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[2008] ZAWCHC 269
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S v Modise (A67/2008) [2008] ZAWCHC 269 (10 October 2008)
JUDGMENT
IN
THE SUPREME COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO
:
A67/2008
DATE
:
10
OCTOBER 2008
In
the matter between:
THE
STATE
versus
VICTOR
MODISE
JUDGMENT
THRING,
J
The
appellant in this matter was personally served with a summons. It
called on him to appear on the 18
th
April, 2007 in a magistrate's court sitting at the City Ha!l
r
Cape Town, to answer two charges of contravening regulation 18, read
with section 89(1) and 89(6) of the National Road Traffic
Act
r
No 93 of 1996, inasmuch as he was alleged first to have failed to
licence a certain motor vehicle of which he was the owner, and,
secondly, to have failed to display an appropriate licence disc on
the windscreen of the said motor vehicle.
On
the appointed date the appellant failed to appear in the said court
in answer to the summons, and a warrant for his arrest was
duly
issued.
On
the 24
th
May, 2007 he appeared in the magistrate's court unrepresented for the
purposes of a summary enquiry into his failure to appear.
The two
charges against him under the National Road Traffic Act were
withdrawn. The enquiry was held in terms of section 55(2)
of the
Criminal Procedure Act, No. 51 of 1977, the relevant position of
which reads as follows:-
"The
court may, if satisfied from the return of service referred to in
paragraph (b) of section 54(2) that the summons was
served on the
accused in terms of paragraph (a) of that section and that the
accused has failed to appear at the place and on the
date and at the
time specified in the summons, or of satisfied that the accused has
failed to remain in attendance at the proceedings
in question, issue
a warrant for his arrest and, when he is brought before the court, in
a summary manner enquire into his failure
so to appear or so to
remain in attendance and unless the accused satisfies the court that
his failure was not due to any fault
on his part, convict him of the
offence referred to in subsection (1) and sentence him to a fine
not exceeding R300 or to
imprisonment for a period not exceeding
three months..."
No
evidence was led at this enquiry, but the appellant made an unsworn
statement to the Court in exptanation of his failure to appear,
to
which I shall turn presently. However, the statement was apparently
insufficient to satisfy the magistrate and she found as
follows:
"Die
Hof is oortuig dat die genoemde persoon se versuim om te verskyn en
aanwesig te bly aan skuld van genoemde persoon se
kant te wyte was."
The
appellant was thereupon presumably convicted by the magistrate of a
contravention of section 55(1) of the Criminal Procedure
Act in that,
having been duly summoned to appear at criminal proceedings, he had
failed to do so. The fact of this conviction is
not stated anywhere
in the record in so many words: but be that as it may, the appellant
was thereupon sentenced to pay a fine
of R300,00, the maximum fine
sanctioned by the relevant statutory provision, or to undergo
imprisonment for ten days, the whole
of which sentence was
conditionally suspended for five years.
With
the leave of the magistrate, the appellant appeals to this Court
against both his conviction and sentence.
The
appellant's unsworn explanation to the magistrate for his failure to
appear was recorded by the magistrate in longhand as follows:
"A
few days before trial date, I wrote a letter to Traffic Department
and was told by them telephonically that this would be
sufficient."
In
her reasons for conviction and sentence, which, for some reason, were
furnished by the magistrate only about 11 months after
she had
presided over the enquiry into the appellant's failure to appear, she
said the following:
"On
18/04/2007 the accused failed to appear at court despite the summons
having been properly served on him. The accused wrote
a letter to the
Traffic Department and did not appear in court as he believed that
the issue was resolved. No response to the letter
was given to the
accused by the Traffic Department prior to the trial date..
...Charges against the accused in respect of the traffic
offence has
only been withdrawn against him by the state on 24/05/2007 when he
appeared on the said warrant of arrest.
in
this
matter accused was served with a summons and failed to appear. The
accused ought to have come to court in the absence of an
answer from
the Traffic Department. Even though the Court accepts the reason
advanced by the accused for not having come to court,
the accused's
failure to do so cannot be excused and amounts to the offence in
question."
The
magistrate has misdirected herself in a fundamental respect. She
approached the enquiry on the basis that, according to the
appellant,
in response to his letter to the Traffic Department, there was an
"absence of an answer from the Traffic Department".
This is
not so, according to the appellant's unsworn explanation for his
failure to appear. He said in his explanation that he:
"...was
told by them telephonically that this would be sufficient,"
i.e.
that his letter would be sufficient. Presumably he meant by that that
some official at the Traffic Department had told him
that, because
his letter was sufficient, he need not appear in court. Certainly
his statement is capable of bearing that meaning.
If the magistrate
was in doubt as to the appellant's meaning, she should have
questioned him so as to clear the matter up. However,
she did not do
so. At no stage in the proceedings was the appellant's explanation
challenged, disputed or denied by the state,
nor, as I have said, was
any evidence led by the prosecution to rebut any aspect of it. In the
circumstances, the truth and correctness
of his explanation ought to
have been accepted by the magistrate
in
toto.
The
fact that the appellant's explanation was not given on oath does not
derogate from what I have said. See
S
v Sinqo
,
2002(1) SACR 576 (VHC) at 578f to 579g, The magistrate convicted the
appellant on the basis of only part of his explanation, without
having regard to the rest of it, which was, of course, the most
important part. Although the explanation furnished by the appellant
was not under oath, there is, as I have said, no evidence from the
state to suggest that what he told the magistrate was not true.
Nor
did the magistrate reject the appellant's explanation on the
contrary, she appears to have accepted "the reason advanced
by
the accused for not having come to court."
It
must be accepted, then, that he was informed by an official of the
Traffic Department that his fetter was sufficient and, by
implication, that he need not appear at court. That, to my mind, was
a satisfactory explanation which ought to have satisfied the
magistrate that the appellant's failure to appear was not due to any
fault on his part.
For
these reasons I am of the view that the magistrate erred in
convicting and sentencing the appellant.
In
passing, it must also be said,
J
think,
that the magistrate failed in her reasons for judgment to understand
properly the authority to which she refers, namely
S
v Singo
,
2002(4) SA 858 (CC). She refers to a passage at page 866e to 868g,
and attempts to summarise the conclusion reached by the
Constitutional
Court in that case. In doing so, it seems to me that
she has failed entirely to understand the finding to which the Court
came
in that case. However, in the light of the other misdirection to
which I have referred, it is not necessary for this Court to deal
further with that aspect.
It
is disappointing to see how fundamentally the magistrate has erred,
especially in misdirecting herself on the content of the
appellant's
explanation. The matter was a very simple one. It ought not to have
been difficult for the magistrate to get it right.
Instead, when
coming to her decision, she seems to have already forgotten, or at
least to have overlooked, the very terms of the
appellant's
explanation, which was both short and simple, and which she herself
had just recorded on the record
in
her own hand. Taxpayers are surely entitled to a higher standard of
adjudication of their matters than this.
The
misdirection to which I
have
referred relating to the accuseds explanation was not relied on by
him in his notice of appeal, it would seem. Nevertheless,
in the
exercise of this Court's inherent review jurisdiction, as also that
conferred by section 304(4} of the Criminal Procedure
Act, the
conviction and sentence of the appellant will be
SET
ASIDE
on review.
THRING, J
I
agree.
A
K BLOOMAERT, A J