S v Farrel and Another (186/2006, 187/2006) [2007] ZANCHC 25 (26 March 2007)

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[2007] ZANCHC 25
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S v Farrel and Another (186/2006, 187/2006) [2007] ZANCHC 25 (26 March 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
CASE
NUMBER: 186 /2006
187/2006
DATE
DELIVERED: 26-03-2007
In
the case of:
THE STATE
versus
HENDRICK
FARREL
PATRICIA
NTHETHE
CORAM: KGOMO JP ET
MOLWANTWA AJ
JUDGMENT
ON SPECIAL REVIEW
______________________________________________________________________________________
MOLWANTWA
AJ:
1. The two accused appeared in different cases in
the Magistrate’s Court Upington, and pleaded guilty. They were
convicted as charged
and sentenced accordingly. They were legally
represented. The legal representatives respectively submitted
statements in terms of
section 112(2) of the Criminal Procedure Act
51 of 1977
(“the Act ”)
in which they admitted on behalf
of their clients, all the elements of the offences preferred against
them.
2. The Senior Magistrate of Upington has sent the
proceedings on special review as he was of the view that in respect
of the accused
Patricia Nthethe the proceedings were not in
accordance with justice as
“it appears as if there may be a
valid defence available to the accused as he indicates that he bit
the police officer in an attempt
to escape. To escape (what perhaps)
the effect of teargas.”
He further suggested that
“although
the accused admits biting the complainant I am satisfied it is clear
that the accused could (not) have appreciated the
wrongfulness of the
act of biting as it is not clear that it was justified to spray the
accused with teargas.”
3. In respect of the accused Hendrick Farrel the Magistrate offers
the following reason for the submission of this case for special
review:
“This matter is being sent on special review due to the
fact that the plea submitted in terms of section 112(2) of Act
51/1977 discloses
a valid defence to the charge.”
4. I sent a query to the Magistrate which entails the following:
“
Comments
are requested from the Senior Magistrate on the following:
This case does not seem to be reviewable in the
absence of any explanation why it was placed before me, otherwise it
would be an appeal.
In
the absence of further reasons why this matter should be treated as a
special review, I shall deem this matter to have been finalized
and
disposed of on 18 May 2006.”
5. The Magistrate has responded and explains in the one case (Hedrick
Farrel) that neither the Legal Aid attorney nor the Magistrate
concerned picked up that the accused may have had a valid defence to
the charges. He ascribes this oversight to the alleged lack
of
experience on the part of both the attorney and or the Magistrate.
This so-called anomaly was discovered when the Senior Magistrate,
a
quality assurance officer, checked all cases for quality control
purposes. I will return to this aspect later.
6. The office of the Director of Public Prosecutions (“
DPP
”)
was approached for a legal opinion. Advocate CG Jansen, a Senior
Advocate in the DPP’s office, does not support the Magistrate’s
views for the annulment of the convictions. The DPP was also asked to
comment on the following question of law:
“
Can
the High court review and set aside the conviction and sentence of a
defended accused on the basis that a Senior Magistrate appointed
as a
quality assurance officer is of the view that the proceedings are not
in accordance with justice.”
7. The material portion of the legal opinion aforementioned is to the
following effect.
“
16. In
the matter of Hendrick Farrell, the accused admitted that he
subjectively knew that he was acting wrongfully, by taking the
law
into his own hands when assaulting the complainant at the time of the
incident. He admits that he knew that there were other
remedies
available to him to redress his seemingly unlawful arrest. He
further admitted that his actions were wrong, unlawful and
punishable
by the law. The admissions made by the accused in his plea of guilty
were grounds enough to convict him of assault.
Since the accused
admitted to subjective knowledge of the wrongfulness of his actions
at the time of the incident, it cannot be correct
that there is a
possible defence open to the accused as is alleged by the Senior
Magistrate, Upington. The accused was furthermore
assisted by a
legal representative, who consulted with him and compiled a written
plea explanation, prior to the trial.
17. In
the matter of Patricia Nthethe, the accused admitted that she knew
what the charge against her was when the police tried to
arrest her,
but that she did not co-operate with the police, since she was drunk.
The police used teargas and she bit the complainant
in an attempt to
escape. She admits that she had no right to bite the complainant and
that she acted unlawfully, because she should
have co-operated
immediately. She admitted she had the subjective intention to bite
the complainant and therefore assaulted him.
She never alleges that
she was justified in her actions by biting the complainant. It is
clear that her legal representative consulted
with her and compiled a
written plea explanation, the contents of which is clear an
unambiguous. It cannot be deduced from her plea
explanation, that
she had a possible defence as the Senior Magistrate, Upington
alleges. The inferences sought to be drawn, should
be on the facts.
18 In
S v Salie
2007(1) SACR 55 (C) the Court also had
to decide whether the proceedings were reviewable after deciding the
question of locus standi.
The Court found that the legal
representative assisted the accused and that the basis of the facts
admitted by the accused in the
plea and sentence agreement, was in
accordance with law and justified a conviction on robbery with
aggravating circumstances. The
learned
Yekiso, J
made the following finding and order on
p62b-c:
“
The
fact that there was uncertainty as regards the presence or otherwise
of aggravating circumstances in a matter of a trial of his
accomplices is not a basis to fault the proceedings concluded on the
basis of the plea and sentence agreement concluded by the accused
and
on the basis of sound legal advice”.
It therefore follows in my view
that there is no basis to interfere with the manner in which the
accused’s trial was handled by
Mr. Van Zyl.”
I endorse these remarks by the State Counsel.
8. The creation of this category of judicial officers, the quality
assurance officers, was an innovative way of trying to
inter alia
ensure that judicial officers in the Magistrate court, especially at
entry level, produced quality work. The functions of a quality
assurance officer in this regard includes a perusal of all finalized
cases to check
inter alia
whether the court record is fully
completed e.g. whether the judicial officer has numbered the pages,
convicted the accused correctly,
imposed a competent sentence,
applied the correct and relevant provisions of the legislation dealt
with.
9. Importantly, a quality assurance officer must give direction and
guidance to officers in connection with judicial work, without
interfering with the judicial discretion or independence of
individual presiding officers in the cases they have presided over.
This is in line with the notion of judicial independence as envisaged
in the Constitution. See in this regard section 165 of Act
108 of
1996 of the Constitution of the Republic of South Africa.
10. Although the innovation (quality assurance) is
a good one, and has been accepted and encouraged by the High courts
in various
cases including
S v Nyanga
2004(1) SACR 198
(CPD);
S v Mashaba
2004(1) SACR 214 (TPD), it should
not be used as a review mechanism outside the parameters of section
302 read with 304 of the Act.
It might just lead to endless court
proceedings, no finality and create uncertainty. That cannot be in
the public interest and those
of the administration of justice. To
the contrary it might even be to the prejudice of the accused persons
who would suffer from
anxiety because they cannot find closure.
12. On inquiry as regards whether there are
guidelines which a quality assurance officer uses to discharge
his/her functions, none
could be supplied. I was informed that
magistrates holding this title do so based on their experience. I
would strongly urge the
Magistrates Commission to come up with clear
guidelines to quality assurance officers on how to act when an
irregularity or inequity
has been detected, keeping in mind that in
defended cases legal advice accepted by a litigant is binding on him
or her. See in this
regard the unreported judgment of
Kgomo J
(as he was then),
S v Hugo Van Heerden & 1
case no
EVS No 204/99 delivered on 31/3/2000.
13. Looking at the
proceedings of these two cases under discussion as a whole I am
satisfied that there is no indication that there
are considerations
of inequity or unfair dealings which could constrain this Court to
intervene to prevent a probable failure of
justice. See
S v
Cedras
1992(2) SACR 530(C) at 531j-532b.
14. I have discussed this matter with the Judge President, who
concurs in this judgment. We are
ad idem
that there is clearly
an over-exuberance on the part of some quality assurance officers who
seem to actively seek fault with judgments.
In some instances even
minor errors which have nothing to do with the substance of the case
and do not amount to gross irregularities
which affect the fairness
of the case, are being sent on special review. Needless to say, most
of these cases where it is found that
the proceedings are in
accordance with justice are returned unaltered. These cases take up a
lot of time of the presiding Magistrate
to answer queries, of the
Judge to whom the review is assigned and the DPP’s office where
their legal opinion is sought. It is
fair to say that the quality
assurance officers in trying to ensure that justice is done must keep
in mind that they do not possess
powers of review. These unwarranted
reviews can only exacerbate the workload and the case backlog
currently experienced throughout
the country.
In the circumstances I make the following order.
ORDER
The request by the
Magistrate that the conviction and sentence in cases 186/06 (S v
Hedrick Farrel) and 187/06 (S v Patricia Nthethe)
be reviewed and set
aside in terms of
section 304(4)
of the
Criminal Procedure Act 51 of
1977
is refused. The convictions and sentences are found to be in
accordance with justice and are hereby confirmed.
______________________
B C MOLWANTWA
ACTING JUDGE
NORTHEN CAPE DIVISION
I concur.
______________________
F D KGOMO
JUDGE PRESIDENT
NORTHERN CAPE DIVISION