S v Williams (29/04/07) [2007] ZAWCHC 48; 2008 (1) SACR 65 (C) (5 September 2007)

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[2007] ZAWCHC 48
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S v Williams (29/04/07) [2007] ZAWCHC 48; 2008 (1) SACR 65 (C) (5 September 2007)

REPORTABLE
IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
HIGH COURT REVIEW NO:
071274
REVIEW
CASE NO: 109/07
CASE
NO: 29/04/07
In the matter between:
STATE
and
EREFAAN WILLIAMS
Accused
REVIEW JUDGMENT
DELIVERED ON 5 SEPTEMBER 2007
DONEN AJ
This matter was referred
to the regional magistrate for the regional division of the Western
Cape for the imposition of sentence
on the accused, pursuant to the
provisions of Section 114 of the Criminal Procedure Act, Act 51 of
1977 (“the Act”). By virtue
of the facts and circumstances set
out below the regional magistrate felt unable to proceed with
sentencing and elected to refer
the matter for consideration by this
court in terms of the provisions of Section 304A of the Act. The
view was expressed that
the proceedings should be set aside and that
the matter should be remitted to the district court for a trial
before a magistrate
other than the one who had referred the accused
for sentencing. For convenience Mr Erefaan Williams is referred to
below as the
accused. The magistrate who presided over the trial in
the district court is referred to as the magistrate.
The accused had stood
trial before the district court on one charge of theft (count one),
nine charges of housebreaking with intent
to steal and theft (counts
two to ten), and one charge of attempted housebreaking with intent
to steal (count eleven). He was
acquitted on count one and on count
four. On two housebreaking charges (counts two and ten) he was
found not guilty of housebreaking
with intent to steal, but guilty
of theft. He was convicted on six of the charges of housebreaking
with intent to steal and theft
as well as on the charge of attempted
housebreaking with intent to steal. The accused had been charged on
count one together with
two co-accused. The latter were discharged
at the end of the state case. This was limited to the presentation
of evidence in
relation to count one.
The accused was unrepresented. At
the outset of the trial he indicated that he wished to plead guilty
to ten counts. In general
he suggested that his
modus
operandi
involved the
commission of housebreaking and theft whenever he and his partner
needed money, especially for drugs. When the first
ten charges were
put to him the accused pleaded guilty to all of them. He was then
questioned by the magistrate in terms of Section
112(1)(b) of the
Act. The problems which faced the regional magistrate arose from
the manner in which the magistrate exercised
her powers in terms of
this section as well as the failure of the state to put the eleventh
charge to the accused until a very
late stage of the proceedings.
In terms of Section
112(1)(b) of the Act the magistrate was vested with a discretion to
convict the accused at a summary trial where
he had pleaded guilty
to the offences on which he was charged or to the offences on which
he could be convicted and the prosecutor
had accepted the pleas of
guilty. The jurisdictional facts for the exercise of this
discretion were; firstly, that the magistrate
had questioned the
accused with reference to the alleged facts of the case in order to
ascertain whether he had admitted the allegations
in the charge to
which he had pleaded guilty; and secondly, that the magistrate had
been satisfied that the accused was guilty
of the offences to which
he had pleaded guilty.
It is self-evident that until the
magistrate had satisfied herself with reference to all the alleged
facts of the case, a possibility
existed that a plea of not guilty
might have to be entered. Failing the satisfaction of the
magistrate, she would have had to
preside over a trial during which
the accused would be vested with a right to be presumed innocent.
1
During the summary trial of the accused in terms of Section
112(1)(b) of the Act as well as in any trial that might follow, the
accused was entitled to a fair hearing before an independent and
impartial magistrate.
2
It is well settled that Section
112(1)(b) was designed by the legislature to protect an accused from
the consequences of an unjustified
plea of guilty. Accordingly the
section has to be applied with care and circumspection, bearing in
mind the principles above.
Where an accused’s responses to
questioning suggest a possible defence, or leave room for a
reasonable explanation other than
the accused’s guilt, a plea of
not guilty should be entered and the matter should be clarified by
evidence
3
.
It is irregular for a magistrate,
regional magistrate or judge to subject an accused to critical
questioning where the latter denies
an element of the offence, or to
ignore the denial and to attempt to convince the accused that such
denial is improper or incorrect
4
.
The questioning in terms of Section 112(1)(b) of the Act should be
aimed at determining what the attitude of the accused towards
the
allegations in the charge sheet is, and not at a determination of
what it ought to be according to the view of the judicial
officer.
The difficulties in this
matter were exacerbated by the fact that the proceedings endured
(from plea to conviction), through court
appearances over five
separate days between 26 October 2006 and 21 December 2006. The
attitude of the accused towards the allegations
in the charge sheet
varied during this period.
The major difficulty
raised by the regional magistrate related to the questioning of the
accused in relation to count six.
By the time that this
plea was dealt with the accused had already stated that he could not
remember all the incidents. In relation
to count six he was asked
how he broke into and entered the house of the complainant. He
replied that he could not remember.
The magistrate then asked the
prosecutor to provide the court with details so that the accused
could be reminded of how he got
into the premises. Although the
magistrate provided the prosecutor with the nature of the
information required, the latter provided
unclear information. It
was suggested that a glass pane had been broken. The accused then
stated that he had not broken glass
at the house in question.
The magistrate then asked the
prosecutor to pass her the docket. It appears from the record that
the magistrate perused the docket
and then said: “
It says you opened a window. It’s a flat and you opened a window
and went in?
” The
accused’s memory was jolted and he made the admission that he had
opened the window.
I agree with the regional magistrate
that the conduct of the district magistrate constituted a striking
irregularity. The magistrate
abandoned her judicial function, took
over the role of the prosecution, and proposed certain
allegations from the bench
that were not
“allegations
in the charge”
. She then
elicited admissions from an unrepresented accused that he was not
personally able to make, and which he might not have
made had he
been properly represented.
In my view the reading
of the police docket by the magistrate in relation to count six not
only vitiates the trial on that particular
count, but also the
entire proceedings before the magistrate. The proceedings as a
whole cannot be regarded as having been conducted
in accordance with
justice. Once the magistrate had examined the content of the police
docket she could no longer be regarded
as one who was exercising her
judicial authority impartially, as required by the Constitution.
This irregularity was compounded by
what followed. The magistrate asked the accused whether he knew
that it was wrong to break
into other persons’ homes and steal
their goods. He replied in the negative and added that he had not
been in his right mind.
(“
No,
because I was not on my mind
”)
The magistrate then interrupted him, and eventually asked him
whether she should call his mother and have her come and tell
the
Court under oath that he did not know that he could not break into
people’s houses and steal.
In answer to further
questioning the accused stated that he had been high on drugs on the
day in question. He did not know what
he was doing on that day or
every other day. He was pertinently asked by the magistrate whether
this applied to all ten counts.
He answered in the affirmative.
The magistrate then proceeded with a
line of questioning, which, in my view, constituted
cross-examination. Ultimately, she put
to the accused that he had
known what he was doing. He answered in the affirmative. The
magistrate then remarked “
quite
right, so don’t waste my time
”.
The magistrate again asked him whether he knew what he was doing was
wrong and he answered in the affirmative. Finally, the
magistrate
said, “
Indeed. Don’t
waste my time. I am satisfied then you have admitted all the
elements of the charge on count six.”
Section 112(1)(b) does
not authorise questioning, cross-questioning and badgering by a
judicial officer in order to obtain admissions
in the manner
described above.
As a result of the
magistrate’s questioning the accused was induced into making
self-incriminating statements at a stage of the
proceedings when the
presumption of innocence had not fallen away through the reasonable
and justifiable questioning contemplated
by Section 112(1)(b).
In the circumstances the
trial of the accused was unfair in that the court was not impartial
and failed to protect the rights of
the accused in accordance with
the provisions of Sections 34, 35(3)(h) and 35(3)(j) of the Bill of
Rights.
Albeit that Section
112(1)(b) of the Act establishes an inquisitorial regime, the status
of the statements made by the accused in
answer to the questions put
by the magistrate (and his guilt) were inconclusive until the
magistrate had lawfully satisfied herself
that the accused was
guilty of the offences to which he had pleaded guilty. Statements
made in answer to questions put in terms
of the section had to be
obtained fairly.
After the completion of the Section
112(1)(b) procedure in respect of counts two to ten, the two
co-accused (who were legally represented),
pleaded not guilty to
count one. The matter was then postponed on two occasions for trial.
Upon resumption of proceedings the
magistrate informed the accused
that his admissions on counts two and ten supported convictions on
the competent verdict of theft,
but not on the main charge. He was
asked whether he wished to add anything to his plea explanation on
those two counts. He then
expressed the desire to make a statement
in respect of all the counts on which he had pleaded guilty. He
stated that he was told
to plead guilty. He was asked what he meant
by that. He replied that he had been told to plead guilty in all of
the cases because
“
he
pointed the houses to the police
”.
He was then asked whether he was pleading guilty because he felt he
was guilty. He answered in the affirmative.
The magistrate then
asked him whether he had gone into all the houses and stolen. He
answered in the affirmative. However, by
that stage, given the
qualifications he had attached to the facts that he had admitted,
pleas of not guilty should already have
been entered.
At the conclusion of the trial on
count one, while the prosecutor was busy addressing the court, it
came to light that the accused
had not been asked to plead to count
eleven. This charge was then put. The accused asked for details.
The magistrate asked the
prosecutor to give the accused “
the
basics from the A1 statement in the docket”
.
The nature of the premises that had been subjected to the alleged
attempt was apparently unclear. The magistrate suggested that
the
attempted housebreaking had occurred at an apartment. The accused
pleaded guilty. A questioning in terms of Section 112(1)(b)
then
took place. The accused was found guilty on that count as well as
on counts two, three, five, six, seven, eight, nine and
ten after
the prosecutor had accepted the pleas of guilty.
The regional magistrate contends
further, that the provisions of section 105 of the Act were
contravened in that these expressly
require the charge to be put to
the accused by the prosecutor before the trial is commenced. The
object of this provision, which
is peremptory, is to allow the
accused to know what the case is that he has to meet at the outset
of the trial
5
.
In my view it is not
necessary to examine the last submission in any detail, because the
circumstances above render the proceedings
as a whole unfair and
vitiate them accordingly. Nevertheless, in the context of the many
charges that the accused faced, he may
well have been inclined to
plead not guilty to the alleged attempt that he could not remember;
that is, had the vague charge on
count eleven been put to him
together with the other charges. Accordingly, had the magistrate
remained impartial and had she conducted
the proceedings as a whole
lawfully in accordance with Section 112(1)(b) of the Act, a plea of
not guilty would probably have had
to be recorded in respect of
count eleven, because the attitude of the accused was that he did
not know what he was doing.
In the circumstances
therefore I respectfully agree with the conclusion drawn by the
regional magistrate. The convictions of housebreaking
with intent
to steal and theft on counts three, five, six, seven, eight and
nine, the convictions of theft on counts two and ten,
and the
conviction of attempted housebreaking on count eleven are set aside.
The matters are remitted to the district court for
trial before
another magistrate.
__________________
DONEN,
AJ
I
agree. It is so ordered.
________________
VAN ZYL, J
1
See
Section 35(3)(h) of the Constitution.
2
Compare
Sections 34 and 165(2) of the Constitution.
3
See
S
v Naidoo
1989 (2) SA 114
(A) at
121 F
4
See
S
v Jacobs 1978(1) SA 1176 (C)
5
See
S
v Sithole & others
1999 (1) SACR 227
(T)