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[2008] ZANCHC 62
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S v Visagie (04/07) [2008] ZANCHC 62 (7 November 2008)
Reportable: Yes / No
Circulate to Judges: Yes
/ No
Circulate to Magistrates:
Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern Cape Division)
High
Court Review Case No: 4/07
Magistrate
Case No: F 150/04
Date
delivered: 2008-11-07
In
the review matter of
:
THE STATE
versus
RUDOLF
VISAGIE
ACCUSED
Coram
:
BOSIELO AJP
et
MAJIEDT J
JUDG
MENT
ON REVIEW
MAJIEDT J:
The
office of the C
lerk
of the Magistrate’s Court in Upington is notoriously sloven
when it comes to court records, files and tapes. To my
knowledge
this must be the seventh or eighth case where the court tapes or the
court record or a file has gone missing. My colleagues
in this
Division have all come across this phenomenon at one time or
another. The inevitable outcome regrettably, as is the
case here,
is the setting aside of a conviction/s and sentence/s. This state
of affairs is a serious blot on the integrity of
the justice system
and requires urgent intervention – something which I hope to
set in motion at the end of this judgment.
The
accused stood trial on a contravention of
sec 31(1)
of the
Maintenance Act, 99 of 1998
, as amended
(“
the
Act
”),
i.e. failure to pay maintenance in accordance with a court order.
He was convicted and sentenced as long ago as
21
September 2004
to one year imprisonment suspended for 5 years on certain
conditions,
inter
alia
that
the accused settles the arrear amount of R1200.00 at R200 per month
and further also that he pays diligently the maintenance
as
originally ordered in the amount of R200.00 per month.
According
to the Registrar’s date stamp, the matter was received on
review at this Court only on
15
January 2007
.
It was accompanied by a covering memorandum of the Magistrate who
presided in the matter. In the memorandum the Magistrate
states
that she cannot give account of what had happened to the tapes and
that, since the matter had been heard in September
2004, she was
unable to reconstruct the record. The Magistrate conceded however
“
that
the sentence that was imposed was reviewable and too harsh as (the
accused) was a first offender and the outstanding maintenance
was
only R1200,00.”
She requested that the conviction and sentence be set aside and for
the trial to start
de
novo
.
An explanation for why it took two years and four months for the
matter to be sent on review, is glaring in its absence.
Mokgohloa
AJ addressed an enquiry to the Magistrate in the following terms on
23
January 2007
:
“
The
magistrate is requested to give full reasons for conviction and
sentence. Such reasons to include:
1.1 It is not clear
from the hand written notes whether the accused’s rights to
legal representation and other rights were
fully explained to him.
If not
1.1.1 Were the
proceedings in accordance with justice?
1.2 What
steps were taken by the Magistrate to search for the tapes and or the
record of the proceedings?
VIDE
S v Leslie 2000(1) SACR 347 (W)
S v Zondi 2003(2) SACR 227
(W).”
This
enquiry was forwarded to the Magistrate by the Clerk of the Court on
5
February 2007
.
The Magistrate’s response was received only on
20
August 2008
by the Registrar’s office. In this response, the Magistrate
states that, at her request, the Clerk of the Court at Upington
has
diligently searched for the tapes, to no avail. She also alludes to
the fact that the prosecutor who had appeared in the
matter has
passed away. The handwritten notes, as appears in typed form on the
record, is the only record of the proceedings.
The Magistrate
stated further that, based on the admissions made by the accused, he
was convicted as charged and that, in sentencing
the accused, she
took into account his income and expenses as per Exhibit “A”
(which did not form part of the record
on review).
On
20
August 2008
I addressed a further review enquiry as follows:
“
Further
attempts should be made to find the missing record in this case. If
these attempts prove to be unsuccessful, it must be
recorded in an
affidavit to be forwarded to the Registrar of this Court.
There should be
further attempts to reconstruct the record with the assistance of the
accused, Mr. Visagie. If this cannot be done,
it should be recorded
in an affidavit.
Not enough has been
done to reconstruct the record – compare the cases referred to
by Acting Judge Mokgohloa, viz
S v Leslie 2000(1)
SACR 347 (W);
S v Zondi 2003(2)
SACR 227 (W)
.
On
23
October 2008
the Clerk of the Court at Upington deposed to an affidavit stating
that the tapes cannot be found, despite a diligent search
during
December 2004 and again during August 2008. It appears from her
affidavit that the initial delay in sending the matter
on review was
due to the fact that the tapes could not be found in December 2004.
In response to my enquiry, she reported that
the accused cannot be
traced as he no longer worked at the address reflected on the
initial summons, a fact which was confirmed
in writing by his
erstwhile employer.
Consequently
and in summary, the record on review is incomplete and cannot be
reconstructed. It is therefore impossible to consider
and
adjudicate the review meaningfully. Ordinarily, the setting aside
of the conviction and sentence should follow.
Compare:
S
v Sebothe and others 2006(2) SACR 1 (T)
at para [8];
S
v Mcophele 2007(1) SACR 34 (E);
S v Miggel 2007(1) SACR 675
(C).
Automatic
review is statutorily entrenched and where a review record cannot be
reconstructed at all, thus
frustrating
an accused’s right to automatic review, the conviction and
sentence
must
be set aside.
Compare:
S
v Leslie 2000(1) SACR 347(W)
at
353 D-E.
In the premises the
conviction and sentence must be set aside in this matter.
I
deem it necessary to refer this judgment to the Regional Director of
the Department of Justice and Constitutional Development
in
Kimberley and to the Cluster Head of the Magistrates
’
Courts for the Gordonia region. A full investigation is in my view
warranted into:
a) the inordinate delay
in forwarding this matter on review; and
b) the
reason/s for the frequent loss of court tapes, court records and
court files by the Clerk of the Magistrate’s Court
at Upington.
I must point out that I am aware of the following cases where
similar problems had arisen in that office:
i)
Makhosandile
Mhlakova v The State
,
CA&R 136/06, judgment delivered on 17/11/2006.
ii)
State
v Hilton Williams
,
review case 10/2007, judgment delivered on 2/3/2007;
iii)
State
v Milton Diston
,
review case 9/2007, judgment delivered on 2/3/2007.
iv)
State
v John Moya
,
review case 68/2007, judgment delivered on 13/8/2007;
v)
State
v Frans van Staden
,
special review case 105/2007, delivered on 28/3/2008.
This
recurring carelessness is causing great damage to the administration
of justice in the Upington area and intervention is
called for as a
matter of the utmost urgency.
I
would
issue the following order:
A. THE ACCUSED’S
CONVICTION AND SENTENCE ARE SET ASIDE.
B. A COPY OF THIS
JUDGMENT MUST BE TRANSMITTED TO:
I) THE REGIONAL
DIRECTOR OF THE DEPARTMENT OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT
IN KIMBERLEY; AND
II) THE
CLUSTER HEAD OF THE MAGISTRATES’ COURTS FOR THE GORDONIA
REGION.
___________
___
SA MAJIEDT
JUDGE
I
concur
and it is so ordered.
____________
____
LO BOSIELO
ACTING
JUDGE
PRESIDENT