value of R360.00
and sentenced to nine months imprisonment wholly suspended
for a
period of five years on specific conditions. It is evident that if
nine melons were valued at R360 therefore mathematically
each melon
would be worth R40.00. In the result, the three melons in respect of
which the accused was, and should have been, convicted
are valued at
R120.00.
9. I do not deem it
necessary to solicit the Magistrates’ comments because this
is
a relatively minor offence. No substantive injustice or gross
irregularity has occurred which would justify the setting aside
of
the conviction and entail an unwarranted delay. I nevertheless deem
it necessary to interfere with the sentence by reducing
it, with the
option of a fine. In the premises, I make the following order.
ORDER
1. The
conviction of the accused is confirmed.
2. The
suspended 9 (nine) months’ imprisonment is reviewed and
set
aside and substituted with the following:
“
The accused is sentenced to a fine of R400 or two months'
imprisonment, wholly suspended for five years on condition that he is
not convicted of theft or attempted theft committed during the period
of suspension”.
JUDGE MV
PHATSHOANE
I agree.
JUDGE BM PAKATI