S v Mofokeng and Another [2009] ZAFSHC 109 (29 October 2009)

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[2009] ZAFSHC 109
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S v Mofokeng and Another [2009] ZAFSHC 109 (29 October 2009)

FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 456/09
In
the
review between:-
THE
STATE
and
BENNET MOFOKENG AND
ANOTHER
_______________________________________________________
CORAM:
MOLEMELA,
J
et
LEKALE,
AJ
_______________________________________________________
JUDGMENT
BY:
LEKALE,
AJ
_______________________________________________________
DELIVERED
ON:
29
OCTOBER 2009
_______________________________________________________
[1]
The
matter served before me by way of automatic review in terms of
section 302 read with section 304 of the Criminal Procedure Act,
No.
51 of 1977, (the CPA). The two accused male persons were convicted
and sentenced to twelve months imprisonment each for robbery
by the
Magistrate’s Court at Theunissen on 18 June 2009.
[2] On
going through the record I noted that the accused were not allowed to
testify in their respective defences although they
had expressly
elected to do so and, further, insisted that they still had something
to say and were not finished with their cases.
Their witnesses were,
however, allowed to testify.
[3] I
found the aforegoing
prima
facie
irregular and strange at the very least and directed a query to the
presiding magistrate to that effect, among others. The magistrate

has since responded and I am immensely grateful to him therefor.
[4] In his response the
magistrate hastens to point out that the fact that the accused were
not afforded an opportunity to testify
is regretted and, effectively,
attributes the same to the fact that usually the accused testify
first and the case, thereafter,
gets postponed in order for their
witnesses to testify as follows:
“Die
feit dat beskuldigdes nie geleentheid gegun was, word betreur.
Gewoonlik getuig beskuldigdes en dan word die saak uitgestel
vir die
aan hoor van hulle getuienis en op 26/05/2009, het Staatsaanklaer vir
hof meegedeel dat die beskuldigdes se getuies beskikbaar
is om hulle
getuienis te lewer en het hof met dit voort gegaan. Die feit dat
[die] beskuldigdes nie getuig het, was sameloop van
omstandighede dat
dit gebeur het. Dit word betreur en word... versoek om die uitspraak
en vonnis tersyde te stel om beskuldigdes
die geleentheid te gun om
hulle getuienis te lewer.”
[
5] The
accused had the right to adduce and challenge evidence as part of
their right to a fair trial insofar as the Constitution
of the
Republic of South Africa Act provides as follows in section 35(3):
“
(3) Every
accused person has a right to a fair trial, which includes the right-
to adduce and
challenge evidence;
”
[
6] The
right to adduce evidence includes the right to testify and to call
witnesses according to
S
v YOUNAS
1996 (2) SACR 272
(C). Section 151(1)(b)(i) of the CPA, on the other
hand, requires the trial court to cause the accused to testify before
any other
defence witness where he elects to testify in person.
[7] As
the magistrate has effectively and correctly conceded, the accused’s
constitutional rights to a fair trial were encroached
upon insofar as
they were not allowed to testify and the proceedings, further, appear
not to be in accordance with the CPA in that
regard. The convictions
and sentences, therefore,
prima
facie
fall to be set aside on this ground alone.
[8] The
accused were not represented and it was, as such, incumbent on the
magistrate, as the presiding officer, to assist them
in,
inter
alia
,
exercising their rights to adduce and challenge the evidence. (See
S
v SIMXADI
1997 (1) SACR 169
(C) and
S
v DYANI
2004 (2) SACR 365
(E) at p. 368 f – h.)
[9] It
is clear from the record that the magistrate did not only forget to
afford the accused the opportunity to testify, but also
did not
assist them in adducing the evidence of their witnesses. He left it
solely to them to lead the witnesses without, at any
stage,
intervening to elicit any relevant information from the witnesses in
line with what he understood their respective cases
to be from the
statements put by them to state witnesses.
[1
0] Where
the accused were apparently trying to make the magistrate aware that
they had not yet testified the following transpires:
“
HOF:
Is dit dan julle saak?
BESKULDIGDE
1:
Nee ons is nog nie klaar nie.
HOF:
Wat is dit dan meneer?”
(See
p. 23, lines 1,
to
and including 3 of the record.)
“
HOF:
... Julle het niks meer getuienis wat julle wil aanbied nie, of het
julle?
BESKULDIGDE
1:
Nee.
HOF:
Is dit hulle saak.
BESKULDIGDE
1:
Nee dit is nie ons saak nie. Ons is nog nie klaar nie.
HOF:
Wat is nog meneer? Roep die getuies dan nog wat julle wil roep? Ek
sal nou met hulle praat. Hulle kan nou betoog meneer.
BESKULDIGDE
1:
As die geval so is dan sal ek stil bly.”
(See
p. 23, lines 8 – 17
of the record.)
[11] The
aforegoing, in my view, reflects a disturbing attitude and/or
approach on the part of the magistrate and does very little,
if any
good, to improve the image of the administration of justice in the
eyes of the public. Such a display of intolerance, in
my humble
opinion, does untold damage to the already dented image of the
administration of justice.
[12] The
question, however, is whether or not the convictions and sentences
may be set aside as requested by the magistrate.
[1
3] In
the determination of the aforegoing question the court, generally,
has to decide whether or not the convictions and sentences
fall to be
set aside on the sole ground of the irregularity involved. In the
event of this question being decided in the affirmative,
the next
enquiry is whether or not the accused may, in law and/or fairness, be
tried
de
novo
.
Whether or not the convictions and sentences fall to be set aside
depends on the nature of the irregularity in question. If
the
irregularity is of such a nature that it
per
se
vitiates the proceedings, then and only in that event, do the
convictions and sentences fall to be set aside on the sole reason
of
such an irregularity with the result that the accused may be re-tried
on the same charges. (See generally
S
v MOODIE
1962 (1) SA 587
(A).) When the conviction and sentence are set aside
as a result of a decision made on merits, the accused cannot be tried
de
novo
because, in law, they are entitled to make a plea of
autrefois
acquit
.
(See
S
v NAIDOO
1962 (4) SA 348
(A) at 354 D – F.)
[
14] Section
313 of the CPA provides for institution of proceedings
de
novo
when a conviction is set aside on appeal or review as follows:
“The
provisions of section 324 shall
mutatis
mutandis
apply with reference to any conviction and sentence of a lower court
that are set aside on appeal or review on any ground referred
to in
that section.”
[1
5] On
its part, section 324 of CPA which relates to convictions and
sentences of provincial or local divisions of the High Court
which
are set aside by the Supreme Court of Appeal effectively provides for
the accused to be re-tried in such circumstances where
the setting
aside is by reason of any technical irregularity or defect in the
procedure, among others.
[16] An
automatic review is in the nature of an informal appeal than review
strictu
sensu
according to A. Kruger in Hiemstra’s
Criminal
Procedure
,
(2009) at p. 30-20. (See further
S
v G
1990 (2) SA 22
(T) at p. 26 H.)
[17] Section
304 of the CPA requires, in effect, the reviewing judge to act in
accordance with his impressions with regard to whether
or not the
proceedings are in accordance with justice insofar as it provides
that:
“
(1) ... it appears to the
judge that the proceedings are in accordance with justice...”
a
nd
“
(2) (a) ... it appears to the
judge that the proceedings are not in accordance with justice...”
[
18] The
aforegoing, in my view, indicates that what is required of the
reviewing judge is to look at the proceedings before the
magistrate’s
court in the broad perspective in order to form an opinion on whether
or not they are in accordance with justice.
(See generally
S
v NGUBENI
(OPD) case number 196/2002 delivered on 5 September 2002 by Cillié
J.)
[19] When the proceedings
before the magistrate are looked at in the broad perceptive, the
following becomes clear:
the
accused’s respective defences were not pertinently put to state
witnesses;
the
defence witnesses were not asked pertinent questions relating to
the relevant date
viz
the date of the alleged commission by the accused of the crime
involved;
the accuced’s
respective cases were not before the court as at the time when the
magistrate analysed the evidence.
[20] The
irregularities involved are such that they vitiate the proceedings
with the result that the convictions and sentences fall
to be set
aside by reason of the technical irregularity or defect in the
proceedings.
ORDER
[2
1] In
the result the convictions and sentences are set aside.
[
22] The
matter is remitted to the Magistrate’s Court for re-hearing by
another magistrate.
______________
L.J. LEKALE, AJ
I concur.
____________
_____
M.B. MOLEMELA, J
/sp