S v Makhetha and Others [2009] ZAFSHC 90 (25 September 2009)

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[2009] ZAFSHC 90
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S v Makhetha and Others [2009] ZAFSHC 90 (25 September 2009)

FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Review
No. : 498/2009
In
the case
s
between:-
THE
STATE
and
LEBOHANG
MAKHETHA
MARAMANG
DAVID MARITI
499/2009
THSEDISO
MAKGALE
497/2009
NTHATUWA
TAUHADI
496/2009
LEBAKENG
MATJEKA
494/2009
SHANTI
NKUNYANE
495/2009
_______________________________________________________
CORAM:
CILLIé, J
et
JORDAAN, J
_______________________________________________________
JUDGMENT
BY:
JORDAAN, J
_______________________________________________________
DELIVERED
ON:
25
SEPTEMBER 2009
______________________________________________________
[1]
The
above matters were send to this court in terms of the provisions of
section 304(4)
of the
Criminal Procedure Act, no 51 of 1977
for
special review.
[2] All
these matters were heard and disposed off by the magistrate of
Wepener during January this year already. It is necessary
to briefly
deal with the record of proceedings as supplied by the quality
assurance senior magistrate in each of these cases.
All the accused
were charged with contravening the provisions of
section 49(1)(a)(b)
of the
Immigration Act, no. 13 of 2002
.
[3] In
case 24 of 2009, State v Lebohang Makhetha, the record of the
proceeding show that the accused’s rights to legal representation

were explained and that the accused elected to conduct his own
defence. The typed record of the proceeding then contains the
following: “Guilty, see J15 for completion. In mitigation accused
states that he is alone at home and no one is presently looking
after
the children.” The handwritten J15 shows that the accused pleaded
guilty and was found guilty on the ninth of January
2009 and that
section 112(1)(a)
of the
Criminal Procedure Act was
applied. The
accused was sentenced to a fine of R200,00 or 30 days imprisonment,
conditionally suspended for a period of three
years.
[4] Case number 51 of
2009, State v Maramang David Mariti in which, according to the record
of proceedings the accused elected to
conduct his own defence after
his rights to legal representation being explained and which record
furthermore contains the following:
“
Accused pleads guilty.
Section
112(1)(a)
applied.”
In mitigation;
“
I have no one who pay for me, I am
alone. I came here to look for work, I did not have passport.
See J15 for
completion.”
The
handwritten J15 is similar to the first mentioned case
and
the accused was sentenced to a fine of R300,00 or 30 days
imprisonment conditionally suspended for 3 years.
[5] Case number 54 of
2009 (Wepener) S v Thsediso Makgale where the accused according to
the record of proceedings also elected
to conduct his own defence and
the following is noted:
“
Accused pleads guilty. Accused
found guilty in terms of
section 112(1)(a).”
In mitigation:
“
Accused states that he is a first
offender. Not married, 23 years. Not working.
See J15 for
completion.”
The accused was
sentenced to a fine of R300,00 or 60 days imprisonment.
[6] Case number 54 of
2009, State v Nthafuwa Tauhadi wherein, according to the record of
proceedings, the accused also elected to
conduct her defence. The
record contains the following:
“
Accused pleads guilty.
Accused found
guilty in terms of
section 112(1)(a)”
In mitigation:
“
I am not married. I have children,
two. One 11 years and 8 years. Not working.
See J 15 for completion.”
The
J15 again only records in the handwritten version thereof that the
accused pleaded guilty and was found guilty after
section 112(1)(a)
was applied and whereafter the accused was sentenced to
a
fine of R300,00 or 60 days imprisonment.
[7] Case
number 56 of 2009, S v Lebakeng Matjeka where the accused elected to
apply for legal aid and the case postponed for that
reason. On the
next occasion that the case was heard it appears that the accused
appeared in person and the record again only
states that the accused
pleaded guilty and that
section 112(1)(a)
was applied. The
handwritten form J15 shows that the accused pleaded guilty, was found
guilty and sentenced to a fine of R300,00
or 30 days imprisonment
conditionally suspended for a period of 3 years.
[8] Case
74 of 2009, the State v Shanti Nkunyane, it appears that the accused
was indeed represented. The record of proceedings
contains only the
following:
“
Accused pleads
guilty.
Section 112(1)(a)
explained. See J15 for completion.”
The
accused was sentenced to a fine of R
200,00
or 30 days imprisonment.
In regard to all the
above matters the senior magistrate comments as follows:
“
The record
of
proceedings in the above matter is defective and not in accordance
with justice and on the following grounds: There is no indication
on
the record that the charge was ever put to the accused. The record
is silent as to whether the accused understood the charge
if it was
put to him or her. No indication on the record that the prosecutor
accepted the plea as tendered, the prosecutor not
afforded the
opportunity to prove previous convictions or to address the court on
an appropriate sentence. Pre-sentence and post-trial
rights/remedies
not explained.”
[9] In
regard to case number 56 of 2009, State v Lebakeng Matjeka the
magistrate points out that, although the accused wanted to
have legal
representation, the matter was proceeded with on the trial date
without the accused be
ing
represented and without any indication as to whether the accused
changed her mind and decided to conduct her own defence. The
senior
magistrate then concludes that the convictions and the sentences be
set aside by this court.
[10] From
the reading of the records in all the above-mentioned cases it does
not appear that the charges were put to the accused
nor that the
prosecutor accepted the pleas and even less that the accused were
asked whether they understood the charges before
they were required
to plead thereto. It furthermore does not appear that the accused’s
rights and choice regarding evidence
in mitigation of sentence were
explained at all. Save for the last-mentioned case, all the accused
were unrepresented and most
probably unsophisticated. It has already
been pointed out in State v Addabba; State v Ngeme; State v Van Wyk
1992 (2) SACR 325
(T), that in such cases, it is not only desirable
but necessary for the fair administration of justice that the
magistrate conduct
an inquiry as if it was a case under
section
112(1)(b).
Although one would not necessarily expect the full
enquiry as envisaged in the last mentioned section of the
Criminal
Procedure Act, one
would at least expect that the magistrate would
satisfy himself that the accused understands the charge against him
or her, have
sufficient knowledge of the nature of the charge and the
implications thereof and most definitely ensure that the accused
understands
his rights in regard to mitigation of sentence before
sentencing. The magistrate should at least have held an enquiry in
regard
to mitigation of sentence to elicit the relevant factors and
circumstances that might be relevant to sentencing. None of that
have been done in any of the above-mentioned matters.
[11] It is clear that the
quality assurance, senior magistrate is correct in his view that none
of the above-mentioned matters were
in accordance with justice. It
is highly unfortunate that these matters only came to the attention
of the last mentioned senior
magistrate at a late stage.
[12] In
the result the convictions and sentences in all the above-mentioned
matters are set aside.
___
_____________
A.
F. JORDAAN, J
I concur.
_
_____________
C. B. CILLIé, J
/EM