Ngcobo v S (R1071/09) [2009] ZAKZPHC 51; 2010 (1) SACR 403 (KZP) (23 October 2009)

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[2009] ZAKZPHC 51
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Ngcobo v S (R1071/09) [2009] ZAKZPHC 51; 2010 (1) SACR 403 (KZP) (23 October 2009)

12
REPORTABLE
IN THE KWAZULU-NATAL HIGH COURT,
PIETERMARITZBURG
REPUBLIC OF SOUTH AFRICA
CASE NO: R1071/09
In the matter between:
THE STATE
and
BONGANI ANTHONY NGCOBO
Handed down
REVIEW JUDGMENT
October 2009
MSIMANG, J:
[1] In this matter the accused was
convicted on 2 counts of rape by the Pietermaritzburg Regional Court
and the facts which that
Court found to have been proven and which
led to those convictions were that during or about the month of June
2006 the accused
had unlawful and intentional sexual intercourse with
one "N S", a 9 year old female and that, during or about
the month
of September of the same year, he had unlawful and
intentional sexual intercourse with the said "N S" who, at
the time
was still aged 9.
[2] After a document containing the
particulars of the accused’s previous convictions had been handed
up and after the accused
had admitted his previous convictions as
recorded therein, the accused’s attorney intimated that, before the
sentencing process
could commence, she would call for a pre-sentence
report from a probation officer. The matter was accordingly
adjourned for that
purpose.
[3] When the Court reconvened on 27
January 2009 the probation officer had responded, intimating that she
was unable to compile
a pre-sentence report, the reason being that,
when she had conducted an interview with the complainant for the
purpose of compiling
one, the complainant had informed the officer
that she had not been raped by the accused but that she had been
raped by one Nonjabulo’s
boyfriend.
[4] In view of this departure from the
version which had been given by the complainant when she testified
during the trial and on
the basis of which the accused had been
convicted, the officer deemed it prudent not to compile the requested
pre-sentence report
but to refer the matter back to Court for further
directives.
[5] Notwithstanding this unexpected
turn of events and the resultant non-availability of a pre-sentence
report, the sentencing process
began on 7 January 2009 with the
accused’s attorney submitting that the fact that the complainant
had recanted her original version
when she made a report to the
officer should be taken into account and that it should constitute a
substantial and compelling factor
justifying the imposition of a
sentence which would be less severe than a minimum sentence
prescribed in the
Criminal Law Amendment Act 105 of 1997
. The view
of the prosecutor was that no enquiry or investigation had been held
into the veracity of the complainant’s retraction
and therefore
that it should be completely ignored and the Court should, in terms
of that
Criminal Law Amendment Act, proceed
and impose an appropriate
sentence.
[6] During the ensuing debate, it
became evident that the Regional Magistrate held the view that the
matter should be referred to
this Court on special review in terms of
Section 304A
of the
Criminal Procedure Act 51 of 1977
but that,
before such a route could be taken, some evidence of the said
retraction should be placed before it. To that end, the
Court opted
for a sworn statement to that effect from the complainant and ordered
that the same should be obtained by the investigating
officer and
that, thereafter, it should form part of the record of the
proceedings and be submitted to the Registrar of this Court
for
review in terms of
Section 304A
of the
Criminal Procedure Act.
Indeed
, after a statement had been obtained from the complainant by
the investigating officer the record was referred to this Court in

terms of
Section 304A
of the
Criminal Procedure Act.
[7
] The matter first came before my
brother
Mnguni J
and, after having considered the same, he referred it to the office
of the Director of Public Prosecutions with the following remarks
:-
“
The office of the Director of
Public Prosecution (sic) is requested to consider this matter and
provide its views on same as urgently
as possible”.
[8] The Acting Director of Public
Prosecutions has since responded, intimating that this Court has wide
powers set out in
Sections 304(2)(b)
and (c) of the
Criminal
Procedure Act. He
, however, opined that, as the Regional Magistrate
has already dealt, in some depth, with credibility issues, it would
be more appropriate
for another Court to hear further evidence,
should the complainant wish to recant on the evidence she gave during
the trial.
[9] He concludes that the appropriate
way of dealing with the matter would be for this Court to make use of
the powers set out in
subsection (4) (I think he meant subsection 304
(c) (iv) )
1
and to place the matter before the High Court with a view to
summoning the probation officer and the complainant to testify.
[10] The first issue to be determined
in this matter is whether the Regional Magistrate was correct in
invoking the provisions of
Section 304A
of the
Criminal Procedure Act
when
she referred (and for the purpose of referring) the matter to
this Court. Such an enquiry is essential for it is on the basis of

those provisions that she referred the matter to this Court for
review and it would only be if she could lawfully have done so
that
the Court would be able to accede to her request and proceed to
exercise its review powers in terms of those provisions.
[11] The relevant provisions of
Section 304A
read thus :-
“
(a) If a magistrate or regional
magistrate after conviction but before sentence is of the opinion
that the proceedings in respect
of which he brought in a conviction
are not in accordance with justice… he shall, without sentencing
the accused, record the
reasons for his opinion and transmit them,
together with the record of the proceedings, to the registrar of the
provincial division
having jurisdiction, and such registrar shall, as
soon as practicable, lay the same for review in chambers before a
judge, who
shall have the same powers in respect of such proceedings
as if the record thereof had been laid before him in terms of
section
303.”
[12] This section was introduced into
the
Criminal Procedure Act during
1986,
2
no doubt in response to a call for a legislative intervention made
by
Malherbe AJ
in
S v Seloke en Andere.
3
Prior to the promulgation
of that amending Act the review of cases in which the accused had
been convicted but not yet sentenced,
were dealt with differently by
the provincial courts. In the Orange Free State Provincial division
the prevailing view was that,
if the court
entertained doubt as to the
integrity of the conviction, it should, nevertheless, proceed and
sentence an accused person and that,
only thereafter, could it submit
the case for review, the view held in that division being that
sections 302
and
304
(4) of the
Criminal Procedure Act applied
only to
proceedings in which a sentence had been imposed.
4
[13] The Courts in the provinces of
Natal, Transvaal and the Northern Cape, however, felt free to
exercise their review powers
in those cases, notwithstanding the
fact that sentences would not, as yet, have been imposed, invoking
the powers provided for
by the inherent jurisdiction of the Court to
do so.
5
[14] It was against the background of
this judicial divergence of opinion that
Malherbe
AJ
remarked :-
“
Die gevolge van hierdie stand van
ons regspraak is onbevredigend omdat dit daarop neerkom dat ʼn
landdros verplig is om vonnis op
te lê op ʼn beskuldigde aan
wie se skuld hy ernstige twyfel het en wat hy, as ‘eerste
landdros’, nie skuldig sou bevind
het nie. Dit is egter ʼn geval
waar die Wetgewer moontlik kan oorweeg om in ʼn geval waarop art. 275
van die Strafproseswet van
toepassing is, dieselfde voorsiening te
maak vir hersiening voor vonnis as wat daar bestaan in die geval van
streeklanddroste ingevolge
art. 116(3).”
6
[15] The legislature decided on an
intervention in the form of the provisions of
Section 304A
which then
brought an end to the said divergence while bringing about uniformity
in interpretation of the law on this issue.
[16] However, before this Court can
intervene in terms of those provisions it must form an opinion that
the proceedings in respect
of which the convictions was brought :-
“are not in accordance with
justice”.
[17] In forming such an opinion,
should a court take into consideration only those factors prevailing
at the time when the proceedings
took place or should the court also
take heed of subsequent evidence where such evidence casts a totally
different light upon a
conviction sufficient to warrant its setting
aside?
[18] Though this enquiry would, in the
past, form an integral part of the investigation into whether the
proceedings upon which
the conviction was brought about were in
accordance with justice,
7
the consideration of recent cases (particularly those decided in the
post-constitutional era) has revealed that pre-occupation
with that
enquiry is no longer rewarding. That enquiry has since been
replaced by constitutional imperatives which should be
uppermost in
the court’s mind when deciding the issue. For instance, in
S
v Smit
8
, Nugent, J
put the matter
as follows :-
“
In addition, whatever the position
might have been at the time that case was decided, this court is
enjoined by Section 39(2) of
the Constitution of the Republic of
South Africa 1996 to ‘promote the spirit, purport and objects of
the Bill of Rights, which
provides in Section 35(3) that every
accused person is entitled to a fair trial, which includes the right
to ‘appeal to, or review
by, a higher court’. In our view it
would be a parsimonious construction of the Bill of Rights which
confined it only to the
immediate consequences of the trial itself.
In our view the clear spirit, purport and object of these sections
is to ensure
that no person is condemned to endure a penalty provided
for by the criminal law without recourse being had to another court
in
order to correct any irregularity or injustice which might have
occurred in the course of the proceedings which have had that
result.”
9
[19] This was also the
ratio
behind the decision of
Davis J
in
Hansen v The Regional
Magistrate, Cape Town and another
10
when he relied on Section
9(1) of the Constitution to ameliorate a sentence which had been
imposed upon an applicant so as to bring
it into line with that of
his co-accused, holding that :-
“
Moreover the courts are enjoined by
s39(2) of the Constitution, to promote the spirit, purport and
objectives of the constitution.
Section 9(1) guarantees that
‘everyone is equal before the law’ and recognizes that everyone
‘has the right to equal protection
and benefit of the law’.
Applicant will not have enjoyed that
right, protection and benefit unless his sentence is suitably
ameliorated so as to bring it
into line with that of his co-accused”.
11
[20]
du
Plessis J
in
S
v Mahlangu
12
made the position even
clearer when he remarked as follows :-
“
If justice so demands, this Court
can in a review …… have regard to facts which took place after
the sentence in the magistrate’s
court had been imposed”.
13
[21]
Plasket
J
in
S
v Z and 23 similar cases
14
expressed a final word of approval upon the decisions in the
post-constitutional era cases, adding the following caveats :-
“
31. I am in full agreement with
the views expressed by du Plessis J. I add, for the sake of clarity,
that in circumstances such
as these,
section 304
of the
Criminal
Procedure Act, when
interpreted in accordance with the spirit,
purport and objects of the Bill of Rights, and bolstered by the
inherent jurisdiction
of the superior courts to regulate their
process and develop the common law in the interests of justice,
envisages courts having
the power to review competent sentences where
subsequent events, if no interference occurs, would create or lead to
a miscarriage
of justice. The focus of courts should, in my view,
be on the justice of the end result rather than the technicalities of
the
process. If I am wrong, and
section 304
cannot be interpreted in
this way, then the inherent jurisdiction, on its own, vests the court
with the necessary power to remedy
such injustices”.
15
[22] It is true that these decisions
dealt with the interpretation of the words as they appear in the
provisions of
section 304
of the
Criminal Procedure Act. Clearly
though, it matters not whether one is dealing with the use of those
words in the provisions of
section 304
or in
section 304A.
The
context remains the same.
[23] Returning to the facts of the
present case, I have since perused and considered a statement which
was purported to have been
minuted by the investigating officer from
the complainant. The statement is dated 12 February 2009 and bears
the signatures of
the complainant, her mother and that of the
investigating officer. However, contrary to the order made by the
Regional Court
Magistrate on 6 February 2009, it does not constitute
a sworn statement.
[24] The allegations of complainant’s
retraction of the evidence which she had given during the trial
implicating the accused
in the commission of the crimes and upon
which the accused had been convicted are therefore contained in that
statement as well
as in the probation officer’s response dated 15
January 2009. Needless to say, both statements, unsworn and
untested as they
are, do not constitute evidence.
[25] The question which then presents
itself is whether a Court can form an opinion contemplated in
Section
304A(a)
of the criminal Procedure Act on the basis of such unsworn
and untested statements?
[26] In the course of preparing this
judgment I came across two pre-constitutional era cases the facts of
which I found to be comparable
to the facts of the present case in
the sense that, after the conviction of the accused, new facts came
to light which threw a
different light on those convictions.
[27] In
S
v Taylor,
16
despite his plea of not “guilty”, the accused had been
convicted of the crime of theft. His daughter had later testified

in mitigation of sentence and, in her evidence, had disclosed facts
which established, beyond doubt, that the accused had not intended
to
steal. The accused had, thereafter, addressed the court and
confirmed the facts as stated by his daughter.
[28] In
S
v Shezi
17
on a charge of rape the
accused had admitted sexual intercourse but advanced the defence of
consent. He was nevertheless convicted
of the crime of rape and, on
a fair reading of the record, the conviction appeared to be in order.
In mitigation of sentence
he called his uncle who testified that
the incident had been reported to the council of the township within
which both the complainant
and accused resided and that, at the
meeting of that council, a letter which had been written by the
complainant had been discussed.
When the complainant was recalled
and confronted with the allegations about the letter, in response,
though not conceding the
authorship thereof, she became extremely
evasive in her answers to questions put to her by the court.
Besides, the prosecutor
disclosed to the court that she had confessed
to one of the members of the prosecuting staff that she had not been
a virgin at
the time of the incident which apparently departed from a
previous confession to the contrary which assertion had been
essential
in supporting the conviction.
[29] In both these cases the Courts,
after considering subsequent evidence, acceded to the lower courts’
requests and reviewed
and set aside the convictions.
[30] The facts of the present case
present a totally different picture in that there is no the evidence
upon which the Court can
base its decision to review and set aside
the conviction handed down by the Regional Court. In my judgment,
the matter was prematurely
referred to this Court for special review
in terms of
Section 304A
of the
Criminal Procedure Act 51 of 1977
.
I would therefore make an order
remitting the matter to the Regional Court for that Court to take
evidence, if any, upon which it
has formed an opinion that the
proceedings in respect of which it brought in that conviction is not
in accordance with justice
and, thereafter, to refer the matter to
this Court for Special Review in terms of
Section 304A
of the
Criminal Procedure Act 51 of 1977
and, should such evidence not be
forthcoming, to proceed and sentence the accused and generally to
deal with the matter until its
final conclusion.
GORVEN, J
MSIMANG, J. It is so ordered.
1
Subsection (4) seems to be inappropriate for the present purpose
whereas subsection 304(c)(iv) gives this Court powers to
:- “
………… (iv) generally give such judgment or impose such
sentence or make such order as the magistrate’s court
ought to
have given, imposed or made on any matter in such manner as the
provincial or local division may think fit.” This
subsection
appears to be the relevant one and the provisions of which the
Acting Director must have had in mind.
2
Inserted by
Section 22
of Act 33 of 1986;
3
1983(2) SA 455 (O);
4
See, for instance, S v Thabanchu en ‘n Ander 1967(2) SA 323 (O);
5
See S v April 1985(1) SA 639 (NC); S v Shezi 1984(2) SA 577 (N)
and S v Mamejja 1979(1) SA 767 (T);
6
Seloke (supra) at 457 B-C;
7
See S v Sithole 1988(4) SA 177 (T);
8
[1999] 4 All SA 16
(W);
9
Ibid. 19-20;
10
1999(2) SACR 430 (C);
11
At 434J – 435b;
12
2000(2) SACR 210 (T);
13
Ibid. at 211-b;
14
[2004] 1 All SA 438 (E);
15
At 452 d-f;
16
1976(4) SA 185 (T);
17
1984(2) SA 577 (N);