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[2012] ZAFSHC 146
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S v Monyamane (68/2012) [2012] ZAFSHC 146 (12 July 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 68/2012
THE STATE
versus
NYAKALLO MONYAMANE
_____________________________________________________
CORAM:
DAFFUE, J
et
SNELLENBURG, AJ
_____________________________________________________
JUDGMENT
BY:
SNELLENBURG, AJ
_____________________________________________________
DELIVERED
ON:
12 JULY 2012
_____________________________________________________
[1] Nyakallo Monyamane, a
21 year old male, Lesotho citizen, was convicted and sentenced in the
Ladybrand district court (under
case nr 1448/2012), on a charge of
contravening
section 66(2)
of The
National Road Traffic Act, 93 of
1996
. The matter was subsequently sent to this court as an automatic
review in terms of
section 302
of the
Criminal Procedure Act, 51 of
1977
as amended.
[2] The matter was
received by this court on the 4
th
of April 2012 and
allocated to a judge in chambers to review the matter. The learned
reviewing judge made the following enquiries
to the presiding
magistrate in the court
a quo
:
“
Was the
accused’s ability to pay a fine properly established?
Was the sentence imposed not too
harsh considering (i) that the accused person was still a student at
the time of the commission
of the offence and thus had no income of
his own; (ii) was a youthful offender; (iii)was a first offender and
(iv) readily pleaded
guilty?”
The enquiries were
received by the magistrate’s court on 14
th
May 2012. The magistrate responded to the enquiries on
the 15
th
of May
2012 as follows:
“
Ad
Paragraph 2.1
With respect, the court had thoroughly
canvassed the accused’s ability to pay fine, his brother was
prepared to pay a deferred
for accused.. in court’s view it was
quite risky given the fact that accused’s brother has no
residential address in
Republic of South Africa country. Both accused
and his brother are Lesotho citizen. If accused’s brother
failed to honour
his obligation it will be difficult to track him
down.
Ad paragraph 2.2
In my view the sentence was not harsh,
the court did consider factors mentioned by the Honourable, but
seriousness of the offence,
its prevalence, and the fact that the
accused cross the border driving a vehicle without his parent’s
permission outweighs
his personal circumstances.
3. I respectfully submit that if the
Honourable is of the opinion that I over –emphasized
seriousness of the offence at the
expense of the accused. No harm or
prejudice suffered by the accused. I will recommend the sentence to
be reduced or set aside.
The fine was paid on the same day the
accused was sentenced.”
The reply by the
magistrate was received on the 6
th
of June 2012 and it is
now the duty of this court to review the matter and to determine
whether not only the conviction and sentence,
but the proceedings as
a whole, were in accordance with justice. In light of the view that I
take of this matter, I requested the
Director of Public Prosecutions,
Free State to consider the matter and to make such submissions as
that office deems meet. I must
record my appreciation for the
thorough consideration which was afforded to this matter by the
Deputy Director, Mr Hiemstra and
Mr D Pretorius and the written
submissions which were of great assistance to me.
[3] The following appear
from the original charge-sheet (J15): The name of the accused is
indicated as Nyakallo Monyamane Monyamane;
the accused’s
address is given as Lithabaneng; his nationality is being said to be
Maseru. On the typed charge-sheet the
name of the accused is
indicated as Nyakallo Monyamane and his nationality as Lesotho. Upon
further perusal of the original charge-sheet,
it is indicated that
the accused was arrested on the 12
th
of December 2011
(Monday) and had his first appearance on the 15
th
of
December 2011 (Thursday). I will return to this aspect later in the
judgement.
[4] The accused in this
matter was charged as accused nr 1 and a certain Onkabetse Modise
appeared as accused nr 2. At their first
appearance, both accused had
their rights to legal representation explained to them, both
indicated that they understood their
rights and both elected to
conduct their own defence. The prosecutor at the first appearance
indicated to the court that both the
accused person’s addresses
were confirmed and that the passport of accused nr 1 was in order and
that the state did not have
any objection to bail being granted to
the accused. The matter was postponed until the 3
rd
of
January 2012. Bail in the amount of R1000-00 was set for each of the
accused on condition that they would be present at 08:30
(03/01/2012)
and to remain in attendance.
[5] On the 3
rd
of January 2012, both accused appeared before court. Again both
accused confirmed that they would still conduct their own defence.
The charge was put to both accused, but before they were asked to
plead to the matter, the state withdrew the charge against accused
nr
2. Accused nr 1 was asked whether he understood the charge against
him, which he then confirmed. He then also indicated to the
court
that he was pleading guilty to the charge against him.
[6] The court then
proceeded to apply
section 112(1)(b)
of the
Criminal Procedure Act,
51 of 1977
, as amended. This does not appear explicitly from the
record, but I am willing to make that finding in favour of the
magistrate.
The magistrate did indicate to the accused that the court
will ask him some questions to satisfy itself that he is guilty as
pleaded.
The magistrate did however not explain the possibility of
section 113
of the
Criminal Procedure Act
supra
applying if
the accused did not admit all the allegations in the charge sheet.
[7] The accused admitted
that on the 12
th
of December 2011 he was the driver of a
Toyota Corolla, registration number M1265; that he was driving this
vehicle on a public
road; that the vehicle belonged to his mother and
that he drove the vehicle without her consent. He also indicated to
court that
the reason why he took the vehicle and drove off was due
to the fact that someone provoked him at church. This aspect was not
cleared
up by the court.
[8] The court then
proceeded to ask the accused whether he knew it was wrong and
unlawful to drive a vehicle without the consent
of the owner, and
also whether in doing so he was contravening the provisions of
section 66(2)
of Act 93 of 1996. On both occasions the accused
answered in the affirmative.
[9] The prosecutor
indicated that the state accepts the plea as tendered by the accused
and the magistrate convicted the accused
as charged. The state did
not prove any previous convictions.
[10] The court proceeded
to explain the accused’s right to give evidence in mitigation
of sentence and also indicated that
the accused must address the
court in terms of section 35 of Act 93 of 1996
supra
as to why
the court should not endorse his driver’s licence.
[11] The accused elected
to testify under oath. Upon taking the oath, the accused indicated
that his name is Nyakallo Confidence
Monyamane. The accused testified
that he is single; father of two children and that he is a student.
The accused also indicated
to court that he realised that he made a
mistake and that will accept the judgement of the court. He further
indicated that he
would like to call his mother and brother to
testify on his behalf. The prosecutor did not cross-examine the
accused and the court
then asked the accused if he can give any
reason why the court should not endorse his licence in terms of
section 35
supra
. The accused indicated that he has none.
[12] The accused’s
mother, Maneo Monyamane testified next. She asked the court to give
the accused a sentence which is blended
with mercy. She asked the
court to impose a wholly suspended sentence as he is still schooling
and she also indicated that she
has no idea as to what amount the
accused would be able to pay, should the court impose a fine. She did
testify that her children
normally drive around with her car and that
she was under the impression that he would return later, but he did
not. It was only
when the accused’s sister phoned her that she
came to know of his whereabouts. The rest of her evidence is hearsay
evidence
and I will not deal with it further.
[13] The accused’s
brother, Thabo Steven Monyamane testified next. He testified that his
brother is an A-grade student (meaning
that he obtains distinctions
in most of his subjects). He also on more than one occasion indicated
that they did not wish to proceed
with the charges against the
accused. I understand his evidence to be that they merely wanted the
police to assist them in apprehending
the accused so that he would
not run away and they could take him back home. He further testified
that the reason the accused wanted
to run away was because he was
afraid of his parents, for the punishment he might get on returning
to their home. The witness then
further reiterated that he was not
standing there on his own accord, but also on the family’s
behalf and that they did not
wish to have any charges against the
accused. He, along with his family also paid accused’s bail.
[14] The court then asked
the accused’s brother how much they (he and his father) were
prepared to pay as a fine, since they’ve
got a company. The
witness then told the court that he would not be able to say, since
the company was very small and that they
were still only starting.
The magistrate then made the following remark: (I quote from the
record)
“
But the fact
that you mentioned the company, that means you are well off. - - No
we will not say we are well off, but I do believe
that an
entrepreneur is somebody who is still struggling to actually break
through. We haven’t break even yet.”
The court then proceeded
to ask the witness again how much they would be able to pay and the
witness responded by requesting the
court to caution and discharge
the accused.
[15] The court further
asked the witness about endorsing the accused’s driver’s
licence. The witness indicated to the
court that the accused really
needed his driver’s licence, as he, from time to time, drives
to the Republic to buy some protective
clothing for the shop and
would need his licence for that purpose.
[16] The prosecutor had
only one question in cross-examination pertaining to what discipline
it will instil on the accused if the
court should caution and
discharge the accused. The witness responded to say that the family
discipline that the accused is already
getting is quite severe on
him.
[17] The court then
proceeded to sentence the accused and I quote the sentencing of the
accused by the court:
“
Mr
Monyamane, the Court has listened to your mitigating factors that you
placed before Court and you called two witnesses and the
Court will
impose a sentence that is in line with your personal circumstances
and also taking into consideration the seriousness
of the offence and
the interest of the community.
After careful consideration the Court
is of the opinion that this one would be a suitable sentence:
You are sentenced
FOUR THOUSAND
RAND (R4000.00) OR EIGHT MONTHS IMPRISONMENT
and in terms of
section 35 of Act 93 of 1996 the accused’ driver’s
licence is
ENDROSED FOR SIX (6) MONTHS
not to drive
here in the Republic of South Africa for six (6) months.”
[18] The court then
proceeded to explain to the accused his rights to appeal.
[19] I want to make the
following remarks with regards to the sentence imposed by the
magistrate:
19.1 In his response to
the reviewing judge’s enquiries, the magistrate said that the
court thoroughly canvassed the accused’s
ability to pay a fine,
but this is simply not the case. No question to that effect was put
to the accused himself. His mother testified
to the effect that she
was unable to say what amount he (the accused) could pay and asked
the court to impose a wholly suspended
sentence. His brother
testified also that he is not able to say what amount they (the
brother and father ironically) would be able
to pay and asked the
court to caution and discharge the accused. The court itself made the
inference, wrongfully in my view, that
because the accused person’s
family owned a business, they were well off. But sentencing must
focus on the accused and his
personal circumstances and in the
instance of imposition of a fine his (the accused person) ability to
pay the fine.
The magistrate
proceeded to apply
section 35
of the
National Road Traffic Act, 93
of 1996
. The Act clearly sets out when section 35 is applicable.
Section 35 states:
‘
35 On
conviction of certain offences licence and permit shall be suspended
for minimum period and learner's or driving licence
may not be
obtained
(1) Subject to subsection (3), every
driving licence or every licence and permit of any person convicted
of an offence referred
to in-
section 61 (1)
(a)
,
(b)
or
(c)
, in the case of the death of or
serious injury to a person;
(a
A
)
section 59 (4), in
the case of a conviction for an offence, where-
a speed in excess of 30 kilometers
per hour over the prescribed general speed limit in an urban area
was recorded; or
a speed in excess of 40 kilometers
per hour over the prescribed general speed limit outside an urban
area or on a freeway was
recorded;
(
b
) section 63 (1), if the court finds that the offence was
committed by driving recklessly;
(c)
section 65 (1), (2)
or (5), where such person is the holder of a driving licence or a
licence and permit, shall be suspended
in the case of-
(i) a first offence, for a period of
at least six months;
(ii) a second offence, for a period of
at least five years; or
a third or subsequent offence, for a
period of at least ten years,
calculated from the date of sentence.
(2) Subject to subsection (3), any
person who is not the holder of a driving licence or of a licence and
permit, shall, on conviction
of an offence referred to in subsection
(1), be disqualified for the periods mentioned in paragraphs (i) to
(iii), inclusive, of
subsection (1) calculated from the date of
sentence, from obtaining a learner's or driving licence or a licence
and permit.
(3) If a court convicting any person
of an offence referred to in subsection (1), is satisfied, after the
presentation of evidence
under oath, that circumstances relating to
the offence exist which do not justify the suspension or
disqualification referred to
in subsection (1) or (2), respectively,
the court may, notwithstanding the provisions of those subsections,
order that the suspension
or disqualification shall not take effect,
or shall be for such shorter period as the court may consider fit.
(4) A court convicting any person of
an offence referred to in subsection (1) shall, before imposing
sentence, bring the provisions
of subsection (1) or (2), as the case
may be, and of subsection (3) to the notice of such person.
(5) The provisions of section 36 shall
with the necessary changes apply to the suspension of a driving
licence or a licence and
permit in terms of this section.’
As is apparent, the court
can only apply section 35 once an accused has been convicted of
contravening sections 59, 61, 63 or 65
of the said act. Therefore it
follows that if the conviction stands, that this part of the sentence
should be set aside.
The magistrate merely
mentions the factors taken into account for purposes of sentencing
and proceeds to give sentence. In my
view, should the conviction
stand, the sentence is strikingly inappropriate. The magistrate
failed to take into consideration
that the accused is a first
offender and pleaded guilty readily; the fact that the complainant
did not really want to proceed
with the charge against the accused
and also the fact that he is still a student and it is not clear
what income he has of
his own. He also has two children.
Furthermore, the accused often used the vehicle with consent and
the complainant (who did
not want to proceed with the charge) is
his immediate family.
[20] To determine whether
the conviction is in order, the point of departure is to consider the
original charge-sheet (J15). I am
mindful of the heavy burden that
prosecutors have regarding case load. Notwithstanding the
afore-mentioned consideration, the drafting
of the charge-sheet left
much to be desired, with respect, for the following reasons:
20.1 The charge sheet
fails to allege the element of ‘intent’. I agree with Mr.
Pretorius that negligence is not sufficient
for this offence (See
S
v VAN WYK
1974 (1) SA 36
(A) at 41G).
20.2 From the record it
appears that the name of the accused is not Nyakallo Monyamane
Monyamane as reflected on the charge-sheet,
but Nyakallo Confidence
Monyamane. This was never amended.
20.3 At the first
appearance it was indicated to the court that the address of the
accused was confirmed, yet the J15 only states
Lithabaneng.
20.4 The nationality of
the accused is indicated as ‘Maseru’. Surely this cannot
be correct.
The date of arrest is
indicated as 12 December 2011 and the date of first appearance is
indicated as 15 December 2011.
[21] The annexure to the
J15 which contains the actual charge that was preferred by the sate
against the accused, is also in my
view incomplete. It reads as
follows:
“
That the
accused is guilty of contravention of:
Sec 66(2) Act 93/1996
In that the accused upon or about
12/12/2011
At/near/on SHELL GARAGE
A place/public road in the said
district wrongfully rode in or drove
vehicle TOYOTA COROLLA with
registration M1265 without the
consent of the owner, operator or
person in lawful charge thereof.”
Nowhere in this annexure
is any reference made to the district where the offence allegedly
took place. Even if one were to read
this annexure with the J15, the
mentioning of Ladybrand in the J15 pertains to where the trial would
be conducted and not necessarily
where the offence was committed. Up
to the point where the court convicted the accused, no evidence was
placed before court that
the offence was indeed committed in
Ladybrand or in the district over which the court has jurisdiction.
[22]
As the annexure stands now, no reference is made to the penalty
clause of the relevant Act, section 89(1). Also no reference
is made
to section 89(6), which indicates the relevant penalty for
contravening section 66(2) of the said Act. Section 66(2) on
its own
merely creates a prohibition and not an offence. See
S
v LEPHATSWA EN ANDERE
1973
(2) SA 96
(O) at 98B.
[23]
Sentencing forms just as much a part of the criminal proceedings and
should therefore not be neglected, or, as in this case,
be omitted
from the charge-sheet. Keeping in mind that the accused did appear in
person and also the fact that
section 112
of the
Criminal Procedure
Act
supra
was
placed on the books to protect undefended accused persons, can one
say that the omission of the relevant sections, as mentioned
above,
does not infringe on the accused’s right to a fair trial as
entrenched in
section 35(3)
1
of the
Constitution
of the Republic of South Africa
,
Act 108 of 1996?
[24]
Returning to the fact that the accused was arrested on 12
th
December
2011 and only appeared on 15
th
December
2011, it may well be that the accused was arrested outside court
hours on the 12
th
of
December 2011, but the record lacks any explanation whatsoever to
that effect. Nowhere is there any note by the magistrate at
the first
appearance nor at the trial as to why the accused was only brought to
court on the 15
th
of
December 2011. Section 35(1)(
d
)
of the Constitution
supra
states:
“
35
Arrested, detained and accused persons
`(1) Everyone who is arrested for
allegedly committing an offence has the right-
…
(d)
to be brought before
a court as soon as reasonably possible, but not later than-
(i)
48 hours after the arrest; or
(ii)
the end of the first court day after the expiry of the 48 hours, if
the 48 hours expire outside ordinary court
hours or on a day which is
not an ordinary court day;”
2
[25] Due to the lack of
any evidence as to why the accused was only brought to court on the
15
th
of December 2011, I cannot find there was no
infringement on the rights of the accused as set out in section 35 of
the Constitution
supra
. Mr Pretorius concedes that the
accused’s right to be brought before a court within 48 hours
seems to have been infringed
in light of the content of the
charge-sheet. He however submits that this does not
per se
lead to the inference of an unfair trial. The concept of a fair trial
embraces a factual enquiry. He also argues that it does not
appear
from the record that this infringement caused any prejudice to the
accused in the conduct of his trial (See S v Mashinini
(502/11)
2012
ZASCA 1).
I agree that this infringement in isolation does not appear
to have caused any prejudice. When considered cumulatively with the
other irregularities, it may however lead to the inevitable
conclusion that the accused did not have a fair trial.
[26] As touched on, one
or even more of the irregularities referred to above may, depending
on the facts and circumstances of each
individual case, not be such
as to lead to a finding that an accused person’s right to a
fair trial was infringed. In light
of the present circumstances, I am
for the reasons stated above and those that follow, of the opinion
that the cumulative effect
of the irregularities in the matter are
such that it cannot be found that the accused had a fair trial.
[27] In light of the fact
that the annexure to the charge-sheet does not disclose an offence
and is in fact fatally defective disposes
of this matter. The state’s
failure to prove whether the offence was committed in the
jurisdictional district of the court
a quo
and the failure by
the state to give any explanation on record as to why the accused was
only brought to court on the 15
th
of December 2011 simply
compounded the matter and would also, cumulatively, have merited the
finding that the accused did not have
a fair trial. I am therefore of
the view that the proceedings as well as the conviction was not
according to justice and should
therefore be set aside.
[28] This conclusion
renders it unnecessary to deal with the sentence of the accused, save
for the remarks already made.
[29] Mr Pretorius
submitted that, due to the specific facts and circumstances of this
matter, no order should be made that the matter
be remitted to the
magistrate’s court to start the trial
de novo
before
another magistrate. An order should be made that the accused should
be reimbursed for the money paid towards the fine. I
agree.
In the result I would
make the following order:
The conviction and
sentence of the accused, under Ladybrand case nr 1448/2011, is set
aside;
The fine in the amount
of R4000.00 (FOUR THOUSAND RAND) which has been paid must be
reimbursed.
____________________
N. SNELLENBURG, AJ
I concur and it is so
ordered.
______________
J.P. DAFFUE, J
Submissions on behalf of
the Director of Public Prosecutions,
Free State:
The Deputy Director of
Prosecutions, Adv JHS Hiemstra SC
assisted by Adv D
Pretorius.
NS/sp
1
Juta
Law Online Publications:
(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.
2
Juta
Law Online Publications