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[2008] ZAFSHC 113
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S v Pule (282/2008) [2008] ZAFSHC 113 (4 September 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review No. : 282/2008
In
the review between:-
THE
STATE
versus
M
PULE
_____________________________________________________
CORAM:
MOCUMIE,
J et
MOLEMELA,
J
JUDGMENT
BY:
MOLEMELA,
J
_____________________________________________________
DELIVERED
ON:
04
SEPTEMBER 2008
_____________________________________________________
[1]
The
matter came before me on automatic review in terms of section 302
read with 304 of the Criminal Procedure Act, 51 of 1977 (“the
CPA”).
[2] The
accused person was charged with contravention of section 5 (b) read
with section 13 (i) , 17 (e), 18m ,19 and 25 of the
Drug and Drug
Trafficking Act 140 of 1992 (“the Drug Trafficking Act”)
i.e dealing in an undesirable dependence producing
substance to wit
5,4 kilograms of dagga. She pleaded guilty and, pursuant to
questioning by the court in terms of section 112
(1) (b) of the CPA
she was then found guilty as charged. She was sentenced to a fine of
R 4000-00 (four thousand Rand) or 24 (twenty
four) months
imprisonment of which R1000-00 (one thousand Rand) or 6 (six) months
imprisonment was suspended for a period of 3
(three) years on
condition that the accused is not convicted of contravening section 5
(b) Drug and Drug Trafficking Act.
[3] The
record of the proceedings at the magistrate’s court showed that
after the accused person had pleaded guilty the magistrate
questioned
her as follows:
“
COURT:
Now is it correct that upon or about the 12
th
day of March 2008 you were at Ficksburg border of entry?
ACCUSED:
Yes
COURT:
This border of entry, is it the magisterial district of Ficksburg?
ACCUSED:
Yes your Worship.
COURT:
Did you deal with this undesirable
substance being dagga?
ACCUSED:
Yes, your Worship.
COURT:
This substance, do you admit that it was dagga you dealt in?
ACCUSED:
Yes,
your Worship
COURT:
Do you know that it is unlawful to deal in dagga.
ACCUSED:
Yes I know.
COURT:
The weight of the said dagga, do you admit it weighed 5.4 kilograms
in mass.
ACCUSED:
Yes
your Worship.
COURT:
And I see the charge sheet says you are registered to national
(sic). You came with dagga from Lesotho.
ACCUSED:
Yes your Worship.
COURT:
You then crossed the border with that dagga coming to deal with it
here in South Africa.
ACCUSED:
Yes, your Worship.
COURT:
Why did you deal with such a substance?
ACCUSED:
Your Worship, I am I widow my husband has passed away since last
year and then I am survived by children and they are still minor
children. The other one is doing standard 9 and there (sic) are
schooling. I struggle to pay their school fees.
COURT:
Well, you would recall that at the beginning of the questioning of
section 112 (1) (B)(sic) of
Criminal Procedure Act 51 of 1977
, I said
I just wanted to establish if you correctly pleaded guilty or if you
admit all the allegations leveled against you . From
the questions
as well as the answers that you provided this Court is satisfied that
on this you were at this Ficksburg port and,
that you dealt in this
substance which is dagga weighing an amount of 5.4 kg in mass. And
this Court also finds that you knew
that it was unlawful and you
also had the intention of dealing with the said dagga. And under the
circumstances this court finds
the accused guilty of dealing in 5.4
kg of dagga…”
[4
] Having
perused the record I was of the view that the conviction was fatally
flawed considering the manner in which the questioning
in terms of
section 112
(1) (b) of the CPA was conducted by the magistrate. My
view was that the presiding magistrate made a legal conclusion that
the
accused person was dealing in dagga without establishing any
factual basis for that conclusion. I was also of the opinion that
even if my views on the conviction were not correct, the sentence
imposed did not reflect that the presiding officer had taken
proper
cognisance of the accused person’s personal circumstances. I
accordingly requested the magistrate to furnish this
court with his
reasons for the conviction and sentence and he obliged.
[5
] The
reasons furnished by the magistrate, were, in my view, not persuasive
and I accordingly requested the Director of Public Prosecutions
to
give an input on both the conviction and the sentence.
[6] Adv S Giorgi’s
submissions with regards to both the conviction and sentence were as
follows:
“
Daar moet by die
ondervraging meer gedoen word as om slegs te vra of die beskuldigde
die bewerings in die aanklag erken. Deur die
pleit van skuldig is
dit in elk geval reeds gedoen. Dit mag daarom ook onveldoende wees
om die beskuldigde stapsgewys iedere bewering
in die klagstaat te
laat erken.
Die hof
behoort nie leidende vrae te stel in die ondervraging nie, veral
ten opsigte van skuld
en verweersgronde
(
S v Gwenya 1995 (2) SASV 522 (OK))”(own underlining) Hiemstra:
Suid – Afrikaanse Strafproses , Sesde Uitgawe op
p 307. That
is exactly what the magistrate did in this questioning, to wit asking
leading questions to which the accused just
had to say “yes”
or “no”. As it was in S v Phundula; S v Mazibuko; S v
Niewoudt
1978 (4) SA 855
(T) at 861 d-f: “ Dit blyk uit
ervaring dat n onontwikkelde ongesofistikeerde beskuldigde wat
besluit het om skuldig te pleit,
geneig is om bevestigend te antwoord
op enige direkte en leidende vraag met betrekking tot die bestandele
van die misdryf wat hy
sou gepleeg het… In die algemeen
gesproke sou die aangewese manier wees om te vra wat gebeur het en
hoe misdaad gepleeg
is. Die landdros kan dan toesien dat hy by die
punt hou, en vrae verseker dat hy ook aandag skenk aan die bewerings
in die aanklag”.
It is clear from the record that
it did not appear from the charge sheet what facts the state alleged
had rendered the accused guilty
of the offence charged. The
prosecutor also did not address the court to enlighten the magistrate
of these facts. As Horwitz
A J put in S v De Klerk
1992 (1) SACR 181
(w) at 183 a-b: “Neither of these issues is one of the facts in
the sense that that word is used in
s 112
(1) (b) of the Criminal
Procedure Act: they are conclusions drawn from the facts. It is
vitally important that the distinction
(between facts and conclusions
drawn there from) be born in mind when
s 112(1)(b)
of the
Criminal
Procedure Act invoked
,not only in the instant type reasonableness,
negligence and recklessness, constitute an essential ingredient of
the offence charged.”
I agree with the Honourable
Reviewing Judge’s remarks that the magistrate made a legal
conclusion that the accused was dealing
with dagga without
establishing a basis for that. (See S v Adams en Tien Ander
Soortgelyke Sake 1986 (3) SA (k)) I therefore
recommend that the
conviction be set aside and that the matter remitted to the
magistrate to properly apply the provisions of
section 112
(1) (b) of
Act 51 of 1977 anew. The same goes for the sentence. I am of the
opinion that the sentence is too harsh when one looks
at S v Sithole
2005 (2) SACR 504
SCA and the cases referred to therein.”
[7] I
am grateful to Adv S Giorgi‘s detailed submissions and am in
full agreement therewith. I am of view that the questioning
that was
embarked upon by the magistrate, purportedly as contemplated in
section 112 (1) (b) of the CPA, is not satisfactory at
all. The
accused person was unrepresented. The magistrate did not in any way
try to probe in order to establish what the accused
person’s
understanding of the concept “dealing in dagga” was.
No attempt whatsoever was made to elicit any
factual information from
the accused person. Instead, she was merely asked to confirm her
plea by making a series of admissions
in respect of each element of
the offence considered. This method of questioning clearly flies in
the face of all authorities
as cited above. See also
S
v Ntlakoe
1995 (1) SACR 629
(O) at 633 b-d; S v
Lebakeng
1978 (2) SA 674
(O) at 676 A and S v Mokoena
1982 (3) SA 967
(T) at
968.
That being the case, the proceedings were not in accordance with
justice and the conviction cannot be allowed to stand.
[8
] With
regards to the sentence, a fine was imposed on an unemployed widow
who was the primary caregiver of three children without
even
establishing her ability to pay a fine. The case of
S
v Sithole
2005 (2) SACR 504
(SCA
)
and
S
v
M
[2007] ZACC 18
;
2008 (3) SA 232
(CC)
at paragraph 36 fortify my view that the sentence imposed is not
appropriate under the circumstances and also falls to be set
aside.
[9
] I
accordingly make the following order:
1. The conviction and
sentence are set aside.
2. T
he
matter is to be heard
de
novo
before another magistrate.
________________
M B
MOLEMELA
,
J
I concur.
________________
B C MOCUMIE, J
/am