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[2010] ZAFSHC 129
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S v Monyane, S v Monyane, S v Ramateletse (354/2010) [2010] ZAFSHC 129 (30 September 2010)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No: 354/2010
In matters between:
The State vs. Motlatsi
Monyane; The State vs. Leeto J Monyane and The State vs. Moholo A.
Ramateletse
CORAM:
KRUGER,
J et C.J. MUSI, J
JUDGMENT
BY:
C.J.MUSI, J
_____________________________________________________
DELIVERED ON:
30
SEPTEMBER 2010
INTRODUCTION
[1] These
matters, which were presided over by the magistrate: Clocolan, were
referred to this Court, in terms of section 304 (4)
of the Criminal
Procedure Act, 51 of 1977 (the Act)
1
,
by the senior magistrate Bloemfontein, who is also the judicial
quality assurance magistrate.
BACKGROUND
[2] According to the
senior magistrate, the magistrate was suspended pending an
investigation to have him removed from office
inter alia
for
performing his judicial duties whilst under the influence of alcohol.
The senior magistrate was requested by the Magistrates’
Commission to inspect some of the cases that were presided over by
the magistrate. His inspection unearthed these three matters.
[3] The issues in S v
Motlatsi Monyane (case number 144/09) and S v Leeto Julius Monyane
(case number 145/09) are the same. I will
consider them together and
consider the matter of S v Ramateletse (case number 238/08)
separately.
S v M. Monyane and
S v L .J. Monyane
[4] The
two accused were purportedly charged with contravening
section 49
(1)
(a) of the
Immigration Act 13 of 2002
.
2
The annexures to the respective charge sheets were not completed.
The annexure in each case reads as follows:
“
Deurdat op omtrent _________ en
te of naby _______ in die Distrik/Streekafdeling van _________ die
beskuldigde die Republiek binnegekom
en/of in die Republiek gebly het
in stryd met hierdie Wet, deurdat________________ en daardeur ‘n
oortreding begaan het.
Strafbepaling:
Boete of gevangenisstaf wat nie ‘n
tydperk van drie maande oorskry nie.”
[5] According
to the roneo forms annexed to the charge sheets the accused’s
rights to legal representation were explained
to them. Each accused
preferred to conduct his own defence.
[6]
According to the charge sheets the accused pleaded guilty and were
convicted in terms of section 112 (1) (a) of the Act.
3
[7] They were each
sentenced to a fine of R500-00 or 100 (one hundred) days
imprisonment.
[8] There
is no indication on both records that the charge was put to the
accused. Although the accused were charged separately
the magistrate
inexplicably and irregularly consolidated the trials and dealt with
the accused as if they were accused one and
two in the same matter.
[9]
The mechanical recording commences at judgment
stage. There is no reason or indication why the plea proceedings
were not recorded, either mechanically or longhand. The magistrate
did not keep a proper record of the proceedings in both matters.
The
magistrate’s court is a court of record. The magistrate had a
duty to record the proceedings comprehensively and accurately.
4
[10] In
terms of section 105 of the Act the charge shall be put to the
accused by the prosecutor.
5
In both cases there is no indication on record that the charge was
put to the accused by the prosecutor. In fact the lack of any
substantial averments in the annexure to the charge sheet point
indubitably to the fact that the charge was not put to the accused.
If the accused pleaded, it is clear that they were not informed of
the charge with sufficient detail to answer it. Their constitutional
right to be informed of the charge with sufficient detail was
therefore violated.
6
[11] The
right to be informed of the charge with sufficient detail
inter
alia
encompasses
the State’s duty to set out all the allegations that it intends
to prove in order to prove the accused’s
guilt. The State must
set out detail including when the crime was allegedly committed;
where it was allegedly committed and by
what means or how it was
committed.
7
[12] The information in
the preceding paragraph must be set out in such a manner that the
accused understands the nature of the
charge. It must enable the
accused to make proper choices with regard to the course he/she is
going to chart. The accused will
have to decide whether he/she wants
to object to the charge or request further particulars. The charge
must therefore contain sufficient
detail to put the accused in a
position to plead thereto or to challenge the correctness and
legality thereof. The ability to plead
properly and mount a defence
to the charge is undermined and compromised if the accused does not
know the nature of the charge.
When the charge is inadequately
formulated the accused should not be asked to plead thereto. In this
case the accused were asked
to plead to an inadequately formulated
charge.
[13] The magistrate
disregarded the accuseds’ rights. His conduct was grossly
irregular and it should not be countenanced.
To convict an accused
under these circumstances would be totally inimical to his/her right
to a fair trial. The convictions in
both matters ought to be vacated.
[14] The magistrate
imposed an incompetent sentence. The maximum imprisonment that he
could impose is 3 (three) months but he imposed
100 (hundred) days.
The sentences in both matters ought to be set aside.
S v Moholo Abel
Ramateletse case number 238/08
[15] The accused
terminated his legal representative’s mandate and indicated
that he will conduct his own defence. He informed
the magistrate that
he is dissatisfied with the prosecutor’s conduct because the
prosecutor told his erstwhile legal representative
that he must apply
for legal aid. He requested that another prosecutor, prosecute his
case. The record then reads as follows:
“HOF: Vir
wie, wie … (tussenbei)?
TOLK: Die aanklaer sê die
beskuldigde praat kak as hy
so sê
. (The
prosecutor says the accused is talking
s**t if he says so
.)
My translation.
HOF: As hy wat sê?
TOLK: As hy sê hy het gesê
hy moet aansoek doen vir
regshulp.
HOF:…Dit maak nie saak wat die
aanklaer gesê het
nie en ek glo u ook nie.
(It does
not matter what the prosecutor said and I don’t believe you.)
My translation
.
U moet besluit. Dit is u keuse. Wil u ‘n
regsverteenwoordiger hê of wil u nie een hê nie?”
[16] The accused was
unimpressed with the offensively coarse word used by the prosecutor
and the following dialogue ensued:
“
TOLK: Hy sê hy sal self
praat, maar hy het nou nie “ge–
like” wat die aanklaer nou
gepraat het met die hof.
(He says he will conduct his own defence
but he did not like what the prosecutor just said to the court
.
My translation.)
HOF: Maar meneer, u weet, die
aanklaer, hy mag bevooroordeeld wees, want hy tree namens die staat
op en hy mag sê net wat
hy wil meneer. En as hy sê u
praat nonsens dan mag hy dit ook sê meneer, daar is niks fout
daarmee nie want u weet,
hy kla vir u aan namens die staat en hy moet
sy saak teen u bewys. So hy kan bevooroordeeld wees teenoor u. Maar
meneer, u moet
nou stop met u nonsens en net vir ons sê, wil u
aangaan sonder regsverteenwoording
?...” (My underlining).
[17] After
the charge of theft was put to the accused, by the prosecutor, he
pleaded not guilty. The magistrate then endeavoured
to explain his
rights in terms of section 115 of the Act.
8
He explained it thus:
“
HOF
: Goed meneer,
noudat u so pas
skuldig (?)
gepleit het, het u die geleentheid
om vir die hof ook, u pleit van onskuldig, ‘n sogenaamde
pleitverduidelikende verklaring
te gee. Dit is ‘n verklaring
wat nie onder eed is nie en dit is ‘n geleentheid wat u gebied
word nou by die aanvang
van die verhoor om ‘n
verskillende
verduidelikende verklaring
aan die hof voor te lê. Ekskuus,
ek is jammer. Ek moet myself korrigeer. ‘n
onverskuldigde
verklaring.
Meneer, met so ‘n verklaring kan u enige
bewerings, wat in die kagstaat vervat is, kan u in geskil plaas met
die staat en
dit ontken en daaroor ook verduidelik, ensovoorts. Of
die hof kan ook vir u vra ter opheldering van enige verduidelikings
of
beskuldigings
wat u met die staat in geskil plaas. Of u
meneer, u is glad nie verplig om enige verklaring in elk geval af te
lê of enige
vrae van die hof te beantwoord nie. U kan met ander
woorde van die begin af kies en sê; ek kies ek beoefen my
swygreg. Dan
in so geval meneer, in elk geval,
dan mag u vra, dan
mag die hof (?) geen vrae antwoord nie
en die aanklaer kan ook
nie in die aanvangstadium enige vrae van u vra nie.
En dit is
dit.
BESKULDIGDE:
Ek verstaan.
HOF
: Goed. The state may
proceed to prosecute. (My underlining).
[18] It is ironic that
the magistrate, seemingly with considerable effort, gave the
ramshackled explanation but in the end he did
not allow the accused
to elect whether he wanted to give a plea explanation or not.
[19] The magistrate’s
ramblings did not stop there. When he was about to explain the
accused’s rights to cross-examination
he said to the accused
that he is going to explain his rights to legal representation and
then corrected himself. A portion of
the accused’s rights to
cross examination is explained in an incoherent manner. The
magistrate said:
“
Indien u geen kruisondervraging
op
enige aspekte van die getuie se getuienis gelei het nie,
dan kan daar later deur die staat geargumenteer word meneer, dat u
dit nie as juis en korrek aanvaar het nie. Ekskuus, die teendeel
is
waar meneer. Dan kan daar later geargumenteer word dat u dit juis as
korrek en waar aanvaar het.”
The accused was not
informed that he may put his version to the witness.
[20] The proved facts
were briefly as follows. Mr Morallane, a security officer at Sibusisu
Construction, who was on duty at a construction
site on 4
th
August 2008 heard a noise at approximately 01H05. He went outside to
investigate and found three pieces of the timber removed from
their
usual storage place. It was put on the ground. He found the accused
on the premises. When he confronted him the accused apologised.
He
called the police and the accused was arrested.
[21] The
magistrate found that the state did not prove theft but attempted
theft. Regardless of this correct, clear and unambiguous
finding he
proceeded to convict the accused of theft! He sentenced him to a fine
of R400.00 or 80 (eighty) days imprisonment.
[22] The
senior magistrate listened to the mechanical recording and is of the
view that given the magistrate’s history of
misusing alcohol
and the manner in which the accused’s rights were explained
there is a possibility that the magistrate was
under the influence of
alcohol when he presided over these proceedings. I requested the
senior magistrate to present the transcript
of the record and his
referral letter to the magistrate for his comment, if any. The
magistrate chose not to comment. He gave no
reasons for his stance.
[23] The
Magistrates’ Commission has adopted a code of conduct for
magistrates, which is applicable to all magistrates.
9
The aforementioned code of conduct
inter
alia
provides that:
23.1 A magistrate administers justice
without fear favour or prejudice.
23.2 A magistrate executes his/her
official duties objectively, completely and with dignity, courtesy
and self control.
23.3 A magistrate acts at all times
(also in his/her private capacity) in a manner which upholds and
promotes the good name, dignity
and esteem of the office of
magistrate and the administration of justice.
23.4 A magistrate executes his/her
official duties diligently and thoroughly and requires his/her
subordinates to do likewise.
23.5 A magistrate maintains good order
in his/her court and requires dignified conduct from litigants,
witnesses, court staff, legal
practitioners and the public.
[24] The code of conduct
sets out, broadly, the normative becoming conduct that magistrates
should strive and adhere to. Non compliance
with the code of conduct
does not necessarily constitute an irregularity nor does it render a
trial unfair. A deviation from the
standard can however be so serious
that it becomes an irregularity that renders the trial unfair.
[25] An independent,
fair, impartial and competent judiciary is the bedrock of our justice
system. The integrity of the judicial
officer is as important as the
integrity of the judicial process. Proceedings should be conducted in
a dignified manner and judicial
officers should respect their office
and strive to maintain and enhance confidence in the judiciary and
the legal system. Public
confidence in the judiciary is eroded by
conduct that compromises the independence, integrity, fairness and
impartiality of the
judiciary.
[26] In my view the
integrity of the process in this trial was seriously compromised to
the extent that it is nigh impossible to
say that the accused had a
fair trial.
[27] The magistrate
forsook his duty to conduct the proceedings with dignity, courtesy
and self-control. When the prosecutor used
foul language he was not
reprimanded by the magistrate. The accused sensing that the
magistrate is not saying or doing anything
about the inappropriate
language took it upon him to register his disapproval at the erosion
of the dignity and decorum of the
court. His objection came to nought
because he was told, in no uncertain terms, that the prosecutor did
nothing wrong. Instead
he was told that he is a liar and that he
should stop his nonsense.
[28] As stated above, the
accused’s rights were explained in a disjointed manner.
Although the accused was never informed
that he may put his version
to the witness, the magistrate held his omission to do so against
him. If his rights were explained
properly he might have put his
version to the witness. The accused was incorrectly convicted of
theft instead of attempted theft.
There is in my view a substantial
likelihood that the magistrate was impaired from diligently and
responsibly performing his duties
by virtue of him being under the
influence of alcohol. I am however of the view that a definitive
finding in that regard is not
necessary in this matter.
[29] The conduct of the
judicial officer in this matter fell far short of the high standard
of the conduct demanded from judicial
officers. The integrity of the
trial was compromised by his conduct. These proceedings were
conducted in such an irregular manner
that it constitutes a gross
departure from the basic principles governing the conduct of a
criminal trial. The conviction and sentence
ought to be set aside.
ORDER
[30] I accordingly make
the following order:
[a] S v
Motlatsi Monyane (case number 144/09).
The
conviction and sentence are set aside.
[b] S v Leeto
Julius Monyane (case number 145/09).
The
conviction and sentence are set aside.
[c]
S v
Moholo Abel Ramateletse (case number
238/08).
The conviction and
sentence are set aside.
___________
C. J. MUSI, J
I concur
____________
KRUGER.J
/ar
1
Section 304 (4) reads as follows:
“
if
in any criminal case in which a magistrate’s court has imposed
a sentence which is not subject to review in the ordinary
course in
terms of section 302 or in which a regional court has imposed any
sentence, it is brought to the notice of the provincial
or local
division having jurisdiction or any judge thereof that the
proceedings in which the sentence was imposed were not in
accordance
with justice, such court or judge shall have a powers in respect of
such proceedings as if the record thereof had
been laid before such
court or judge in terms of section 303 or this section.”
2
Section 49 (1) (a) reads as follows:
“
Anyone
who enters or remains in, or departs from from the Republic in
contravention of this Act, shall be guilty of an offence
and liable
on conviction to a fine or to imprisonment not exceeding three
months.”
3
Section 112 (1) (a) reads as follows:
“
Where
an accused at a summary trial in any court pleads guilty to the
offence charged, or to an offence of which he may be convicted
on
the charge and the prosecutor accepts that plea-
the
presiding judge, regional magistrate or magistrate may, if he or
she is of the opinion that the offence does not merit
punishment
of imprisonment or any other form of detention without the option
of a fine or of a fine exceeding the amount determined
by the
Minister from time to time by notice in the Gazette, convict the
accused in respect of the offence to which he or she
has pleaded
guilty on his or her plea of guilty only and-
imposed
any competent sentence, other than imprisonment or any other form
of detention without the option of a fine or a fine
exceeding the
amount determined by the Minister from time to time by notice in
the Gazette; or
deal with
the accused otherwise in accordance with law.
4
See section 76 (3) (a) of the Act which reads as
follows:
“
The
court shall keep a record of the proceedings, whether in writing or
mechanical, or shall cause such record to be kept, and
the charge
sheet, summons or indictment shall form part thereof.”
5
See section 105 reads as follows:
“
The charge shall be put to the accused by the
prosecutor before the trial of the accused is commenced, and the
accused shall,
subject to the provision of section 77, 85 and 105 A,
be required by the court forthwith to plead thereto in accordance
with
section 106.”
6
See section 35 (3) (a) of the Constitution of
the Republic of South Africa, 1996 which reads:
“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 to it;”
7
See section 84 (1) of the Act, which reads “…a charge
shall set forth the relevant offence in such manner and with
such
particulars as to the time and place at which the offence is alleged
to have been committed… as may be reasonably
sufficient to
inform the accused of the nature of the charge.”
8
The relevant part of section 115 reads as
follows:
Where
an accused at summary trial pleads not guilty to the offence
charged, the presiding judge, regional magistrate or magistrate,
as
the case may be, may ask him whether he wishes to make a statement
indicating the basis of his defence.
(a) Where
the accused does not make a statement under subsection (1) or does
so and it
is
not clear from the statement to what extent he denies or admits the
issues raised by plea, the court may question the accused
in order
to establish which allegations in the charge are in dispute.
(b) The court may in its discretion put any question to
the accused in order to clarify any matter raised under subsection
(1)
or this subsection, and shall enquire from the accused whether
an allegation which is placed in issue by the plea of not guilty,
may be recorded as an admission by the accused of that allegation,
and if the accused so consents, such admission recorded and
shall be
deemed to be an admission under section 220.
9
See Regulation 54A Schedule E of the regulations as amended
promulgated in terms of
section 16
(1)(e) of the
Magistrates Act, 90
of 1993
published in Government Gazette No 20714 dated 17/12/1999