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[2012] ZAFSHC 117
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S v Mofokeng (19/2012) [2012] ZAFSHC 117; 2013 (1) SACR 143 (FB) (18 June 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 19/2012
THE STATE
versus
MAMOHLALA MOFOKENG
_____________________________________________________
CORAM:
LEKALE, J
et
SNELLENBURG, AJ
_____________________________________________________
JUDGMENT
BY:
SNELLENBURG, AJ
_____________________________________________________
DELIVERED
ON:
18 JUNE 2012
_____________________________________________________
[1] This is an automatic
review in terms of section 302 of the Criminal Procedure Act, 51 of
1977 (the Act). The accused, conducting
her own defence, was
convicted and sentenced in the Ficksburg district court on a charge
of assault with the intent to do grievous
bodily harm under case
number R86/2011.
[2] The original
charge-sheet (J15) indicates that the accused was arrested on the 4
th
of December 2011 although the typed record indicates it
to be on the 8
th
of
December 2011. The accused first appeared on the 6
th
of December 2011; therefore the date of the 8
th
of December mentioned above is clearly erroneous.
[3] On the day of the
first appearance the accused indicated that she would plead guilty.
Although it does not appear explicitly
from the typed record, it is
clear that the presiding magistrate intended to apply section
112(1)(
b
) of the Act
after the guilty plea.
After the presiding
magistrate questioned the accused she convicted the accused of
assault with the intent to do grievous bodily
harm.
[4] The state did not
prove any previous convictions of the accused and after further
questioning by the magistrate she commenced
with the sentencing of
the accused. The court below took into consideration for mitigation
of sentence the tender age (24 years)
of the accused, that the
accused was a first offender and that she was a mother. The accused
was then sentenced to a
fine of
R500.00
or six months imprisonment, which is wholly suspended for a period of
five (5) years on condition that she is not convicted
of assault or
assault with the intent to do grievous bodily harm, which is
committed within the period of suspension.
[5] The matter was
allocated to a Judge, in chambers, of this court on the 2
nd
of February 2012 for purpose of an automatic review in
terms of
section 302
of the
Criminal Procedure Act
supra
.
The reviewing Judge returned the record to the magistrate, Ficksburg
on the 6
th
of
February 2012 with the following queries:
“
1. Was the
court satisfied that the accused was pleading guilty freely and
voluntarily without being influenced thereto by anyone?
If so, why is
that fact not apparent from the record? No questions to that effect
can be gleaned from the record.
Was the accused advised of her legal
rights to give evidence under oath and to call witnesses in
mitigation of sentence? If so
why are those facts not apparent from
the record?
Was there any inquiry held in terms
of section 103 of the Fire Arms Control Act no 60 of 2000. If so
what were the finding and
the order? Once again this information is
not apparent from the record.”
[6] The matter was
returned to the reviewing Judge on 8 March 2012 accompanied by a
letter (dated 14 February 2012) stating that
the presiding officer
was only an acting magistrate for a period of one month and that she
has since then left the office. The
reviewing Judge returned the
matter to the Court Manager, Magistrate’s Court, Ficksburg,
requesting that the matter be placed
before the relevant magistrate
to answer the queries as a matter of urgency so as to finalise the
matter.
[7] The matter was
returned to the High Court, Bloemfontein, on the 30
th
of
May 2012 with the response of the relevant magistrate to the queries
of the reviewing Judge.
[8] In her response, the
presiding officer admits the court erred in not establishing directly
from the accused whether she was
pleading guilty freely and
voluntarily without being influenced thereto by anyone, but says that
she was nevertheless satisfied
that the accused was indeed pleading
guilty freely and voluntarily without being influenced thereto by
anyone on the grounds of
the accused’s relaxed demeanour and
the ease with which she answered questions posed by the court,
regarding why she wanted
to plead guilty.
[9] The magistrate goes
further to concede that she erred in not advising the accused to give
evidence in mitigation of sentence
and also that no inquiry was held
in terms of section 103 of the Fire Arms Control Act, Act 60 0f 2000
and therefore no finding
or order was made in this regard. She
requests this court to rectify this if it deems it fit to do so.
[10] The matter was
subsequently placed before me for review. It is the duty of this
court in reviewing this matter to ensure that
the proceedings in the
trial court as well as the conviction and sentence are according to
justice.
[11] It is apposite to
evaluate the procedure that was followed before turning to the
conviction and sentence.
[12] As appears from the
incorrect date of arrest reflected on the original charge-sheet, the
paperwork leaves a lot to be desired.
The charge sheet (J15) for
instance also refers to the gender of the accused as a male. Upon
reading the record, however, it is
clear that the accused is indeed
female. The charge sheet was never amended. I leave it at that.
[13] At the commencement
of the proceedings the interpreter at the request of the magistrate
explained the accused’s rights
to legal representation
including her right to apply for Legal Aid should she not be able to
afford legal representation. The accused
indicated that she
understood her rights and wished to represent herself.
[14] The court then
enquired from the accused whether she would indeed plead guilty as
indicated by the prosecutor and the following
was said:
“
COURT
:
The State has also indicated that you wish to plead guilty to the
offence of which you are charged, to wit is assault.
ACCUSED:
Indeed your Worship.
COURT:
Yes Mr PP?
PROSECUTOR:
Thank you your
Worship. The charge against the accused person is the crime of
assault.”
The prosecutor then
proceeded to put the charge to the accused.
[15] The charge preferred
against the accused as per annexure “A” appended to the
original charge-sheet and put to the
accused reads as follows:
“
THAT the
accused is/are guilty of the crime of Assault with intent to do
grievous bodily harm.
IN THAT upon or about 03/12/2011 and
at or near ROSEDAL in the District of FICKSBURG the accused did
unlawfully and intentionally
assault MR LEFU MOTINYANE by STABBING
HIM WITH A BROKEN BOTTLE with the intent to do him grievous bodily
harm.”
After the charge was put
to the accused the court asked the accused if she understood the
charge against her and she confirmed that
she did. The court
proceeded to enquire from the accused how she pleads to the charge
and the accused indicated that she is pleading
guilty.
[16] It is imperative to
keep in mind that the court below was dealing with an undefended
accused.
[17]
The right to a fair trial conferred by s 25(3) of the Constitution of
the Republic of South Africa, Act 108 of 1996 is broader
than the
list of specific rights set out in paras (a) to (o) of the
subsection.
1
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. The various rules of practice according
to which our law requires a criminal trial to
be initiated or
conducted and which have been developed in our judiciary have to an
extent been enclosed in section 35(3) of the
constitution. The
“rules” not specifically enclosed still applies, but the
constitutional rights also require that
the trial must be fair in
accordance with "notions of basic fairness and justice”.
S
v ZUMA AND OTHERS
[1995] ZACC 1
;
1995
(2) SA 642
(CC) para [16]. As appears from
S
v RUDMAN AND ANOTHER
;
S
v MTHWANA
1992
(1) SA 343
(A) the rules of practice evolved to assist the illiterate
and indigent accused in an endeavour to ensure that he or she is
tried
fairly and that justice is done. Although all of the “rules”
are not necessarily relevant in this matter, it is apposite
to
reiterate them. The failure to comply with one or more “rules”
may result in a failure in justice, depending on
the facts and
circumstances of the specific case. The rules can succinctly be
summarised as follows:
17.1
Before
the accused is called upon to plead the presiding judicial officer is
obliged to examine the charge-sheet, ascertain whether
the essential
elements of the alleged offence
(s)
have been averred with reasonable clarity and certainty and then give
the accused an adequate and readily intelligible exposition
of the
charge
(s)
against him. Section 35(3)(
a
)
of the Constitution now confers this right.
17.2 Unless the
charge-sheet contains an appropriate reference to it and the factual
basis for bringing it into operation, the accused
should be informed
by the presiding judicial officer or the prosecutor of the operation
of any presumption he may have to rebut
and the prosecutor should
inform the court and the accused of the content of the evidence he
intends to lead.
17.3 Where it is
competent for a court to convict an accused of an offence other than
the one alleged in the charge-sheet a judicial officer
may be
obliged to inform an undefended accused of the competent verdict,
unless the contravention is an alternative charge or the
prosecutor
indicates that the State's case is restricted to the offence
(s)
alleged in the charge-sheet.
17.4 At all stages of a
criminal trial the presiding judicial officer acts as the guide of
the undefended accused. The judicial
officer is obliged to inform the
accused of his basic procedural rights - 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.
17.5 During the State
case a presiding judicial officer is at times obliged to assist a
floundering undefended accused in his defence.
Where an undefended
accused experiences difficulty in cross-examination the presiding
judicial officer is required to assist him
in
(a)
formulating
his question,
(b)
clarifying the issues and
(c)
properly putting his defence to the State witnesses.
17.6 Where, through
ignorance or incompetence, an undefended accused fails to
cross-examine a State witness on a material issue,
the presiding
judicial officer should question - not cross-examine - the witness on
the issue so as to reduce the risk of a possible
failure of justice.
17.7 If, at the close of
the State case, an undefended accused is not discharged, the
presiding judicial officer is obliged to inform
him of his
rights and in clear and unequivocal terms explain the courses open to
him.
17.8 The judicial officer
is obliged to inform the undefended accused in clear and simple
language of any presumption the prosecutor
is relying on, the
implications thereof and the manner in which it can be rebutted.
17.9 The judicial officer
should assist an undefended accused whenever he needs assistance in
the presentation of his case and should
protect him from being
cross-examined unfairly.
17.10 The judicial
officer has a general duty to ensure that unrepresented accused fully
understand their rights and the recognition
that in the absence
of such understanding a fair and just trial may not take place. This
includes the right to legal representation,
especially where the
charge is serious. In such event the accused should be informed of
the seriousness of the charges and the
possible consequences of a
conviction. In cases where the charges are extremely serious it may
be appropriate to encourage the
accused to exercise his right to
legal representation and the option to apply for Legal Aid
assistance. Section 35(3) of the Constitution
also guarantees these
rights.
A conviction and sentence
will only be set aside if the irregularity has led to a failure of
justice. If an irregularity leads to
an unfair trial, then that will
constitute a failure of justice.
S v JAIPAL
[2005] ZACC 1
;
2005 (4) SA
581(CC)
para [39]. Each case will depend upon its own facts and
peculiar circumstances.
[18] It is clear that
where an accused is unrepresented there is a duty on the presiding
officer to take extra care to ensure that
the accused knows what is
expected of him/her, that he/she understands his/her rights and the
procedure to follow.
[19]
At no stage of the proceedings did the magistrate inform the
accused of the procedure that was to be followed in applying section
112 of the Act
.
The magistrate also failed to inform the
accused, at any stage before she pleaded guilty, of the possible
competent verdicts that
she could be convicted on should the plea of
guilty not stand on a charge of assault with the intent to do
grievous bodily harm.
[20]
The purpose of section 112(1)(
b
),
which is particularly relevant in this instance, was recently
re-stated by Rampai, J in
S v KHOLOANE
2012 (1)
SACR 8
(FB) at para [5]:
“
The purpose
of the subsection is to ensure that the accused really admits all the
elements of the crime to which he pleads guilty.
The questioning
strives to protect the innocent from erroneous convictions based on
their own ignorance of the law or improper
influence. By compelling
the courts to embark on this procedure the underlying idea was that
the court should make doubly sure
that a person who pleads guilty has
indeed no possible defence to the crime he admits committing. In S v
Baron
1978 (2) SA 510
(C) at 512G the court held that ss (1)(b) was
designed to protect an accused and especially an uneducated and
undefended accused
from the adverse consequences of an ill-informed
plea of guilty.”
[21] Can it be found, in
relation to the record of proceedings, that the accused indeed
understood the charge against her if the
court and also the
prosecutor first indicated that the charge is one of assault, but
then puts a charge of assault with the intent
to do grievous bodily
harm to the accused?
[22] The following
appears from the record:
“
COURT
:
Why do you plead guilty? Why do you say you want to plead guilty?
ACCUSED:
I did it your Worship.
COURT:
Why did you stab her?
ACCUSED:
Your Worship I
actually hurt him with this bottle and hit him.
COURT:
You actually did what?
ACCUSED
: I hit him with the
bottle. I did it at him and hit him your Worship.
COURT
: Did he sustain any
injuries as a result?
ACCUSED
: Yes he did sustain
injuries your Worship.
COURT
: Why did you stab her, or
hit her with the bottle?
ACCUSED
: We were at the public
hall and he refused me entry into the hall your Worship.
COURT
: Yes? Did you have a
right to stab her?
ACCUSED
: No your Worship.
COURT
: What made you stab her
when she refused you to enter the hall?
ACCUSED
: I was very angry your
Worship. I was very angry, because actually wished to get into the
hall. I was drunk, however, I was not
so much drunk so that I wasn’t
aware of my conduct your Worship.
COURT:
So you were under the
influence, but you were not too drunk as not to entertain what you
were doing when you stabbed him? Is that
what you are saying?
ACCUSED
: Yes.
COURT
: This court is satisfied
that you have pleaded guilty to all the elements of the offence of
which you are charged and you are therefore
found
GUILTY
as charged.”
[23]
In
S v NAIDOO
1989 (2) SA 114 (A),
and in particular
S v PHUNDULA AND OTHERS
1978 (4) SA 855 (T)
on page 861 Boshoff, AJP had the following to say on questioning in
terms of
section 112
of the
Criminal Procedure Act
supra
:
“
Die artikel
verg dat die landdros die beskuldigde ondervra met betrekking
tot die beweerde feite sodat vasgestel kan word
wat die beskuldigde
te sê het oor die gebeure wat neerkom op die pleeg van die
misdryf. Uit sy relaas sal die landdros kan
vasstel of hy inderdaad
erken dat hy die misdryf gepleeg het en of hy enige verdediging het
wat blyk uit sy relaas. Dit word stellig
nie van die landdros verwag
om alle denkbare verwere te ondersoek en uit te skakel nie. Dit blyk
uit ervaring dat 'n onontwikkelde
en ongesofistikeerde beskuldigde
wat besluit het om skuldig te pleit, geneig is om bevestigend te
antwoord op enige direkte en
leidende vraag met betrekking tot die
bestanddele van die misdryf wat hy sou gepleeg het. Die manier en
omvang van die ondervraging
van 'n beskuldigde sal noodwendig wissel
van geval tot geval, en sal in 'n baie groot mate afhang van
faktore soos die aard
van die aanklag teen die beskuldigde, die
ingewikkeldheid van die feite van die saak, en die aard en
omstandighede van die beskuldigde.
In die algemeen gesproke sou die
aangewese manier wees om die beskuldigde te vra wat gebeur het en hoe
die misdaad gepleeg is.
Die landdros kan dan toesien dat hy hom by
die punt hou en met vrae verseker dat hy ook aandag skenk aan
die bewerings in
die aanklag. Deur 'n beskuldigde op hierdie manier
te ondervra met betrekking tot die beweerde feite van die saak, word
daar aan
die aanklaer 'n geleentheid gegee om vas te stel of die
beskuldigde se relaas strook met die getuienis waaroor die Staat
beskik.
Die aanklaer mag besluit om sy getuienis ook voor die hof te
lê, want dit mag 'n groot verskil maak wat die vonnis
aanbetref.”
[24]
The
answers given by the accused clearly differs from the averments in
the charge-sheet. The accused says that she hit the victim
with a
bottle, whereas it is averred in the charge sheet that the victim was
stabbed with a broken bottle. This aspect was never
cleared up by the
magistrate. Also
ex facie
the
record, we do not know if the person the accused hit with the bottle
is indeed the person named in the charge sheet, nor if
the date and
place as averred in the charge sheet is indeed correct. Another
aspect that was never cleared up by the magistrate
is the injuries
suffered by the victim. Although actual injuries are not a
requirement to be convicted of assault with the intent
to do grievous
bodily harm, it will have bearing on the sentence imposed by the
court. No medical report (J88) was handed in either.
The state was
also not asked whether it accepted the plea as tendered by the
accused or if it was in accordance with the contents
of the facts at
its disposal.
[25] Since there is
nothing on record that the state accepted the plea as tendered by the
accused, it is clear that the magistrate
should have applied
section
113(1)
of the
Criminal Procedure Act
supra
,
as the accused
clearly did not admit all the allegations in the charge sheet.
Section 113(1)
provides:
“
If the court
at any stage of the proceedings under
section 112(1)(a)
or (b) or
112
(2) and before sentence is passed is in doubt whether the accused
is in law guilty of the offence to which he or she has pleaded
guilty
or if it is alleged or appears to the court that the accused does not
admit an allegation in the charge or that the accused
has incorrectly
admitted any such allegation or that the accused has a valid defence
to the charge or if the court is of the opinion
for any other reason
that the accused’s plea of guilty should not stand, the court
shall record a plea of not guilty and
require the prosecutor to
proceed with the prosecution: Provided that any allegation, other
than an allegation referred to above,
admitted by the accused up to
the stage at which the court records a plea of not guilty, shall
stand as proof in any court of such
allegation”
[26] In any event, the
accused’s answers do not satisfy the requirements for a
conviction on the charge of assault with the
intention to do grievous
bodily harm. The distinction between the crime of assault and assault
with the intention to do grievous
bodily harm was aptly re-stated in
S v ZWEZWE
2006 (2) SACR 599
(N) at 603B-D. For the
crime of assault with the intention to cause grievous bodily harm,
the offender must have the necessary
intention to cause the
complainant grievous bodily harm. The enquiry into the existence of
such intent requires consideration of
the following factors:
(a) the nature of the
weapon used and in what manner it was used;
(b) the degree of force
used and how such force was used;
(c) the part of the body
aimed at; and
(d) the nature of injury,
if any, which was sustained.
The list is not a
numerus
clausus
.
S v MAPASA
1972 (1) SA 524
(E);
S v
DIPHOLO
1983 (4) SA 757(T)
at 760E-G.
[27] Clearly the
questions posed to, and the answers by the accused did not establish
the requirements to infer the necessary intent.
[28] The court could also
not have been satisfied that the accused admitted all the allegations
in the charge sheet. This is apparent
from the record when the court
passed sentence on the accused and made the following remark:
“…
because
you were refused entry into a hall and definitely though it is not
clear before this court what actually occurred there,
that you had no
right at all to do what you did.”
[29] As indicated above,
after conviction the court also failed to inform the accused of her
rights to give evidence under oath
or call witnesses in mitigation of
sentence and also failed to hold an inquiry with regards to
Section
103
of the Fire Arms Control Act, Act 60 of 2000. The result of this
is that the accused is now deemed unfit to possess a firearm.
[30] Returning briefly to
the magistrate’s response to the initial reviewing Judge’s
enquiry as to whether the accused
did indeed plead guilty freely and
voluntarily, without influence, I am of the view that where such a
fact can be established directly
from the accused, it is not
sufficient, nor advisable to rely on the demeanour of the accused or
the ease with which he or she
answers the court’s questions,
especially where the accused is not represented. Although this
failure would not necessarily
mean that the trial was unfair, this is
but one of several omissions.
[31] Having regard to:
31.1 the court
a quo
’s
failure to properly inform the unrepresented accused of possible
competent verdicts before her plea;
31.2 the court
a quo’s
failure to properly inform the unrepresented accused of the
procedure that would follow in applying
section 112
of the
Criminal
Procedure Act
supra
;
31.3 the court
a quo’s
failure to make sure that the unrepresented accused understood what
the charge was that she was facing, and to which she ultimately
wanted to plead guilty, to wit either assault or assault with the
intention to do grievous bodily harm;
31.4 the probable
application of section 113 of the Act;
31.5 the failure to
inform the accused of her rights with regards to mitigation of
sentence;
31.6 the failure to hold
an inquiry in terms of the Fire Arms Control Act, 60 of 2000 as
mentioned above; and-
31.7 the fact that the
court informed the accused that it would explain her appeal and
review rights to her, but
ex facie
the record it does not
appear to have been explained at all, even though she did say that
she was satisfied,
I am of the view that the
accused did not have a fair trial and that a failure of justice
occurred.
[32] The conviction can
clearly not stand.
[33] The office of the
Director of Public Prosecutions, Free State was requested to consider
whether that office wanted to make
any submissions regarding this
matter before I deliver judgment. The DPP, rightly to my mind,
conceded that it appeared from the
record that the accused did not
have a fair trial.
[34] It remains to
consider what order should be made. This not a matter where the
matter can be remitted so that section 112(1)(b)
can simply be
followed, nor where a plea of not guilty in terms of section 113 of
the Act can merely be directed. The proceedings,
to my mind, must
start
de novo
, if the remittance will not impede the
applicant’s right that trial begin and be concluded without
unreasonable delay (section
35(3)(d) of the Constitution).
[35] The sentence has
been wholly suspended. The trial was concluded within days from the
incident. Due to the unavailability, initially,
of the acting
magistrate who presided at the trial, the review became protracted.
Six months has passed since the date of the alleged
crime. I am
satisfied that the delay of 6 months will not lead to a failure of
justice. To my mind the matter must be remitted
and the prosecuting
authority authorised to commence with proceedings
de novo
before another judicial officer if it so decides.
[36] In the result I make
the following order:
1. The conviction and
sentence are set aside.
2. Leave is granted to
the Director of Public Prosecutions, Free State, to reinstate
prosecution against the accused if it so decides.
3. In terms of
section
324
of the
Criminal Procedure Act, Act
51 of 1977 the matter is
remitted back to the Magistrate’s Court, Ficksburg to be tried,
de novo,
before another magistrate.
4. A copy of this
judgement must be sent to the magistrate, Ms N.I Sili, who presided
over the matter in the court
a quo
.
____________________
N. SNELLENBURG, AJ
I concur and it is
ordered.
_____________
L.J. LEKALE, J
/am
1
Section
35(3) of the Constitution of the Republic of South Africa 108 of
1996 provides:
‘
(3)
Every accused person has a right to a fair trial, which includes the
right-
(a)
to be informed of the charge with sufficient detail to answer it;
(b)
to have adequate time and facilities to prepare a defence;
(c)
to a public trial before an ordinary court;
(d)
to have their trial begin and conclude without unreasonable delay;
(e)
to be present when being tried;
(f) to choose, and be
represented by, a legal practitioner, and to be informed of this
right promptly;
(g) to have a legal
practitioner assigned to the accused person by the state and at
state expense, if substantial injustice would
otherwise result, and
to be informed of this right promptly;
(h) to be presumed
innocent, to remain silent, and not to testify during the
proceedings;
(i)
to adduce and challenge evidence;
(j)
not to be compelled to give self-incriminating evidence;
(k) to be tried in a
language that the accused person understands or, if that is not
practicable, to have the proceedings interpreted
in that language;
(l) not to be convicted
for an act or omission that was not an offence under either national
or international law at the time
it was committed or omitted;
(m) not to be tried for
an offence in respect of an act or omission for which that person
has previously been either acquitted
or convicted;
(n) to the benefit of
the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed
between the time that
the offence was committed and the time of sentencing; and
(o)
of appeal to, or review by, a higher court.’