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
>>
2013
>>
[2013] ZAFSHC 156
|
|
S v Madito and Others (151/2013) [2013] ZAFSHC 156 (8 August 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 151/2013
In the review of:
THE STATE
and
PIET MADITO
.........................................................................
Accused
no 1
PAUL ITUMELENG
................................................................
Accused
no 2
GOODWILL MOKHUANE
......................................................
Accused
no 3
JERRY LEPHOI
......................................................................
Accused
no 4
______________________________________________________
CORAM:
KRUGER, J
et
SEPATO, AJ
_______________________________________________________
JUDGMENT
BY:
KRUGER, J
______________________________________________________
DELIVERED
ON
: 8 AUGUST 2013
_______________________________________________________
[1] This matter was sent
on review by a regional magistrate because she was unsure whether
accused no 1, Piet Madito had suffered
any prejudice during the
district court hearing before the matter was sent to the regional
court for sentencing under
section 116(1)
of the
Criminal Procedure
Act 51 of 1977
. The basis for the fear of prejudice entertained by
the regional magistrate was that for a period when accused no 1 was a
minor,
no guardian was present on his behalf and the proceedings were
not held in camera. In my view there were other aspects of the case
which required scrutiny, and I referred the matter to the Director of
Public Prosecutions for an opinion. I am indebted to Adv
J H S
Hiemstra SC and Adv F Pienaar for their thorough and helpful opinion.
[2] The facts of the
matter pertinent to this judgment appear from my enquiry to the
Director of Public Prosecutions:
“
1. Four
accused were charged in the district court with public violence. They
were convicted on 27 August 2010. After convicting
all four accused
it was brought to the attention of the district magistrate that the
case had to be heard in the regional court
by virtue of
“directives”(?)(p103). Thereupon the district court
magistrate referred the case to the regional court
on 30 August 2010.
2. Did a jurisdictional basis exist in
section 116(1)
of Act 51 of 1977 for the referral to the regional
court? The prosecutor requested the transfer; no mention of sentence
is made.
From the record it appears that on 14 November 2012 the
point was raised by a legal representative that an inappropriate
section
was possibly used to transfer the matter to the regional
court.
3. As to the concern of the regional
magistrate regarding the age of Accused No 1 in the district court,
it appears that the magistrate
was informed that Accused No 1 turned
18 on 26 January 2010, the day after he pleaded. This birth date was
confirmed by the legal
representative of Accused No 1. Could there
have been prejudice to Accused No 1 under these circumstances?
4. In the meantime Accused No 4 has
died. Accused No 1 is on warning and Accused No 2 and 3 on bail.
Under section 35(3)(d) of the
Constitution an accused has the right
to have his trial concluded without unreasonable delay. The public
violence took place on
19 November 2009, we are now in June 2013. Is
this not an unreasonable delay? According to the record of
proceedings in the regional
court there was a request for final
postponement in terms of section 342A of Act 51 of 1977 on 12
September 2012.
5. Can this court make an order under
section 342A of Act 51 of 1977 that the remaining three accused be
discharged? Would this
be “any such order as it deems fit”
(section 342A(3)) in order to eliminate the prejudice to the accused.
Is this court
(the High Court) “A court before which [the]
criminal proceedings are pending” (section 342A(1))?
6. Input from the Director of Public
Prosecutions will be greatly appreciated.”
[3] In their memorandum,
counsel make it clear that the Directives of the National Director
are merely guidelines, and have no binding
force. They also point out
that the prosecutor in the district court committed an error of
judgment in referring the matter to
the regional court for sentence.
They refer to the guidelines of the National Director of Public
Prosecutions which determine that
the case should be referred to the
regional court for sentence only in exceptional circumstances.
Counsel are of the view that
in this matter a suitable sentence will
not exceed the jurisdiction of the district court.
[4] As to the compliance
with section 116(1) of Act 51 of 1977 counsel point out that a matter
can be referred to the regional court
for sentence only –
“
(1)
If a magistrate's court, after conviction following on a plea of not
guilty but before sentence, is of the opinion-
(a)
that
the offence in respect of which the accused has been convicted is of
such a nature or magnitude that it merits punishment in
excess of the
jurisdiction of a magistrate's court;
(b)
that
the previous convictions of the accused are such that the offence in
respect of which the accused has been convicted merits
punishment in
excess of the jurisdiction of a magistrate's court; or
(c)
that
the accused is a person referred to in section 286A (1), [Para.
(c)
added by s. 19
(b)
of Act 116 of 1993.] the court shall
stop the proceedings and commit the accused for sentence by a
regional court having jurisdiction.”
The intention is clearly
to ensure that an appropriate sentence is imposed. The trial
magistrate must exercise an own judgment as
to whether the above
requirements have been met, and cannot simply act upon the request of
the prosecutor, because the matter will
then not properly be before
the regional court (
S v Kgomo
1978 (2) SA 946
(T)).
Counsel point out that it is clear that none of the accused can be
regarded as dangerous criminals. There is also no suggestion
that
they have previous convictions. There is no indication that the
district magistrate gave any consideration to the seriousness
of the
offence, contemplated in section 116(1)(a). From the record it
appears that the magistrate slavishly acted upon the request
of the
prosecutor. Thus the matter was not properly before the regional
court (
S v Kgomo
,
supra
). Counsels are thus of
the view that the matter should be referred back to the district
court for sentence as was done in
S v Beyers
1978 (4)
SA 816
(T).
[5] Regarding the
question whether accused no 1 was prejudiced because of his age,
counsel point out that non-compliance with the
provisions of section
74 of Act 51 of 1977 is not automatically a fatal irregularity, with
reference to
S v Ramadzanga
1988 (2) SA 816
(V).
Section 74 has in the meantime been replaced by
section 65(1)
of the
Child Justice Act 75 of 2008
, which does not alter the situation in
this case. Counsel indicate that the accused was not prejudiced in
this case:
(a) A day after the trial
started accused no 1 turned 18. He was 18 years old when he
testified.
(b) Accused no 1 was
throughout assisted by an attorney.
(c) Accused no 1 pleaded
not guilty and went through an entire trial and there is no
indication on the record that there was any
prejudice.
(d) The trial court was
in camera when the trial started.
Thus accused no 1 was not
prejudiced and there is no basis to set aside the proceedings.
[6] As to the question
whether there was an unreasonable delay in this matter the following
dates are pertinent:
Offence committed 19
November 2009
Bail application and
release 19 November 2009
Plea and start of trial
25 January 2010
Judgment 27 August 2010
Referred to Regional
Court 30 August 2010
Typed record received 24
July 2012
First Regional Court date
22 August 2012
Regional Court
consideration 14 November 2012
Counsel point out that
the longest delay was caused by the waiting for the typed record and
delivery of the record to the regional
court. A further delay was
caused by enquiries and correspondence between the regional court and
the district court. A delay of
about four months was caused by the
defence not being ready to proceed in the regional court.
[7] Unreasonable delay is
a factor which a court can take into account in determining whether
the interests of justice were served.
It is not only the accused who
has an interest in the completion of a criminal trial (
Sanderson
v Attorney-General, Eastern Cape
[1997] ZACC 18
;
1998 (1) SACR 227
(CC)). In
the present matter a conviction was in place 9 months after the plea.
The accused were all on bail or on warning.
[8] The important
question is whether the accused have been subjected to an
unreasonable delay as a result of which they have been
substantively
prejudiced. In this matter the state was not responsible for the
delay. It cannot be found that the state is responsible
for the
delay. The accused were on bail and warning throughout. The setting
aside of the proceedings will not be in the public
interest. Although
the delay in this matter is lamentable, the circumstances do not
justify the setting aside of the proceedings.
The matter should be
referred back to the district court for sentence.
ORDER
[9] The referral by the
district court magistrate of this case to the regional court for
sentencing is set aside and the matter
is referred back to the
district court so that the magistrate who convicted the accused, or
if that magistrate is no longer available,
another magistrate, can
sentence the four accused.
____________
A. KRUGER, J
I agree
________________
R. M. SEPATO, AJ
/eb