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[2012] ZAFSHC 174
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S v Tsinyane (1/2012) [2012] ZAFSHC 174 (20 September 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 1/2012
In
the review between:
THE
STATE
and
SKANSE PETRUS
TSINYANE
_____________________________________________________
CORAM:
MOLOI, J
et
MOLEFE, AJ
JUDGEMENT:
MOLEFE, AJ
DELIVERED ON:
20 SEPTEMBER 2012
[1] On the 16 July 2012,
the accused person, Mr Skanse Petrus Tsinyane, residing at 1327
Mahlatswetsa, Excelsior was found guilty
of housebreaking with intent
to steal and theft, by the Magistrate Court, Excelsior. He was
sentenced to three years imprisonment.
The accused was not assisted
by a legal adviser. He had three different legal representatives who
withdrew as his attorneys prior
to the commencement of the trial.
[2] The accused was, when
the trial commenced, very uncooperative and did not want to
participate in the proceedings. He refused
to hear the charges
preferred against him and refused to plead. The presiding officer
recorded a plea of not guilty. The accused
elected to remain silent,
and left the dock and refused to go back into the dock. He was
invited by the presiding officer to take
a seat on the bench that was
provided next to the dock but the accused refused to take the seat.
He stood near a door facing the
grilled area (the cell) and refused
to abide by the court’s ruling that he must be seated as a
matter of courtesy.
[3] The accused kept on
repeating that he did not want to listen to the court. When the State
called their first witness the accused
interrupted the witness and
the presiding officer instructed that the accused be escorted to the
cells and the trial proceeded
in the accused’s absence.
[4] There was therefore
no cross-examination of the state witnesses by the accused. The
accused was only brought back to court so
that the last State witness
could identify him and after the accused was positively identified by
the witness, he was escorted
back to the cells, after he again
refused to participate in the proceedings. The state closed its case
after the last witness in
the absence of the accused.
[5] Judgment was handed
down in the accused’s absence and the accused was found guilty
of housebreaking with intent to steal
and theft.
[6] The accused was
brought back to court after he was convicted. The presiding officer
informed him of his conviction and asked
him to address him in
mitigation. The accused still refused to participate and informed the
presiding officer that the matter be
transferred to another court.
The accused was again taken back to the cells.
[7] The presiding officer
sentenced the accused to three (3) years imprisonment. The case was
remitted to this court in terms of
section 302 of the Criminal
Procedure Act 51 of 1977 (“the CPA”). The automatic
review served before Acting Judge F
W A Danzfuss. In his letter dated
24 August 2012, Danzfuss, AJ raised the following query:
“
At
no stage has the accused been specifically warned that the trial may
be finalised and he be convicted in his absence, neither
were the
risks involved, explained to him. He has also not during the
proceedings been brought back, but only after the final witness
has
testified.
At that stage his rights
in terms of section 160 of the CPA were not explained to him. See
also
S v MOKOA
1985 (1) SA 350
(OPD) at 354F –
355F.
[8] The presiding officer
responded as follows in his letter dated 13 September 2012:
“
I
thank you for having offered me the opportunity to furnish reasons/
or comment further.
In principle I have
nothing further to add as my reasons are more so contained in my
judgment. I have studied the case of
S v Mokoa
1985 (1) SA 350
(OPD).
I am fully acquainted with Sections 159 and 160 of the
CPA 51/1977, more so with Section 35(3) of the
Constitution
and have so been prior to the proceedings.
With respect, My Lord,
the accused cannot escape the fact that he was not going to be a
willing participant in the trial despite
him invited to do so. The
record reflects that he had about three (3) different legal
representatives and it is unlikely that he
(the accused) will believe
that his matter will not proceed on the trial date and that he be
acquitted or convicted. He conveniently
elected not to hear the
charges (see page 1 line 16). It is the risk he alone took not to
participate. He could have elected to
listen to the evidence but
chose not to do so.
Our courts are not “game
rooms”, but are Shrines of Justice where our calling to deliver
justice without fear, favour
or prejudice must at all times prevail.
If I study points one to
four that My Lord raised is it not sufficient for one to come to the
conclusion that we have here an accused
who has no respect for our
Constitution
and the Rule of Law. The cited case
supra
was dealt with prior to our
Constitution
and our court now
take into account the rights of the complainant (inter alia section
9, 14 and 25 of the
Constitution
).
The common denominator is
that the accused did not want to partake in the proceedings at all
and it would have made no sense to
escort him in and out of the
‘record’.
I humbly pray that the
conviction and sentence stand.”
[9] Section 159(1) of the
CPA states as follows:
“
If
an accused at a criminal proceedings conducts himself in a manner
which makes the continuation of the proceedings in his presence
impracticable, the court may direct that he be removed and that the
proceedings continue in his absence.”
[10] In the
Commentary
on Hiemstra’s Criminal Procedure
, it was said that the
court can have the accused removed if the accused’s conduct
made it impracticable to continue the proceedings
in his or her
presence. Upon his or her return, the accused received certain rights
which are set out in section 160 of the CPA.
The power to lock out
the accused should be exercised with caution. An accused who
deliberately hampers proceedings can be excluded
without further ado.
It is however, always desirable first to warn the accused and to have
the warnings noted on the record.
[11] In
R v PAULINE
1928 TPD 643
at 646, Tindall, decided that it is also desirable to
cause the accused to be brought back at a suitable time for the court
to
see whether they should realise that they should change their
attitude.
[12] In
S v MOKOA
1985 (1) SA 350
(O) at 354G – 355A, Smuts, J decided that it
may even be desirable, if at all possible, to allow the case to stand
down or,
to postpone it in order to allow the accused time to come to
his or her senses. The accused should also be informed pertinently
that the case can proceed in his or her absence. Given that real
prejudice can follow such removal, it is submitted that the presiding
officer should also inform the accused of such possible prejudice.
The events in
MOKOA
case underlines the fact that
patience is an indispensable component of judicial conduct.
[13] To remove an accused
during a trial and to proceed in his absence must be exercised by the
presiding officer with circumspection.
The provisions of section
159(1) of the CPA are made not merely in the interest of the
complainant or the accused, but in the interests
of the public and
for the administration of justice.
[14] In this case, it is
clear that the accused was very unco-operative and refused to
participate in the proceedings. He interrupted
the witness and
refused to take a seat. He conducted himself as to render the
continuance of the proceedings in his presence impracticable.
It is
my view that the presiding officer had very good reasons to remove
the accused. It is also clear from the record that the
presiding
officer failed to warn the accused that his behaviour might result in
his removal and in the trial proceedings in his
absence. In this
regard, it is my view that the proceedings were not in accordance
with justice and that the accused’s right
to fair trial was
denied.
[15] In the circumstances
the following order is made:
The conviction and
sentence of the trial court as on the 23 July 2012 are set aside.
___________________
D. S. MOLEFE, AJ
I concur.
______________________
K .J. MOLOI, J
/eb