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2010
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[2010] ZAFSHC 12
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M v S (A45/09) [2010] ZAFSHC 12 (4 February 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case No. : A45/09
In
the
matter between:
J
M
Appellant
and
THE
STATE
Respondent
_______________________________________________________
CORAM:
VAN
ZYL, J
et
MOLEMELA,
J
_______________________________________________________
JUDGMENT
BY:
MOLEMELA,
J
_______________________________________________________
DELIVERED
ON:
04 February 2010
_______________________________________________________
[1] This
is an appeal against conviction and sentence. The appellant, who was
16 years old at the time of commission of the offence,
was charged
with theft of four Cadbury chocolates valued at R31,00. The
appellant was not legally represented at the time of the
proceedings.
She was, however, duly assisted by her guardian as contemplated in
the provisions of section 73(3) of the Criminal
Procedure Act, 51 of
1977 (“the
Criminal Procedure Act&rdquo
;). She pleaded guilty
to the charge and was, after questioning in terms of the provisions
of
section 112(1)(b)
of the
Criminal Procedure Act, found
guilty and
sentenced to a fine of R300,00 (three hundred rand) or 80 (eighty)
days imprisonment, half of which was conditionally
suspended for 5
(five) years. The effective sentence was thus R150,00 (one hundred
and fifty rand) or 40 (forty) days imprisonment,
with payment of the
fine being deferred to the 13
th
June 2008. When the deadline for payment passed, the appellant was
arrested and brought before court. The effective imprisonment
sentence of 40 (forty) days imprisonment was then put into operation.
The fine was paid after the appellant had already spent
1 (one)
night in custody, on which night she was unfortunately allegedly
raped in the police cells. Subsequent to her release from
custody,
the appellant applied for and was duly granted leave to appeal
against both the conviction and sentence.
[2] Counsel
for the appellant submitted that the court
a
quo
erred in failing to adequately explain the appellant’s rights
to legal representation and legal aid to both herself and her
guardian. He contended that the court
a
quo
erred in failing to postpone the proceedings until such time as a
representative of the Legal Aid Board would have been available
to
conduct the appellant’s defence. He further argued that the
explanation of rights to legal representation was cryptic
and
inadequate, especially as it did not record exactly which rights were
explained to the applicant and/or her guardian and whether
the
appellant was granted an opportunity of discussing this aspect with
her guardian or not. Counsel for the appellant emphasized
that the
court
a
quo
had failed to actively encourage the appellant and/or her guardian to
obtain legal representation, thus failing to meet the standards
set
out in the cases of
S
v MOOS
1998 (1) SACR 372
(C) at 381 d – i;
MGCINA
v REGIONAL MAGISTRATE, LENASIA AND ANOTHER
1997 (2) SACR 711
(W) at 719 – 720 and
S
v PIENAAR
2000 (2) SACR 143
(NC) at 148 d – e.
[3] It
needs
to be pointed out that even though the proceedings were mechanically
recorded, a transcript of the proceedings was not available,
as a
result of which the court
a
quo
availed its notes to serve as a reconstructed record of the
proceedings. With regards to the issue of legal representation, the
reconstructed record reads as follows:
“
Beskuldigde
se regte verduidelik ten opsigte van regshulp en
regsverteenwoordiging
.
Beskuldigde verstaan en gaan maar saak self behartig.”
[4]
In
the court
a
quo
’s
reasons for judgment, it
inter
alia
stated as follows with regards to the explanation of the right to
legal representation:
“
Hierdie volledige
verduideliking is nie woord-vir-woord so afgeskryf nie. Dit sou so
op die meganiese notule voorgekom het as die
saak meganies opgeneem
was. Dat die appellant se regte wel verduidelik is is toegegee deur
die advokaat van die appellant by
aansoek om verlof tot appèl.
Die appellant se regte ten opsigte van
regshulp en regsverteenwoordiging is aan
haar verduidelik. Sy kan aansoek doen
om regshulp en as haar aansoek
goedgekeur word dan verskaf die Staat
aan haar ‘n regsverteenwoordiger en dit
kos haar niks. As sy egter ‘n
verteenwoordiger van haar eie keuse wil aanstel, is
sy self vir die persoon se vergoeding
verantwoordelik. Die derde opsie is dat sy
haar eie verdediging kan waarneem. ”
[5] The
court a quo further
explained
in its reasons for judgment that the reason why its notes were
cryptic was due to the fact that, during the proceedings,
it had
laboured under the impression that the proceedings were being
mechanically recorded due to the presence of the recording
machine’s
operator throughout the proceedings.
[6] I
think it is to be expected that a reconstructed record will not be as
detailed as a manual recording. In its reasons for judgment,
the
court a quo further stated that after the appellant’s rights in
respect of Legal Aid and legal representation had been
explained, she
and her father decided that she would conduct her own defence. Both
the appellant and her father subsequently deposed
to an affidavit in
support of the appellant’s application for condonation for late
filing of an appeal. They thus had an
opportunity to deny the court a
quo’s averments if they were not true. They did not do so. I
therefore accept the court
a
quo
’s
re-assurance that the rights in respect of legal aid and legal
representation were adequately explained to the appellant
even though
the record is cryptic on that point. By parity of reasoning, I would
equally not expect any encouragement for the
exercise of such rights
to be evident from the reconstructed record. As authority for my
view, I would rely on the case of
S
v MABUZA & OTHERS
2009 (2) SACR 435(SCA)
, where the court had an opportunity to
criticise the reasoning of the court in
S v SIBIYA
2004 (2) SACR 82
(W) whose facts are similar to those of
MGCINA
v REGIONAL MAGISTRATE, LENASIA AND ANOTHER
,
supra
and also to comment on the cases of
S
V RADEBE ;S MBONANI
1988(1) SA 191 (T). At p. 439d of the judgment in
S
v MABUZA
(
supra),
Cachalia J A had the following to say:
“
Our courts
have indeed established guidelines dealing with what Goldstone J
described in
S
v Radebe, S v Mbonani
as the in general duty on the part of judicial officers 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.
He
went on to say that:
If there is a duty
upon judicial officers to inform unrepresented accused of their legal
rights, then I can conceive of no reason
why the right to legal
representation should not be one of them.
Especially
where the charge is a serious one
which may merit a sentence which could be materially prejudicial to
the accused, such an accused should be informed of the seriousness
of
the charge and of the possible consequences of a conviction. Again,
depending
upon the complexity of the charge
,
or of the legal rules relating thereto, and the seriousness thereof,
an accused should not only be told of this right but he should
be
encouraged to exercise it. He should be given a reasonable time
within which to do so. He should also be informed in appropriate
cases that he is entitled to apply to the Legal Aid Board for
assistance. A failure on the part of a judicial officer to do this,
having regard to the circumstances of a particular case, may result
in an unfair trial in which there may well be a complete failure
of
justice – I should make it clear that
I
am not suggesting that the absence of legal representation
per
se
or the absence of the suggested advice to an accused person
per
se
will necessarily result in such an irregularity or an unfair trial
and the failure of justice. Such case will depend upon its
own facts
and peculiar circumstances.
”
(my own underlining
for emphasis).
[
7] On
p. 441 c at paragraph [14], the learned judge, making reference to an
alleged failure of the magistrate to bring the minimum
sentences to
the accused’s attention, had the following to say:
“
The fact
that the cryptic notes contain no reference to the magistrate
informing the appellants of the prescribed sentences does
not
necessarily imply that he did not do so. And a court will not set
aside proceedings on the mere supposition that he might
not have done
so... Even if I were to assume, in the appellants’ favour,
that the magistrate did not alert them to the Act’s
penalties,
there is still no basis to set aside the conviction. The notes
reveal, albeit in cryptic form, that the appellants
were informed
that they were facing serious charges.”
[
8]
Another criticism levelled at the court
a
quo’
s
judgment is as regards the style employed by that court during its
questioning of the appellant in terms of
section 112(b)
of the
Criminal Procedure Act. I
deem it appropriate to quote from the
record, where it is recorded as follows:
“
V: Het u op die 5/06/08 te
Multi Save 4 sjokolades @ R31.00 gesteel.
A: Ja.
V: Hoe gebeur dit.
A: Ek het die
lekkers onder my blad onder my T-hemp gehou en uitgegaan. By Pep
Stores kom vang hulle my.
V: Het u geld gehad om daarvoor te
betaal.
A: Nee.
V: Het u enige reg
om die lekkers te vat sonder om daarvoor te baal.
A: Nee.
V: Het u geweet wat u doen is
verkeerd.
A: Ja.”
[
9] It
was argued on behalf of the appellant that the aforementioned
questioning commenced with a leading question. This was conceded
by
the magistrate as well as in the respondent’s heads of
argument. However, during the appeal hearing, the respondent’s
counsel argued that the question concerned was not a leading
question, insofar as it did not suggest a particular answer. There
is
a plethora of case-law on the manner in which the
section 112(1)(b)
questioning should be carried out. I am of the view that the first
question may be criticised only for being inelegantly couched
in that
it makes reference to a legal conclusion (stealing), rather than a
fact from which it could be concluded that she had stolen
something.
Inelegantly phrased as it may be, it does not, in my view, constitute
a leading question. Even if I were wrong in this
conclusion, in that
the question is in fact a leading question, this question ought not
to be viewed in isolation but vis-à-vis
the rest of the
questions.
[10] I
would agree with the respondent’s counsel that immediately
after asking that question, the court then allowed the appellant
to
freely relate what transpired on the day in question. In her own
account of the events, the appellant concedes to (1) hiding
the
chocolates under her arm-pit and (2) having no money to pay for them.
She further admitted that she had no right to take the
aforesaid
chocolates and knew that what she was doing was wrong. It was
therefore correctly argued, on behalf of the respondent,
that it
could be inferred from the appellant’s responses that she had
the intention to steal. The appellant’s counsel,
relying on
the case of
S
v NAIDOO
1989 (2) SA 114
(A), submitted that as the responses made by an
accused persons to the
section 112(1)(b)
questioning do not
constitute evidence, no inference can be drawn from them.
[11] In
my view the present case is distinguishable from that of
S
v NAIDOO
(
supra
).
In that case it was held that the facts disclosed by the accused
person in response to the questions posed as contemplated in
section
112(1)(b)
had not established that the accused had rendered himself
guilty of dealing in drugs, seeing that the same facts permitted a
conclusion
that the accused person only acted as an intermediary
between the seller and the buyer. In
casu
,
the facts disclosed by the accused do not, in my view, permit any
other finding other than that of the appellant stealing the
chocolates as stipulated in the charge-sheet. With regards to the
ownership of the items stolen, i.e. the chocolates, it is quite
clear
from the first question, leading as it may be presumed to be, that
the chocolates concerned were in the lawful possession
of Multisave
and were removed from its control when the appellant, after
concealing them, went beyond the pay-points. Not only
did the
appellant go beyond the pay-points of Multisave, but she went to a
different store altogether. The intention to permanently
deprive the
owner or lawful possessor of the chocolates was thus clearly
established. I accordingly find that as all the elements
of the
offence of theft were proven, the conviction of the court
a
quo
was therefore proper.
[1
2] With
regards to sentence, the respondent conceded that the sentence
imposed by the court
a quo
could not be supported. That concession was, in my view, correctly
made, as that sentence does not reflect that the appellant’s
mitigating circumstances were taken into account. In my view, the
sentence imposed was not appropriate for a 16 year old first-offender
who was a mother of an infant. The court
a
quo
over-emphasised the prevalence of the offence over the appellant’s
personal circumstances. This failure to consider the
triad of
sentence in a balanced fashion constitutes a misdirection which
warrants interference with the sentence imposed.
[1
3] Counsel
for the respondent submitted that the appropriate sentence would be
one reflecting the pettiness of the offence committed.
He proposed
that the appellant be cautioned and discharged. Counsel for the
appellant proposed an unconditional postponement of
sentence for a
period of five years. If the accused is not ordered to appear at
court again for sentence to be imposed, then the
effect of that
sentence on the appellant would be that she was cautioned and
discharged. In essence, the appellant and the respondent
both have
the same sentence in mind. I am satisfied that this sentence is the
most appropriate one under the circumstances, especially
considering
the appellant’s age at date of commission of the offence, her
status as a mother and the pettiness of the offence.
[1
4] I
would accordingly grant the following order:
1. The
appeal against conviction fails
and the conviction is thus confirmed.
2. The appeal against
sentence succeeds.
3. The
sentence imposed by the court
a
quo
is set aside and replaced with the following:
Sentencing of the
accused is unconditionally postponed for a period of 5 (five) years.
_________________
M.B. MOLEMELA, J
I concur.
____________
C. VAN ZYL, J
On behalf of
appellant: Adv. M. Miller
Instructed by:
Justice Centre
BLOEMFONTEIN
On behalf of
respondent: Adv. R. Hoffman
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
MBM
/sp