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[2013] ZAGPPHC 344
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S v Bayat (2013/08/05) [2013] ZAGPPHC 344 (21 November 2013)
REPUBLIC
OF SOUTH AFRICA
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 2013/08/05
DATE:
21 NOVEMBER 2013
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
The
State
.................................................
Appellant
And
Ayesha
Bayat
............................................
Accused
JUDGMENT
VALLY
J
Introduction
1.
This case has been referred to this Court by the Acting Senior
Magistrate of the Regional Division of the South Gauteng Magistrates
Court (Vereeniging) for a special review in terms of section 304A of
the Criminal Procedure Act, 1977 (“the CPA”).
The
referral is consequent upon.a request made to the
Acting
Senior Magistrate by the Senior Prosecutor, which request was
granted.
2.
Section 304A of the CPA provides:
“
(a)
if a magistrate or a regional magistrate after conviction but before
sentence is of the opinion that the proceedings in respect
of which
he brought a conviction are not in accordance with justice, or that
doubt exists whether the proceedings are in accordance
with justice,
he shall, without sentencing the accused, record the reasons for his
opinion and transmit them, together with the
record of the
proceedings to the registrar of the provincial division having
jurisdiction, and such registrar shall, as soon as
practicable, lay
the same for a review in chambers before a judge, who shall have the
same powers in respect of such proceedings
as if the record thereof
had been laid before him in terms of section 303.
(b)
When a magistrate or a regional magistrate acts in terms of paragraph
(a), he shall inform the accused accordingly and postpone
the case to
some future date pending the outcome of the review proceedings and,
if the accused is in custody, the magistrate or
regional magistrate
may make such order with regard to the detention or release of the
accused as he may deem fit.”
3.
In terms of the section, the magistrate who has already convicted an
accused but is unsure of the safeness of the conviction
can, before
proceeding to impose a sentence, refer the case to a provincial
division to review the decision of the magistrate to
convict the
accused. In this case the learned magistrate that convicted the
accused has not referred the matter to this Court.
Instead, as
mentioned above, it is the Acting Senior Magistrate that has done so.
The reasons for this will become clear in a moment.
Facts
4.
The accused was charged with two others in the Regional Court for
contravening sections 2(1)(a)(q)(r), read with sections 1 and
2(2) of
the Animals Protection Act 71 of 1962, by allegedly unlawfully and
intentionally neglecting and ill-treating seven horses
by not giving
them adequate care and attention (Count 1), and for contravening
sections 2(1)(c)(q)(r), read with sections 1 and
2(2) of the Animals
Protection Act 71 of 1962 by allegedly unlawfully and intentionally
underfeeding and starving the horses by
not providing them with
adequate drinking water (Count 2). Initially the accused pleaded not
guilty to both charges. The State
commenced leading evidence against
her. While the first witness was still in the process of completing
his evidence, the accused
had either changed her plea, or made
certain admissions, which resulted in her being convicted. According
to her she and her co-accused
concluded a plea-bargaining agreement
with the State in terms of which she would alter her plea to guilty
and, once convicted,
the State would recommend that she receive a
non-custodial sentence. Furthermore, if she altered her plea to
guilty the State would
withdraw the charges against her co-accused
who, accordingly, would be discharged.
5.
According to the learned magistrate the following occurred:
“
...
there were 3 accused in this matter and it was only after the state
witness testified and before cross-examination that the
state and the
defence came to agreement to make formal admissions in regard to acc
1 and to stop prosecution in regard to Acc 2
and 3, if the state had
permission to stop prosecution is another question.” (emphasis
in original, grammatical errors have
been left intact).
6.
Whether the accused had altered her plea or whether she merely made
formal admissions is not clear from the record. The accused
and the
learned magistrate have a different recollection of what actually
happened: the accused maintains that she altered her
plea midstream,
while the learned magistrate is of the view that while the State was
in the process of presenting evidence in support
of its case, the
accused made certain admissions which led the Court to convict her.
There is no record of what actually happened.
In any event, what is
clear is that the learned magistrate found the accused guilty, though
it is not clear from the record whether
it was for one or both of the
counts. Having found the accused guilty the learned magistrate
postponed the matter so that a pre-sentence
report could be obtained.
Upon resumption of the hearing the learned magistrate indicated that
the pre¬sentence report was
incomplete as it failed to address
the question of what would happen to the children of the accused if a
custodial sentence was
imposed upon her. The matter was postponed so
that a more detailed pre¬sentencing report could be obtained. In
the meantime,
the accused’s attorney indicated that he and the
accused were dismayed at the turn of events.
7.
Prior to the resumption of the hearing the accused had terminated the
services of her attorney and replaced him with a new attorney
and an
advocate. At this hearing it was brought to the attention of the
learned magistrate that the accused would like to retract
her plea of
guilty as such a plea was entered into the record as a result of the
state misleading her into changing her initial
plea. As mentioned
above, according to the accused her decision to enter a plea of
guilty was consequent upon her concluding a
so- called
plea-bargaining agreement with the prosecutor who was presenting the
case for the State. According to the accused, the
crux of this
agreement was that if the accused pleaded guilty the prosecutor would
recommend that a suspended sentence be imposed
on her so that she
would not have to spend time in custody. It was the accused’s
contention that absent the agreement she
had no intention to plead
guilty to the charges put to her. The prosecutor, who allegedly
concluded the agreement with the accused’s
attorney, was now
assisted by another prosecutor. (It appears that the new prosecutor
took over the running of the case. However,
it is not clear from the
record if she had formally replaced the prosecutor who concluded the
agreement). The new prosecutor took
issue with the accused’s
contention that she was misled into pleading guilty. This resulted in
the parties raising the issue
with the learned magistrate who, it
seems, had no difficulty in entertaining it.
The
attempt to resolve the dispute as to how the accused came to be
convicted
1.
At the commencement of the proceedings, the counsel representing the
accused asked the learned magistrate to confirm that the
accused had
changed her plea from not guilty to guilty midway through the
proceedings, to which the learned magistrate responded:
“No you
cannot alter a plea, they then made admissions and the accused was
convicted.”1
2.
The counsel chose to deal with the matter as if there was no
difference in law between the two situations. He indicated that
her
conviction was subsequent to her making admissions, which were only
made because of the agreement that was concluded between
the
accused’s attorney and the initial prosecutor. Thus, he
submitted that absent the agreement between her and the State
as to
the sentence, she had no intention of making any admissions at all.
Instead she would require the State to prove every fact
necessary to
secure a conviction on the charges.
The
prosecutor’s version
10.
After hearing counsel for the accused, the learned magistrate decided
to call on the initial prosecutor to present her recollection
of what
happened. The prosecutor indicated that there was no change of plea
from not guilty to guilty, and that there was no agreement
between
her and the accused’s attorney as to what sentence the State
would recommend if the accused changed her plea from
not guilty to
guilty. The prosecutor presented her version in the form of an oral
statement. The statement was not taken under
oath, nor was counsel
for the accused allowed to ask her any questions.
The
accused’s version
11.
Once the initial prosecutor presented her version, counsel for the
accused asked to be allowed to present sworn viva voce testimony
from
the erstwhile attorney of the accused as to his recollection of what
transpired. He commenced his testimony by stating that
in his mind
there was no doubt that he had concluded a plea bargaining agreement
with the relevant prosecutor.The plea bargaining
agreement was not
concluded in one sitting. It culminated after a series of meetings,
or discussions, that took place between him
(the erstwhile attorney
for all three accused) and the initial prosecutor.
These,
according to him, culminated into the following:
“
...
but at some or other stage when I represented all three accused the
plea was one of not guilty. After the State then agreed
to withdraw
the charges against the two other accused that were on record, that
were being charged, at that stage after the plea
bargain was entered
into between myself and the State it was specifically agreed that if
they withdraw against the other two then
she would require to change
her plea from not guilty to guilty and plead guilty and on that basis
she would then obtain a suspended
sentence.”2 (all grammatical
errors have been left intact).
12.
The difference of opinion between the accused and her erstwhile
attorney, on the one hand, and the initial prosecutor, on the
other
hand, was never resolved by the learned magistrate. Instead, the
proceedings took a turn for the worse. The issue that now
took centre
stage was the conduct of the learned magistrate once she had
convicted the accused.
13.lt
is common cause that once the accused altered her plea, or made
certain admissions, she was found guilty and a pre-sentence
report
was sought. However, what transpired next is a matter of major
controversy. The understanding of the erstwhile attorney
of the
accused is that:
after
the matter had already been stood down or postponed, the conversation
that took place between myself, the magistrate and the
prosecutor was
aware and my client was also aware at that stage, but the magistrate
indicated that she intends, either my client
must pay R200 000 to the
Horse Care Unit and if she is not going to do that, the magistrate
herself was going to get the lady from
social welfare, I think it was
this lady Petra Tromp, Mrs Tromp, to make a new report in terms of
which she wants to sentence the
lady to direct imprisonment and she
would send her out to see who would take care of her children.”3
(all grammatical errors
have been left intact).
14.
This caused the accused and her erstwhile attorney great
consternation, which resulted in the attorney withdrawing as a
representative
of the accused and her replacing him with counsel. The
accused and her erstwhile attorney then claimed that the learned
magistrate
subsequent to the conviction failed in her duty to act
impartially. In the words of the erstwhile attorney:
“
Yes,
the fact that, firstly the Horse Care Unit people were not even here,
but she (the learned magistrate) insisted that my client,
in terms of
this particular, what I know of this particular offence, there was a
maximum fine of R5000 that the State can impose,
right, and when I
heard the magistrate saying that my client must go to the Horse Care
Unit and make arrangements, and that is
not a sign of remorse the
fact that she is not going and paying them the money that is owed to
them, R150 000 or R200 000, right,
and she said that would be the
only sign of remorse. That she must go the Horse Care Unit and pay
them the money. So when I heard
that I obviously felt that the
magistrate is now being biased, because it is not her duty and
function to get the accused to go
and make arrangement to pay off a
civil debt. If the Horse Care Unit needs to institute a civil action
they have a right to go
and proceed in a normal civil court to go and
sue someone for R200 000 and get a judgment and execute the
judgment.”4 (all
grammatical errors have been left intact).
15.
The erstwhile attorney was cross-examined by the new prosecutor who
took over the case from the initial prosecutor (who is supposed
to
have concluded the agreement with the said attorney). However, it
bears noting that prior to the commencement of the cross-examination,
counsel for the accused objected to the procedure adopted by the
learned magistrate. The transcript
of
the proceedings records his objection thus:
“
Mr
Maboze (Counsel): Your worship just for procedure, I am just worried
about this enquiry. Your worship will bear in mind that
the two
prosecutors never took a stand and never.... (intervenes)
Court:
That is why I ask you do you want him to address the court or do you
want him under oath and you decided to put him under
oath. In the
meantime both of them (i.e. the two prosecutors), their address is on
record. They are officers of Evidence of Suliman,
p 18, lines 23 p 19
lines 1-11 the court, 1 believe an officer of the court should at all
times be truthful and the record speaks
for itself. But let us deal
with it, this is an inquiry, so let us deal from (indistinct).
Mr
Maboze: It is fine, but is this inquiry it is also on record your
worship that I was not allowed to can pose a single question
to the
prosecutors, it was the court that was asking questions.
Court:
We will deal with that as we go, then if need be and you feel you
need to question them, we will take it further.”
(Quotation is
verbatim.)5
16.
The learned magistrate did not give any indication as to why she did
not accord the erstwhile attorney of the accused the same
courtesy
she so keenly granted to the two prosecutors by also recognising his
status as an officer of the court. She merely stated
that the
proceedings had transformed into "an inquiry” and that it
is her decision to allow him to face cross-examination.
Hence, the
prosecutor was allowed to cross-examine the erstwhile attorney. The
cross-examination whilst robust was, in our view,
unnecessarily
aggressive and accusatory bearing in mind that it was a fellow
officer of the court that was facing cross-examination.
It focussed
on whether the attorney was truthful in his claim that a plea
bargaining agreement was concluded between himself and
the
prosecutor. During the cross-examination, the learned magistrate,
too, engaged the erstwhile attorney along the same lines
and in the
same manner as the cross-examining prosecutor. This, in our view, was
unnecessary and unfortunate. It gave credence
to the erstwhile
attorney’s complaint that the accused was not being treated
fairly and impartially: during his testimony,
the erstwhile attorney
alleged that the learned magistrate was biased.
17.
At the conclusion of the testimony of the erstwhile attorney, it
became clear that there was a difference of opinion between
the
erstwhile attorney, the two prosecutors and the learned magistrate as
to what transpired prior to the changing of the plea
(or the making
of admissions) by the accused, during the proceeding when the changed
plea was recorded and during the proceedings
after she was convicted.
In the quest to resolve the disagreement, counsel for the accused
then indicated that the accused intended
to apply for the record of
the previous proceedings to be transcribed so that the dispute
between the
erstwhile
attorney, the two prosecutors and the learned magistrate as to what
transpired in court after the accused had altered
her plea, or made
certain admissions, could be established. The learned magistrate
informed counsel for the accused that:
“
It
(The record of the proceedings) is not going to be provided, you can
ask for it to be typed and on cost of your own client, the
State is
not going to provide it.”6
18.lt
is not clear from the record why the learned magistrate deemed it
necessary to speak on behalf of the State, or for that matter
why it
was necessary for her to make any comment on the issue, save for
stating that should the accused seek the record to be transcribed
she
must follow the necessary procedures.
The
decision of the learned magistrate to recuse herself
19.
At the next sitting of the court it became clear to all that the
recordings of the previous proceedings were not available and
that,
as a result, it would be impossible to independently verify what
occurred in court when the accused altered her plea (or
made
admissions), and what transpired at the subsequent hearings. As a
result of this the learned magistrate decided to recuse
herself from
the matter and ordered that the matter should commence de novo before
another magistrate. This decision, it must be
noted, was taken after
hearing from the prosecution and the defence counsel as to what
course should be followed given the strong
indication by the accused
(at the penultimate hearing) that she intended to mount a challenge
regarding the regularity of the proceedings
prior to, and after, her
conviction. Both the prosecution and the defence counsel indicated
that they had no difficulty with the
decision. During the course of
relaying her decision the learned magistrate indicated that the State
should re-charge the two co-accused.
20.
The decision of the learned magistrate was brought to the attention
of the Acting Senior Magistrate who referred it to this
Court for a
special review in
terms
of s 304A of the CPA. In referring the matter the learned Acting
Senior Magistrate stated that:
“
It
is my submission that there might be an irregularity committed during
the proceedings.”
21.lt
is not clear on what basis the learned Acting Senior Magistrate made
this submission. However, before she decided to refer
the matter to
this Court she received a letter from the senior prosecutor, who
requested that it be sent for special review in
terms of section 304A
of the CPA. In her request the senior prosecutor indicates that in
her opinion the learned magistrate “had
no legal grounds for
her recusal." She was of the view that it was improper for the
learned magistrate to order that the matter
proceed de novo before
another presiding officer, and more particularly decide that the two
accused, who were initially charged
with the present accused, should
be re-charged. On this latter point, the senior prosecutor was of the
view that they were acquitted
by the learned magistrate, and
therefore could not be re-charged. The senior prosecutor also pointed
out that it was not for the
learned magistrate to decide the issue as
to whether those two accused should be re-charged.
22.
The senior prosecutor also raised the question as to whether the
learned magistrate should have recused herself because the
mechanical
recording of the proceedings was not available. The question, in our
view, is based on an incorrect understanding of
the factual basis for
the decision of the learned magistrate to recuse herself. The learned
magistrate did not recuse herself perse
because of the
non-availability of the mechanical recording. She did so because
there was no independent record of what transpired
during the
proceedings, in circumstances where there was an extremely serious
controversy as to what transpired between herself,
the prosecutors
involved in the case and the erstwhile attorney of the accused.
Requiring her to reconstruct the record in those
circumstances would
not be a realistic option since so serious was the controversy that
it affected her role as an impartial adjudicator.
Any reconstruction
by the learned magistrate would only perpetuate the controversy and
may even extend it.
23.
In any event, while the learned magistrate did not furnish any reason
for not attempting to reconstruct the record, she indicated
that, in
the absence of an independent record, the accused’s contention
that there was an irregularity in the proceedings
during, and
subsequent to, her conviction would complicate further proceedings if
she continued with sentencing the accused. Hence,
her decision to
recuse herself and order that the matter commence de novo before
another magistrate. The learned magistrate should
not have done this,
instead she should have exercised her power in terms of s 304A of the
CPA and referred the matter to this Court
for a review of the
proceedings.
24.
The omission of the learned magistrate is remedied by the action of
the Acting Senior Magistrate. It bears mentioning that the
learned
magistrate was consulted before the matter was referred to this Court
for a special review in terms of section 304A of
the CPA and she
responded as follows:
“
I
have no objection if the matter is send (sic) on special review.”
(Emphasis in original.)
25.
For the sake of completeness, and in fairness to the learned
magistrate, it is necessary to record the basis upon which she
came
to the conclusion that the interests of justice would best be served
if she was to recuse herself, and order that the matter
commence de
novo before another presiding officer. This is best done by quoting
from her response to the decision of the Acting
Chief Magistrate to
refer the matter to this Court. The relevant portions of her response
read:
“
We
then went on record and evidence was led that the
state misled
the defence during the plea bargaining, and if so a plea of not
guilty should be noted and secondly that the court is now threatening
the accused with direct imprisonment on the 25/01/2013. Of which this
allegation is incorrect. The matter was then remanded on
numerous
occasions to obtain the court proceedings of the 25/01/2013. ...
During
this period I was called in by my Senior Magistrate Mrs Le Roux,
18/06/2013, that informed me that while I was in court a
female
attorney came to her office and informed her that she is an acting
magistrate in Krugersdorp and is also representing this
accused and
wants to know if I am going to recuse myself from the case. There was
also the following document handed to me by the
appeal clerk. On
19/06/2013 we proceeded in court and the following document were
handed up in court to me - see Annexure A and
B (these are letters
addressed to the lAfrica Transcriptions (Pty) Ltd, requesting a copy
of the transcript of the proceedings
of 25 January 2013, however in
one of the letters there is a allegation that the learned magistrate
demonstrated bias against the
accused during the proceedings on that
day).
I
also placed on record what transpired on the 18/06/2013 in my senior
office. The lady that introduces herself to my senior as
an attorney
was also present in court sitting next to the advocate.
On
the 15/07/2013 I received the following e-mail from the adv. with the
attachment. See annexure C. (the attachment is not included
in the
record)
On
30/07/2013 the matter was on the roll none of the court proceedings
could be obtained and due to the application from the defence
for me
to recuse myself, I felt that the only thing to do is to recuse
myself, as it will be of no use to reconstruct the record
...
(The
learned magistrate then refers to the relevant case law concerning
the issue of the recusal of a presiding officer.)”
(The
grammatical and spelling errors have been left intact.)
26.
The above explanation furnished by the learned magistrate indicates
that she was faced with a recusal application at the final
hearing of
this matter. In the light of the fact that the records of the
previous proceedings were not available she decided to
grant the
application.
The
legality of the learned magistrate’s decision to recuse herself
and to order that the matter commence de novo
27.
The decision of the learned magistrate to recuse herself was
certainly lawful. An application for her recusal was placed before
her, and she decided to grant it, rightly or wrongly. It is a final
decision. The State has not challenged it. However, her decision
that
the matter must commence de novo before another presiding officer
does not sit comfortably with the State. According to the
senior
prosecutor, the learned magistrate has no power to make an order to
this effect. Whether that is so or not is, in the circumstances
of
this case, irrelevant. The fact of the matter is that once the
learned magistrate had recused herself the matter would have
to come
before another magistrate for sentencing, and before she could
proceed with sentencing she would be faced with an application
to
have the matter adjourned in order for the accused to apply, on
review, for the setting aside of all the proceedings up to the
stage
when she was convicted. Thus, this matter would be placed before this
Court for consideration of the review application.
That, however, is
exactly what has happened now. The only difference is the manner in
which it has been brought to this Court for
a review.
Can
this Court review the proceedings?
28.
Section 304A does not cater for the situation that has occurred in
this case. In terms of this section it is the magistrate
who presides
in the matter that is empowered to refer the matter to this Court and
not the senior magistrate. In my view, the referral
of the matter to
this Court by the Acting Senior Magistrate in circumstances where the
learned magistrate had decided to recuse
herself from further
proceedings was the only prudent route open to the Acting Senior
Magistrate. This matter is now before this
Court and, despite the
fact that it was brought here in terms of the provisions of section
304A of the CPA, this Court has the
power to intervene in the
proceedings if a grave injustice would ensue if it does not do so. In
other words, its intervention is
called for in the interests of
justice. In our view, given the facts and circumstances relayed
above, it is imperative that this
Court intervenes at this stage.
This court is empowered to interfere in exceptional circumstances and
where the interests of justice
call out for its intervention.7 This,
in our view, is one such case.
29.
There is no doubt in my mind that the proceedings that gave rise to
the conviction were not in accordance with justice. The
evidence of
the erstwhile attorney for the accused indicated that there were
serious unresolved issues concerning the validity
of the guilty plea.
This issue was placed before the learned magistrate and she failed to
resolve it, despite the fact that she
had received submissions from
the prosecutor and evidence from the accused. Furthermore, while this
issue was being canvassed it
became clear that the accused was also
disgruntled at the approach adopted by the learned magistrate after
she had convicted her.
In that circumstance, this matter should be
brought to the attention of this Court for it to consider whether the
conviction should
be set aside or not.
30.
The evidence of the erstwhile attorney for the accused reveals
without doubt that the accused changed her plea to one of guilty,
only because she was misled into believing that by doing so she would
escape a custodial sentence.
Furthermore,
once she was disabused of this impression, there occurred a
disagreement between the erstwhile attorney and the learned
magistrate. The manner in which the disagreement was ventilated was
untidy, to say the least.
31.
Furthermore, the conduct of the learned magistrate subsequent to the
conviction, and especially during the proceedings where
the dispute
as to the circumstances that gave rise to the changing of the plea
was aired, is a matter for serious concern. She
was certainly not
able to extricate herself from the controversy. On the contrary, she
allowed herself to become central to the
controversy. Her conduct
during this proceeding is disturbing enough to call into question the
safety of the conviction itself.
32.
In the result, the conviction cannot be allowed to stand.
Order
33.
The following order is made:
1
The conviction of the accused is set aside.
2
The matter is remitted to the Regional Division of the South Gauteng
Magistrates Court (Vereeniging), to be dealt with by a magistrate
other than the one who has convicted the accused.
B
Vatfy J
Judge
of the North Gauteng High Court Pretoria
A
P LEDWABA DJP
Judge
of the North Gauteng High Court Pretoria
Date
of Judgement: 19 November 2013
Record,
p 2, Iines14 -15
Evidence ofSuliman, p 14, lines 17-24
3
Evidence of
Suliman, p 17, lines 13-22
Evidence of Suliman, p 18, lines 23 p 19
lines 1-11
5
Record,
p 23, lines 12-25
6
Record,
p 56, lines 8-9
See:
Walhaus and
Others v Additional Magisrate, Johannesburg and Another
1959 (3) SA
113
(A) at
119D-120A;
Ismail and
Others v Additional Magistrate, Wynberg and Another
1963 (1) SA
1
(A) at 5G-
6A