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[2013] ZAFSHC 1
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S v Maroeli and Another (338/12) [2013] ZAFSHC 1 (17 January 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 338/12
THE STATE
versus
NGAKA MAROELI
..................................................................
Accused
2
LILIO SEPOLO
........................................................................
Accused
3
_____________________________________________________
CORAM:
RAMPAI, J
et
LEKALE, J
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
17 JANUARY 2013
_____________________________________________________
[1] The matter came to
court by way of an automatic review in terms of section 302
Criminal
Procedure Act 51 of 1977
. The two accused appeared as accused 2 and
accused 3 in the district court together with another person, accused
1. Their co-accused
was not before us on review. The charge(s)
against him were withdrawn.
[2] There were two
charges preferred against accused 2. The first was contravention of
section 5(b)
Drugs and Drug Trafficking Act 140 of 1992
- dealing in
cannabis. However he was not convicted as charged. Instead he was
convicted on the alternative charge of possession
of such an
undesirable drug in contravention of
section 4(b)
and sentenced to
six months imprisonment.
The second was
contravention of
section 49(1)
Immigration Act 13 of 2002
- illegal
immigrant. He was convicted as charged and sentenced to R1000,00 fine
or thirty days imprisonment.
[3] As regards accused 3,
he faced one charge only, to wit, contravention of
section 49(1)
Immigration Act 13 of 2002
. He was accordingly convicted and
sentenced to a fine of R1000,00 or 30 days imprisonment.
[4] I perused the record.
After I had done so, I caused the following query to be sent to the
trial magistrate:
“”
Will
you kindly convey the following remarks to the Magistrate in this
matter and return the record to him for his comments:
The charge(s) against accused 1
were withdrawn. After the withdrawal and contrary to the numerical
sequence according to the charge-sheet,
the court referred to
accused nr (sic) 2 as accused nr (sic) 1 and accused nr (sic) 3 nr
(sic) 2. Why was this done?
Did the court not exceed the
permissible purposive boundaries of the judicial questioning in
terms of
section 112(1)
of the
Criminal Procedure Act 51 of 1977
as
regards accused nr (sic) 2?
Is it not customarily the function
of a public prosecutor to put the charge to the accused?
Did the public prosecutor accept
the plea of accused nr (sic) 2 in respect of the first charge of
dealing in cannabis?
The second question (vide
paragraph 2
supra
) applies to accused nr (sic) 3 as well.
I look forward to receive the response
of the trial magistrate as soon as possible.”
[5] The learned
magistrate responded as follows:
“
The matter
above refers.
1. The court refers to the accused in
the correct numerical sequence after the charges have been withdrawn
against accused nr 1.
However the typist typed the sequence of the
accused incorrectly. I also wish to admit to the Honourable Judge
that it is fault
on my part not to have rectified the said mistake
before appending my signature.
2.
I agree with the Honourable
Judge that my questions have exceeded the purposive boundaries of
judicial questioning in terms of
Section 112(1)
of the
Criminal
Procedure Act 51 of 19077
in that they were leading and
impermissible. This applies to both accused nr 2 and 3.
3. I agree with the Honourable Judge
that it is customarily the function of the public prosecutor to put
the charge to the accused.
I also wish to refer the Honourable Judge
to page 2 of the transcribed record which reflects that the public
prosecutor put the
charge to both accused nr 2 and 3 respectively.
The prosecutor put the main count of dealing in cannabis and
alternatively of possession
of cannabis to accused nr 2 only, and put
the second count of Contravening
section 49(1)
of the
Immigration Act
13 of 2002
, to both accused nr 2 and 3.
4.
No, the prosecutor did not
accept the plea of accused nr (sic) 2 in respect of the charge of
dealing in cannabis and wish to admit
to the Honourable Judge that it
was a mistake done on my part.
I await further directions and
instructions.”
[6] As regards accused 2,
he was unwilling to plead guilty to the main charge, in other words,
dealing in cannabis. He clearly wanted
to plead guilty to the
alternative charge, in other words, possession of cannabis.
[7] From page 3:01 to
page 11:17 the trial magistrate questioned accused 2 at length about
his plea relative to the first charge.
The thrust of the magistrate’s
line of questioning was geared at eliciting an admission from accused
2 that, he was a cannabis
dealer and not just a mere cannabis
possessor, or to use his preferred word, smoker, as he persistently
averred he was.
Section 112
Act No 51 of 1977 was certainly not
enacted for such a purpose.
[8] The dual purpose of
the judicial questioning in terms of the section is to make doubly
sure: firstly, that the accused admits
all the elements of the crime
and secondly, that the accused has no valid defence to the charge. (
S
v KHOLOANE
2012 (1) SACR 8
(FB) par. 5.)
The procedure was not
designed to ensnare an unrepresented accused. The underlying purpose
of the procedure is to ensure that such
an accused receives a fair
trial. When a judicial officer descends into the arena and puts too
many questions, as was done in this
instance, he or she oversteps the
mark.
[9] The broad guiding
principles pertaining to judicial questioning in general, were laid
down in
S v RALL
1982 (1) SA 828
(AD) per Trollip AJA,
as he then was. I quote from the flynote only since the trial
magistrate has, in a responsible and admirable
manner, frankly
acknowledged that her judicial questioning of the two accused persons
was rather impermissible and excessive:
[
“
While it is difficult and
undesirable to attempt to define precisely the limits within which
judicial questioning should be confined,
the following broad,
wellknown limitations should generally be observed: (1) The trial
Judge should so conduct the trial that his
open-mindedness, his
impartiality and his fairness are manifest to all those who
are concerned in the trial and its outcome,
especially the
accused. The Judge should consequently refrain from questioning any
witnesses or the accused in a way that, because
of its frequency,
length, timing, form, tone, contents or otherwise, conveys or is
likely to convey the opposite impression. (2)
A Judge should also
refrain from indulging in questioning witnesses or the accused in
such a way or to such an extent that it may
preclude him from
detachedly or objectively appreciating and adjudicating upon the
issues being fought out before him by the
litigants. (3) A Judge
should also refrain from questioning a witness or the accused in a
way that may intimidate or disconcert
him or unduly influence the
quality or nature of his replies and thus affect his demeanour or
impair his credibility.
Any serious transgression of these
limitations will in general constitute an irregularity in the
proceedings.”
[10] The question in this
matter is whether the irregularity has resulted in a failure of
justice (see section 322(4) Act No 51
of 1977). If it has, we, as a
court of review, have to intervene in order to grant an appropriate
relief. That in turn gives rise
to two possible scenarios. The one
critical consideration is whether or not the irregularity so
prejudiced the accused as to warrant
higher judicial intervention.
This is an inquiry with a narrow ambit. The other significant
consideration is whether or not higher
judicial intervention is
required in the interests of public policy. The scope of such an
inquiry is comparatively wide –
S v Rall
,
supra
.
[11] At long last and
after an offensively lengthy questioning, the trial magistrate
delivered a verdict in the following words:
“
Regarding
the main and alternative, I am satisfied that the accused admitted to
(sic) all the elements of the offence with regard
to the alternative
count and the accused similarly
CONVICTED
of being in possession of cannabis and
NOT
GUILTY
of dealing in cannabis.”
[12]
Seeing that accused 2 was acquitted in respect of the main charge of
dealing in cannabis and convicted in respect of the less
serious
statutory crime of mere possession of such a drug, it may be argued
that the irregularity
did not prejudice
accused 2. In a narrow sense, such an argument may be correct. I have
my own reservation about the apparent lack
of prejudice to the
accused. However, for the purpose of this review I am prepared to
accept, without deciding, that we need not
let the narrow avenue of
prejudice to the accused detain us any longer.
[13] It now remains to
determine whether judicial intervention is required by virtue of the
interests of public policy. As a result
of the disturbingly excessive
questioning accused 2 ended up disclosing, to his detriment, that he
cultivated the prohibited and
dependence-producing plant in his rural
village; that he lived in a foreign country; that he harvested the
crops; that he imported
the drug from Lesotho into this country; that
he shipped the load of cannabis drug from the border to Welkom; that
he usually supplied
his fellow workmen with the imported drug and
that they all smoke it.
[14] Notwithstanding his
firm denial that he had carried 45,3kg of cannabis for unlawful
commercial purposes, the aforesaid admissions
concerning the
cultivation, harvesting, importation, transportation and distribution
– brought him squarely within the ambit
of section 5(b). Those
deadly admissions made pursuant to excessive questioning, depicted
and legally portrayed him as a person
who was much more than the mere
smoker he professed he was – a foreign drug trafficker.
[15] Section 1
Drugs and
Drug Trafficking Act 140 of 1992
defines the words “deal in”
as follows:
“’
deal
in’
,
in relation to a drug, includes performing any act in connection with
the transhipment, importation, cultivation, collection,
manufacture,
supply, prescription, administration, sale, transmission or
exportation of the drug;”
[16] It follows, on the
facts, that a strong case was made out, through improper, excessive
and offending questioning by the trial
magistrate for the conviction
of accused 2 on the main charge of unlawful dealing in drugs
(section
5)
and not alternative charge of unlawful possession
(section 4).
In
the peculiar circumstances of this particular review, I am of the
firm view that an incorrect verdict was given. Justice was
not seen
to have been done.
There was no rational
connection between the proven or admitted facts and the verdict
returned. The excessive questioning unduly
exposed the unwary accused
2 to the peril of a conviction in respect of a more serious charge in
respect of which he had clearly
and very early indicated that his
plea was one of not guilty.
[17] As I see it, it is
not in the general interest of public policy to let such a verdict
stand. The fact that the incorrect verdict
given entailed less
hardship to the accused than the verdict which accorded with the
admitted facts does not provide a reason to
let it stand. The ends do
not justify the means. The bottom-line was that the questioning of
the accused was a serious transgression
of the legitimate bounds of
section 112
judicial powers and constituted an irregularity in the
process. There was potential prejudice to the accused. Moreover, and
this
was very important consideration, there was actual prejudice to
the interests of public policy.
[18] The interests of
public policy certainly demand that there be a solid bond between the
facts and the conviction.
In
casu, there was simply no match.
Moreover, the prosecutor did not accept the plea of the accused on
the alternative charge of unlawful
possession of cannabis. On that
score alone the soft conviction was also tarnished by procedural
irregularity. This calls for intervention.
The magistrate conceded
that she did not defer to the public prosecutor before she gave the
verdict.
[19] There was a great
likelihood that if the prosecutor was invited to address the court as
the norms of custom and procedure dictate
– the prosecutor
would probably have rejected the alternative plea. In which event the
prosecutor would have led evidence
in an endeavour to prove the main
charge of dealing in an undesirable dependence-producing drug in
contravention of
section 5(b).
This clearly demonstrates just how the
interests of public policy were undermined as a result of excessive
questioning. It had
an enormous impact on the substantive as well as
the procedural dimensions of the trial. Had it not been for the
excessive questioning,
the outcome might have been different.
[20] The salient
principle is, of course, that if the offending questioning of an
accused by a magistrate sustains the inference
that the magistrate
was not open-minded, impartial or fair it is expected of a higher
court to interfere in order to grant an appropriate
relief –
S
v RALL
,
supra
.
[21] In the circumstances
and regard being had to the failure of justice as alluded to I am
inclined to conclude that the conviction
and the sentence should be
set aside in respect of the first charge against accused 2.
[22] As regards the
questioning of both accused in respect of the charge that they were
illegal immigrants – I am of the view
that their questioning,
excessive though it was in respect of accused 3 in particular, did
not constitute a drastic transgression
of the limitations on judicial
questioning. Since no miscarriage of justice resulted, we have no
reason to intervene.
[23] Accordingly I make
the following order:
23.1 The conviction and
sentence of accused 2 in respect of the first charge, to wit,
contravention of
section 4(b)
Drugs and Drug Trafficking Act, No 41
of 1992
– possession of cannabis, are set aside;
23.2 The convictions and
sentences of both of the accused as illegal immigrants –
contravention of
section 49(1)
Immigration Act No 13 of 2002
are
confirmed.
______________
M. H.RAMPAI, J
I concur.
______________
L. J. LEKALE, J
/spieterse