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[2011] ZAFSHC 213
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S v Kholoane (570/2010) [2011] ZAFSHC 213; 2012 (1) SACR 8 (FB) (10 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 570/2010
In the review between:-
THE STATE
and
ITUMELENG PINKI
KHOLOANE
_____________________________________________________
CORAM:
RAMPAI, J
et
FISCHER,
AJ
_____________________________________________________
JUDGMENT
BY:
RAMPAI, J
_____________________________________________________
DELIVERED
ON:
10 FEBRUARY 2011
_____________________________________________________
[1] The matter came by
way of a special review in terms of section 304(4)
Criminal Procedure
Act, No. 51 of 1977
. The accused was convicted of four counts of
theft. The four counts were all taken together as one offence for the
purpose of sentence.
The district magistrate then imposed on her a
fine of R5 000,00 or 90 (ninety) days imprisonment in default of
payment.
[2] The accused pleaded
guilty to all the charges. However, she was not questioned in terms
of
section 112(1)(b)
Criminal Procedure Act, No. 51 of 1977
. Instead
she was summarily convicted on her plea and then sentenced. The
district magistrate’s explanation for dispensing
with the
questioning was that she acted in terms of subsection (1)(a) and not
subsection (1)(b) in convicting the accused.
[3]
The distinction between the two legs of
section 112
has been
discussed and drawn in various decided cases. The first leg, in other
words subsection (1)(a), applies to minor crimes,
which ordinarily
attract relatively lenient sentences. Here the judicial questioning
of the accused is not compulsory. However,
the sentencing options are
limited. The accused cannot be subjected to direct imprisonment. Such
a form of punishment is impermissible.
That is the first limitation.
The detention of the accused has to be coupled with the option of a
fine. The maximum fine which
can be imposed in terms of the
subsection is currently R1 500,00. That is the second limitation. The
subsection is sparingly used
and only in cases where the court is
certain that summarily convicting the accused on his or her bare plea
will not cause an injustice
–
S
v ADDABBA
et alii
1992 (2) SACR 325
(T) at 332 e – f.
[4] The second leg of the
section, in other words subsection (1)(b), applies to serious crimes
which ordinarily attract comparatively
severe sentences. Here the
judicial questioning of the accused is peremptory. A sentence of
direct imprisonment without the option
of a fine can be imposed. The
amount of a fine may exceed R1 500,00. In practice the subsection is
frequently used even in cases
where the accused persons are charged
with trivial crimes.
[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 512 G
the court held that subsection
(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.
[6] Before the
questioning in terms of subsection (1)(b) can be jettisoned; before
subsection (1)(a) can be invoked and before an
unrepresented accused
can be convicted on her unexplained plea of guilty, a court has to
form an opinion that the charge concerned
is a minor crime; that the
accused would have the option of paying a fine to stay out of
correctional facility and that such a
fine would not exceed the
statutory maximum limit. These then are the crucial segments of the
jurisdictional fact. The court has
to silently consider sentence
before convicting the accused. Herein lies the uniqueness of the
questionless or passive procedure.
Therefore the sentence the court
proposes imposing will determine which subsection the court should
apply in the case at hand.
[7] It follows from the
aforegoing that the court should proceed in terms of subsection
(1)(a) to convict the accused only in a
case where it intends
sentencing the accused in a manner which is squarely compatible with
the foundation of its jurisdiction as
outlined in the preceding
paragraph. Where the court intends imposing a sentence which is
incompatible with such foundation, it
would be irregular to proceed
in terms of subsection (1)(a).
[8]
The request of the district magistrate, in this instance, is that the
conviction be confirmed on special review and that only
the sentence
should be rescinded. The district magistrate was of the view that the
accused had suffered no real prejudice because
the excessive fine was
easily and immediately paid for her release. The learned district
magistrate obviously takes a narrow view
of the problem. The problem
is bigger than she reckons. It is not a simple matter of correcting
the sentence only by downward adjustment
of the excessive fine
imposed on the accused. The issue is more complex than that. It
fundamentally affects the very foundation
of the verdict. It is the
lawfulness of the conviction and not so much the unlawfulness of the
sentence which is in issue here.
The sentence flows from the
conviction. Because it does, it would be wrong to simply adjust the
sentence
ex post facto
without enquiring into the lawfulness of the
conviction from which the sentence stemmed -
S v
ADDABBA; S v NGEME; S v VAN WYK
1992 (2) SACR 325
(T)
at
330 a – b.
[9] Apparently the
district magistrate did not know the statutory limit of a fine to be
imposed in terms of subsection (1)(a). I
hasten to say it is not
something to be ashamed of for even the best of the jurists do not
know all there is to know about law.
Law is an immensely vast and
intricate vocation. This is certainly not the case of a magistrate
who knew the limit but merely forgot
to act in accordance with her
knowledge on account of an inadvertent error. It is unlikely that she
fell in that category. This
is so because besides this particular
case, she made similar mistakes in connection with three other cases.
The excessive fine
imposed, not once but four times, tended to
demonstrate that she did not actually form the requisite opinion that
she would impose
on the accused a sentence consisting of a fixed term
of detention coupled with an inexcessive fine, which fine would not
exceed
the prescribed maximum limit. The formation of a judicial
opinion that the sentence would not exceed the limit applicable to
the
fine, is one of the defining cornerstones for the invocation of
subsection (1)(a). Since this dimension of the jurisdictional fact
was missing, the district magistrate could not have properly acted in
terms of subsection (1)(a) as she purported to do.
[10] There is a fixed
cut-off point of R1 500,00 between subsection (1)(a) procedure where
conviction, without judicial questioning,
can properly follow a bare
plea and subsection (1)(b) procedure, where conviction without
judicial questioning, cannot properly
follow a bare plea. Where a
magistrate is of the opinion that a fine, in excess of R1 500,00
limit, is justified, she or he is
incompetent to find an accused
guilty on the strength of an accused’s mere plea.
[11] The excessive fine
is not the only ground in this review on which the conviction can be
challenged. The district magistrate
reckoned that the strongly
aggravating factor against the accused, besides the number of her
acts of stealing, committed in four
different stores in Bloemfontein
on 6 October 2010, was that she was a member of an organised criminal
syndicate from Lesotho,
which specialised in shoplifting and that the
accused had entered this country for the sole purpose of furthering
that objective.
I do not know what the exact source of such material
was, because the accused was not questioned and no witness was called
to give
any evidence before the verdict was announced. However, that
is not where I am getting at.
[12] The point I want to
make is this: If the accused was indeed shown to be a member of such
a foreign syndicate, then the charges
were not trivial, but very
serious matters. That the magistrate herself regarded the case as a
very serious one, is further demonstrated
by the huge amount of the
fine imposed. The actual fine is more than threefold the prescribed
maximum amount. Seeing that the district
magistrate saw the case in
such a serious light, she should have used subsection (1)(b) and not
subsection (1)(a). The former was
precisely designed to deal with
cases where the accused pleads guilty to serious crimes. By applying
the latter, the district magistrate
erred.
[13] Although the
district magistrate appreciated the gravity of the crimes, she
nonetheless used a procedure exclusively created
for minor crimes.
The conviction of the accused without questioning in terms of
subsection (1)(b) was so procedurally irregular
it cannot be redeemed
in any way least by simply taking any corrective intervention which
is restricted to the sentence only -
S v ADDABBA;
S v
NGEME; S v VAN WYK
1992 (2) SACR 325
(T). In my view her
failure to appreciate the fundamental distinction between the
procedure in terms of subsection (1)(a) and the
procedure in terms of
subsection (1)(b) constituted a specially reviewable misdirection. In
the circumstances I am disposed to
annulling both the conviction and
the sentence.
[14] The excessive fine
was R3 500,00 more than the cut-off limit between the two procedures.
Therefore the discrepancy was enormous.
But the prejudice in this
case went beyond the financial consideration. It cannot be redressed
by simply refunding the excess to
the accused. The court below did
virtually nothing to ascertain whether the accused was improperly
induced or not to plead guilty.
Instead of questioning the accused in
order to eradicate possibilities inconsistent with her plead and to
pronounce an informed
verdict, the court merely inferred thieving
from mere possession. A possessor of stolen goods is not always
necessarily the original
thief. In certain circumstances such a
possessor might even have carried the stolen goods without any
involvement in their actual
stealing and without any knowledge that
they were stolen.
[15] It has been held
that where a court deals with an undefended and unsophisticated
accused and proposes to impose a sentence
substantially in excess of
the statutory limit as laid down in subsection (1)(a), it remains not
only desirable but essential as
well, for the sake of fair
administration of justice, that the court nevertheless questions the
accused as if subsection (1)(b)
applies -
S v ADDABBA
et al
,
supra
, at 332 b – d. In my view, the
configuration of the two procedures is undesirable. The important
distinction between the
two may thereby be blurred. If subsection
(1)(a) is not strictly complied with sentence-wise, then subsection
(1)(b) should not
be used as a corrective procedure for a sentence
which does not fully fall within the scope of subsection (1)(a).
[16] The court has to
decide whether to use subsection (1)(a) or subsection (1)(b). There
is no
via
media somewhere between the two for a hybrid
procedure. I venture to say that the court which applies subsection
(1)(a) should
only import the tool of judicial questioning into the
subsection provided the fine component of the sentence it proposes
imposing,
does not exceed the statutory limit. In other words, if the
matter falls squarely within the ambit of subsection (1)(a) the court
is at liberty to pose certain judicial questions to the accused for
the purpose already stated elsewhere. Conversely, if the proposed
fine exceeds such limit, however marginal the excess may be, then,
the court should rather completely deal with the matter in terms
of
subsection (1)(b) instead of using subsection (1)(b) to perfect
irregular use of subsection (1)(a) procedure. In that way there
will
be no undesirable grey areas created.
[17] The way the court
below went about lacked procedural fairness and indeed substantive
fairness. These are the two hallmarks
of justice. In the
circumstances it cannot be said that the guilt of the accused in this
case was established beyond reasonable
doubt by means of her dry and
bare plea.
[18] Accordingly I make
the following order:
18.1 The conviction and
sentence are set aside.
18.2 The plea of guilty
as originally tended by the accused stands.
18.3 The case is remitted
to the district court.
18.4 The district
magistrate concerned is directed to proceed further in terms of
section 112(1)(b)
Criminal Procedure Act, No. 51 of 1977
.
______________
M.H. RAMPAI, J
I
concur.
________________
P.U. FISCHER, AJ
/sp