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[2011] ZAFSHC 134
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Sehlabaka and Anothe v S (A67/2010) [2011] ZAFSHC 134 (25 August 2011)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal No. : A67/2010
In
the appeal between:
P SEHLABAKA
…......................................................................
1
st
Appellant
V MOFOLO
….............................................................................
2
nd
Appellant
and
THE STATE
….............................................................................
Respondent
CORAM
:
MOLOI, J
et
KUBUSHI, AJ
HEARD ON:
16 MAY 2011
_____________________________________________________
DELIVERED ON:
25
AUGUST 2011
_____________________________________________________
KUBUSHI, AJ
[1] This is an appeal
against the judgment of the Regional Magistrate, Senekal. The
appellants were convicted on three counts of
corruption in
contravention of
section 4
(1) (a) of the
Prevention and Combating of
Corrupt Activities Act, 12 of 2004
. On the 19 March 2009 the
appellants were each sentenced to four years imprisonment. The
offences having been taken together for
the purpose of sentence.
Leave to appeal was refused by the trial court
and, on petition, granted by this court. The appeal lies against the
convictions
and the sentences imposed.
[2] The facts of the case
are that on the 12 or 13 June 2007 appellants were arrested at
Senekal for unlawfully soliciting money
from the complainants,
namely, three Chinese businessmen, trading in the town of Senekal. It
was alleged that the appellants, who
were policemen from the Crime
Intelligence Division in Ficksburg, whilst performing their duties of
checking the validity of the
permits of foreigners in the town of
Senekal, approached the three complainants and demanded money from
them claiming that their
permits were not valid when in fact they
were. The Chinese reported the case to the police and the appellants
were arrested. The
complainants identified the appellants by the
motor vehicle they were driving on the day in question - a white
double-cab bakkie
with registration number CVR 679 FS.
[3] The appellants denied
having solicited money from the complainants. They conceded that on
the day in question they were working
at Senekal, and in the vicinity
of the complainants’ businesses, checking the permits of
Chinese and Pakistan foreigners.
They argued that they neither
demanded nor received money from any one on that day. They alleged
that they were investigating a
case for the Department of Home
Affairs and handed in a copy of the report of that investigation to
the court. During the proceedings,
the trial court made use of the
services of a Chinese interpreter.
[4] In order to curtail
the proceedings, the appellants, through their legal representative,
allowed the state to hand in the affidavits
of Thabang Radebe, Simon
Lesetja, Simon Sephapo, the police officers who investigated the case
and arrested the appellants, and
Mmamodiehi Violet Mosiuoa, an
employee at Creeks Clothing Shop a Chinese shop in Senekal, as
evidence. The affidavits were also
formally admitted by the
appellants and the trial court admitted them as evidence into the
record as exhibit B, C, D and E respectively.
[5] On the convictions,
the appellants’ counsel argued that the state failed to prove
its case beyond reasonable doubt and
based his argument on four
points, namely that:
the state failed to use
a competent interpreter as a result of which the interpretation was
not accurate and could not be relied
on. In the heads of argument,
we were referred to a number of passages in the record where the
interpretation was inaccurate.
The counsel submitted that the
interpretation was so defective that it rendered the proceedings
invalid;
dock identification was
used to identity the appellants. The appellants stated in the heads
of argument that the complainants
could not have been able to
identify them as it was the first time they saw them on the day of
the incident;
the trial court accepted
the hearsay evidence of the police officers which was presented on
affidavit; and
the trial court failed
to apply the cautionary rule in respect of the complainants who were
single witnesses as regards the commission
of the offences.
[6] In respect of
sentence, appellants, in their heads of argument, contented that the
sentence of direct imprisonment was inappropriate.
They argued that
Act 12 of 2004 specifically make allowance for fines even in serious
offences decided in the High Courts. In the
light of the amount of
money involved in this case and the fact that the appellants were
first offenders, the trial court erred
by not imposing a sentence of
a fine.
[7] At the hearing of the
appeal, counsel for the respondent did not argue the matter and
conceded that he will abide the decision
of the court. In the
respondent’s heads of argument, it was submitted in respect of
the convictions, that on the reading
of the record it was apparent
that the complainants’ evidence had been fully set out. It was
conceded that the dock identification
was used to identify the
appellants but that the second complainant (Cheng Ming Yu) was able
to identify the appellants because
the incident that happened to him
happened for about 20 minutes and that the appellants were wearing
civilian clothes. According
to the respondent the appellants
corroborated the evidence of the complainants by admitting that at
the relevant time they were
working in the town of Senekal and in the
vicinity of the complainants’ businesses.
[8] Four questions in
respect of the conviction arose: firstly, whether the use by the
trial court of an incompetent interpreter
rendered the proceedings
invalid. A question which if answered in the positive will render the
other questions academic; secondly,
whether the state proved the
identity of the appellants beyond reasonable doubt; thirdly, whether
the trial court erred in admitting
the evidence presented by the
state on affidavits into the record as evidence; and fourthly,
whether the trial court erred in failing
to apply the cautionary rule
in respect of the evidence of the complainants as single witnesses in
respect of each count.
[9] The right of an
accused person to understand the proceedings at all times is a
prerequisite of a fair trial. In terms of section
35 (3) (k) of the
Constitution, Act 108 of 1996:
‘
Every
accused person has a right to a fair trial, which includes the right
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.’
The requirements of a
fair trial will, therefore, be satisfied if the trial is conducted in
a language with which the accused person
is sufficiently conversant,
or if the proceedings are interpreted into such a language. See
MPONDA v S
[2004] 4 All SA 229
(C) at 234f.
[10] In this instance the
appellants were black South Africans. The record does not state which
language they spoke or were conversant
with. The appellants were
employed in Ficksburg and sometimes carried out their work in
Senekal. Both towns are in the Free State
Province. The main language
spoken in the Free State Province and as such in Ficksburg and
Senekal is Sesotho. Their surnames are
also those of people belonging
to the Basotho ethnic group. I presumed therefore that the appellants
spoke Sesotho and/or were
conversant with the Sesotho language. The
complainants on the other hand were Chinese. As
per
the record
they spoke Chinese and understood very little English let alone
Sesotho. One of the complainants even testified that
his brother was
the one who dealt with customers in his shop.
[11] The trial court
employed the services of two interpreters. A casual interpreter, Ms
Judy Lin, translated the evidence of the
complainants from Chinese to
English and
vice versa
; and a permanent interpreter, Mr
Konxela, interpreted the English into the language with which the
appellants were conversant
vice versa
. As
per
the
record, because Ms Lin was a casual interpreter, when she was sworn
in, the magistrate specifically enquired into her ability
to
understand the language spoken by the complainants, namely, Chinese
and found that she would be able to interpret. And this
she did.
[12] However, the
appellants were not satisfied with Ms Lin‘s translation. They
contended that Ms Lin was incompetent. According
to them she seemed
not to understand the proceedings and did not interpret correctly. In
the heads of argument they referred us
to a number of passages in the
record where the interpretation was inaccurate or did not make sense.
The question that had to be
answered was whether, as argued by the
appellants, Ms Lin was a competent interpreter or not.
Section 6
(2)
of the
Magistrates’ Courts Act 32 of 1944
, provides that:
‘
if, in a
criminal case, evidence is given in a language with which the accused
is not in the opinion of the court sufficiently conversant,
a
competent interpreter shall be called by the court in order to
translate such evidence into a language with which the accused
professes or appears to the court to be sufficiently conversant, …’
[13] The meaning of a
“competent” interpreter has been a subject of many court
decisions. In
S v ABRAHMS
1997(2) SACR 47 (C) at 49h –
i it was stated that an interpreter who does not appear to understand
the language that the
accused person is conversant with is not
competent to provide that service. In
S v NDALA
1996
(2) SACR 218
(C) at 221a – c it was held that a competent
interpreter must be able to give a “true and correct”
interpretation
of evidence as is implicitly guaranteed by section
25(3) (i) of the Interim Constitution (the current section 35 (3) (k)
of the
Constitution). The principle should always be that the accused
person must be able to understand the proceedings at all times.
[14] The issue of the
competence of the interpreter never arose
per se
during this
trial. There is no indication on the record that the appellants had a
concern about Ms Lin’s interpretation. Neither
their legal
representative nor the appellants objected to the interpretation.
There was no indication whether the appellants did
not understand the
interpretation or not. The case proceeded normally with no
interruptions by the appellants or their legal representative.
The
magistrate referred to the issue only during his judgment and
concluded that the contradictions were negligible and accepted
the
evidence as interpreted. At page 132 par 10 -15 of the record he
ruled as follows:
‘
Ten spyte van geringe
afwykings, loop dit soos ‘n goue draad deur die weergawe van al
drie hierdie Chinese getuies; dat die
twee beskuldigdes hulle as
polisiebeamptes voorgedoen het wat hulle inderdaad is; dat hulle die
dokumente nagegaan het; dat hulle
beweer het die dokumente is vals;
en dat hulle geld geëis het daarvoor. By hierdie getuienis het
hulle al drie konsekwent
gebly.’
[15] My opinion is that
the magistrate erred in coming to this conclusion. The appellants
were correct, Ms Lin was not a competent
interpreter. The passages
from the record which we were referred to by the appellants could not
be regarded as minor contradictions.
The passages are an indication
that Ms Lin might have not understood the proceedings or the language
she was expected to interpret
into. She frequently did not give a
true and correct interpretation. Indeed, when reading the record I
did get an impression that
she did not understand the language which
she was expected to interpret into. And there were numerous
indications on the record
that showed that the evidence adduced
against the appellants was not entirely satisfactorily interpreted.
The interpretation was
at some places distorted and did not make
sense.
[16] Mr Konxela (the
permanent interpreter) had to rely on Ms Lin‘s interpretation
for his interpretation to the appellants.
As a result he must have
also interpreted incorrectly to the appellants. In my understanding
Ms Lin was used as a Chinese interpreter
because Mr Konxela did not
understand or was not conversant with Chinese. He could therefore not
have understood what the complainants
were saying and relied entirely
on the translation by Ms Lin. Since Ms Lin did not interpret truly
and correctly it stands to say
that Mr Konxela did not translate
truly and correctly to the appellants. To my mind, therefore, because
of this interpretation
there was a possibility that the appellants
did not understand the proceedings and thus their right to fairness
of the trial was
infringed.
[17] Regard being had to
section 6 (2) of Act 32 of 1944, the failure to provide a competent
interpreter might lead to a gross irregularity
and subsequent
invalidation of the proceedings. See
S v NDALA
1996 (2)
SACR 218
(C);
S v NGUBANE
1995 (1) SACR 384
(T);
S
v ABRAHMS
1997(2) SACR 47 (C) at 49g and
S v MAFU
1978 (1) SA 454
(CPD) at 457H. The question to be answered at this
stage was whether the extent of the incompetence in this case was
such that
it vitiated the proceedings. Put in other words whether the
appellants in this case had a fair trial. This question could be
answered
in the positive only if the requirements of section 35(3)(k)
of the Constitution had been complied with. Because the magistrate
accepted the interpretation as it was there was no need for him to
enquire into the extent of the incompetence. This left us at
large to
enquire into the degree of this irregularity.
[18] The correct approach
for a court to determine whether an irregularity is such that it
would vitiate the proceedings was laid
down by Holmes JA in
S V
MOODIE
1961 (4) SA 752
(AD) at 758 as follows:
‘
(1) The general rule in regard
to irregularities is that the Court will be satisfied that there has
in fact been a failure of justice
if it cannot hold that a reasonable
trial Court would inevitably have convicted if there had been no
irregularity.
(2) In an exceptional case, where the
irregularity consists of such a gross departure from established
rules of procedure that the
accused has not been properly tried, this
is
per se
a failure of justice, and it is unnecessary to apply
the test of enquiring whether a reasonable trial Court would
inevitably have
convicted if there had been no irregularity.
(3) whether a case falls within (1) or
(2) depends upon the nature and degree of the irregularity.’
[19] In terms of this
approach the use of an incompetent interpreter would therefore strike
at the root of a fair trial and would
normally fall within the second
category of irregularities referred to in the Moodie – case
supra.
See also
S
v MAFU
supra
at
458H. This instance, to my mind, is also an exceptional case the
incompetence of Ms Lin was gross, so gross that it struck at
the very
root of a fair trial.
[20] In the premises I
find that the failure by the state to use a competent interpreter was
a gross irregularity which invalidated
the proceedings and that the
appellants did not have a fair trial. The other grounds of appeal had
become academic. I therefore
consider that the following order should
issue:
1. The appeal is allowed.
2. The convictions and
the sentences are set aside.
_________________
E.
M. KUBUSHI, AJ
I
concur
and it is so ordered
.
______________
K. J. MOLOI, J
On behalf of the
appellants: Adv. P. Greyling
Instructed by:
Bokwa Attorneys
BLOEMFONTEIN
On behalf of the
respondent: Adv. M. Strauss
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN