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[2009] ZAGPPHC 237
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Malope v S (A257/09) [2009] ZAGPPHC 237 (31 March 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
NORTH DIVISIO
N
HIGH COURT REFERENCE NUMBER: 33
CASE NO:A257/09
DATE:31/03/2009
In
the matter between:
GODFREY
MALOPE
............................................................................
Accused
and
THE
STATE
REVIEW JUDGMENT
1. The accused was convicted in the
magistrate's court for the district of Lulekani of robbery.
2.
He had pleaded guilty and was convicted on the strength of that plea
after questioning by the presiding officer in terms of section
112
(1) (b) of the Criminal Procedure Act 51 of 1977. (“the Act”).
3.
The trial magistrate sentenced the accused to a fine of R 4 000, 00
or 24 months’ imprisonment, half of which was suspended
on
suitable conditions.
4.
The accused was unable to pay the fine and was therefore
incarcerated.
5.
The record of the proceedings in the trial court was submitted for
automatic review to the High Court in terms of section 302
of the
Act, but not within seven days from date of sentencing, as provided
for in section 303 of the Act, but after a period of
six weeks had
elapsed.
6.
The matter was raised by the reviewing Judge and the magistrate
replied that the delay was attributable to the transcribers and
was
regretted.
7.
The provisions on section 303 are, in general, observed in the breach
rather than in the observance thereof. It would appear
that systemic
problems beset the process of automatic reviews to such an extent
that delays in placing the record of the proceedings
before a Judge
of the High Court appear to have become accepted as the norm rather
than a failure to observe the fair trial rights
of an undefended
accused.
8.
This Court has remarked before that a failure to strictly observe the
rights of undefended accused to have their conviction and
sentence
reviewed within days of the latter being imposed, might lead to a
trial being regarded as not having been fair, depending
upon
circumstances, see S v Hlungwane
2001 (1) SACR 137
(T) at 147 g - 148
b; Sv Ndou
2006 (2) SACR 497
(T); S v Maluleke
2004 (2) SACR 577(T).
9.
It is therefore not sufficient merely to express regret at the
failure to observe the compulsory duty to respect the accused’s
fundamental right to a speedy review. Systemic failures redound to
the detriment of the entire criminal justice system and it is
the
duty of every magistrate to ensure that these problems are
eradicated.
10.
Apart from addressing the delay in sending the matter on review, the
reviewing Judge raised the manner in which the accused
was questioned
during plea proceedings, which might have created the impression that
the accused was being cross-examined prior
to being convicted. The
accused was charged with having robbed two cell phones from the
complainant. When the magistrate asked
how the phones were taken, the
accused replied that he pretended to be passing the complainant and,
“...as if (he) was passing,
and (he) happened to choke her…..”
11.
The court then asked whether the cell phones were taken forcefully,
which the accused denied, until he, after these further
questions by
the court “No is it correct? Voluntarily? Do you mean that she
voluntarily gave them to you? Answer this question,
and you must
interpret properly. Did she give you voluntarily those cellular
phones?” he answered “Not voluntarily".
12.
Although the court must through questioning establish the accused’s
guilt after the latter’s plea of guilty, this
questioning
should not be in the nature of cross-examination, see Mkhize v The
State and Another, Nene and Others v The State and
Another
1981 (3)
SA 585
(N) at 586 H - 587 G.
13.
The above-quoted questions may verge on the inadmissible, apart from
exhibiting a considerable measure of exasperation on the
part of the
presiding officer, (that should perhaps not have been allowed to
manifest itself as forcefully as it was), but after
studying the very
comprehensive comments by Adv E Leonard SC, Deputy Director of Public
Prosecutions and Senior State Advocate
D W M Broughton, which is
gratefully acknowledged to have been of significant assistance to the
court, it must be accepted that
the accused was not prejudiced, even
if a somewhat less aggressive approach to the questioning process
might have been preferred.
14.
The accused was sentenced to pay a fine that he could not pay
immediately, although he apparently earned an income from some
temporary employment prior to the conviction.
15.
The magistrate asked the accused during sentencing how much he could
pay per month if the sentence was ordered to be paid in
instalments,
to which the accused replied that he could afford an instalment of R
250, 00 per month.
16.
In spite of this information, the court did not consider allowing the
accused to pay the fine in instalments, and did not specifically
ask
the accused whether he would request to pay the fine in that fashion.
17.
As Cameron J (as he then was) said in S v Dandiso
1995 (2) SACR 573
(W) at 575 e:
“
In
a sentencing system committed to the twin ideals of consistency and
individuality, a provision permitting the sentencer to fragment
the
payment of a monetary fine is a most valuable and important power,
which no presiding officer may disregard.
An
accused has a right to be given this option if the circumstances are
such that a reasonable prospect exists that the fine will
be paid
over time.
18.
As the magistrate erred in this respect, the matter must be remitted
to enable him to deal with a possible payment of the balance
of the
fine, taking into account the provisions of the Adjustment of Fines
Act 101 of 1991.
19.
The following order is made:
1.
The conviction is confirmed.
2.
The sentence is set aside and the matter is remitted to the trial
court to impose sentence afresh along the lines set out in
this
judgment.
Signed
at Pretoria on this day of March 2009.03.16
E
Bertelsmann
Judge
of the High Court
I
agree
A
A. Louw
Judge
of the High Court