Van Wyk v S (50/2009) [2009] ZANCHC 46 (11 September 2009)

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[2009] ZANCHC 46
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Van Wyk v S (50/2009) [2009] ZANCHC 46 (11 September 2009)

Reportable:
YES / NO
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to Judges: YES / NO
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to Magistrates: YES / NO
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to Regional Magistrates: YES / NO
IN THE HIGH COURT OF
SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case
Nr:
50/2009
Date
delivered:
11/09/2009
In
the matter between:
THE
STATE
PLAINTIFF
and
PEDRO
VAN WYK
RESPONDENT
Coram:
Majiedt
J et Olivier J
JUDGMENT
OLIVIER
J
:
These
two cases against the same accused (cases nr V156/08 and V237/08,
Magistrate’s
Court, Groblershoop) have been submitted for special review.
The
accused in these matters had on two different occasions been issued
with summonses to appear in the Magistrate’s Court,
Groblershoop,
on different dates on charges of having contravened certain
provisions of the Road Traffic Act, 93 of 1996
.
He failed to appear on either of the two dates and warrants for his
arrest were apparently issued.
The charge in the one
case was that the accused had driven a motor vehicle without a valid
driver’s licence, while the charge
in the other case pertained to
the illegal conveying of passengers.
When
the accused eventually appeared in the Magistrate’s Court
(apparently after police officials had confronted him with the

warrants) the magistrate, mr L Willemse, dealt with both cases
simultaneously, convicted the accused on both the traffic charges
in
the respective cases and then postponed both cases to afford the
accused an opportunity to raise the money to pay fines in
the
amounts initially indicated in the summonses (as acknowledgement of
guilt fines) as well as for his failures to appear in
Court.
Mr
Willemse has since retired and the matters have therefore been
submitted (for review) by a different magistrate, mr S O Mazwi.

This mr Mazwi was entitled to do, despite not having been the
magistrate who convicted the accused (see
S
v Klaase
1998 (1) SACR 317
(C) at 321-322 and
S
v Hlongwane
1990 (1) SACR 310
(NC)).
I
agree with mr Mazwi that the proceedings in both matters are not in
accordance with justice and therefore reviewable and I have
to
commend mr Mazwi on the thorough manner in which these matters have
clearly been analysed and submitted for review.
When the accused
appeared before mr Willemse, he immediately proceeded to question
the accused about his failures to appear.
The
accused was never informed of his rights regarding legal
representation, either in respect of the enquiry into his failures

to appear or in respect of the charges against him. Not only is it
trite that this should be done, but the transcription of
the
proceedings in these matters clearly demonstrate the prejudice that
the unrepresented accused suffered as a result.
Mr Willemse’s note
to the effect that no enquiry into the accused’s failures to
appear had been done, is clearly incorrect.
It is contradicted by
the record, which clearly reflects questions and remarks by mr
Willemse which could only have been intended
to deal with the
accused’s failures to appear:
“
HOF
Ja, lyk my jy is ‘n man wat nie Hof toe kom nie nê?
BESKULDIGDE
Nee Edelagbare, laat ek Edelagbare verduidelik.
HOF
Nee, wat se verduidelikings is daar aan?
BESKULDIGDE
Edelagbare kan ek maar verduidelik?
HOF
Ja
”
“
HOF
Hoekom was jy nie die 20ste Mei by die Hof nie?
”
“
HOF
Die dagvaardings het jy gekry …”
When
the matters were eventually postponed the accused was told to see to
it that he had R240,00 available at his next appearance
“
vir
die versuim om Hof by te woon
”.
The
accused was, however, never formally convicted in respect of his
failures to appear in Court and I therefore return to his

convictions on the two traffic charges.
As
already mentioned, he was never appraised of his right to legal
representation in respect of these charges.
Moreover,
the charges were never put to the accused by the prosecutor and the
accused never formally pleaded to them. What happened
was that the
accused, when confronted with his failures to appear, offered to pay
the fines in respect of both charges and admitted
that “
…
ek moet dit betaal en ek is verplig om dit te betaal
”
and that, in respect of the one charge,
“…
ek weet ek is skuldig
”.
It
is unnecessary to consider the effect of these
“admissions”
.
In the absence of a proper plea of guilty (in response to a charge
properly put to the accused) it was not competent to convict
the
accused on any of the charges in these two matters (see
sections
112 and 105 of the Criminal Procedure Act
,
51 of 1977 and
S v Sithole and Others
1999 (1) SACR 227
(T) at 230c-d).
In my view the
convictions in both these matters therefore fall to be set aside on
any of the grounds already mentioned.
Although
it is therefore not necessary to decide whether it would not in
itself have justified the rescission of these convictions,
I feel
compelled to refer to the familiar and sarcastic way in which mr
Willemse addressed the unrepresented accused.
Apart
from what already appears from the above
-quoted
passages, the following are also examples of the unacceptable tone
and attitude adopted by mr Willemse:
“
BESKULDIGDE
… Ek vra as Edelagbare, dit vir my in paaiemente kan sit, dan sal
ek baie bly wees.
HOF
Nou wat dink jy is ons, ‘n lay-bye stelsel hierso?”
“
BESKULDIGDE
… as daardie mense vanoggend vir my by die huis gevat het, dan het
ek daardie paar rand ook gekry. Dan het ek vir Edelagbare
nou die
paar rand gekom gee het.
HOF
Wat se paar rand is dit? Het jy Lotto gewen?”
“
HOF
… O, jy het ‘n sel foon. Jy het ‘n sel foon. Ek het nie eens
‘n sel foon nie, want ek kan dit nie bekostig nie.”
When the accused
pleaded for mercy, and for an opportunity to raise the money to pay
his fines, mr Willemse responded as follows:
“
Dink jy nie jy
moet ‘n bietjie gaan rus in die Upington Gevangenis nie?”
Mr Willemse’s
attitude and tone was not only degrading towards the accused, but
also unworthy of a presiding officer in any
Court.
In conclusion I make
the following order:
The convictions in
cases number V156/08 and V237/08 are set aside and the matters are
remitted to the Magistrate’s Court, Groblershoop.
_____________
_________
C J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I agree:
______________
________
S A MAJIEDT
JUDGE
NORTHERN
CAPE DIVISION