S v Maditlhaba (84/06) [2006] ZANCHC 94 (2 June 2006)

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[2006] ZANCHC 94
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S v Maditlhaba (84/06) [2006] ZANCHC 94 (2 June 2006)

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: 84\06
Magistrate
Case No: OH 742\05
Date
delivered: 2006-06-02
In
the review matter of
:
THE STATE
versus
BOY
MADITLHABA ACCUSED
Coram
:
MAJIEDT J
et
Tlaletsi
J
JUDGEMENT
ON SPECIAL REVIEW
MAJIEDT J:
This
matter has been submitted on special review by the acting chief
magistrate of Kimberley. The accused had been convicted on
12 January 2006 on a contravention of section 31(1) of the
Maintenance Act, 99 of 1998
. The matter was thereafter postponed
for sentence until 21 February 2006. The magistrate who had
presided in the matter until
conviction stage, had however, resigned
shortly thereafter and the matter came before another magistrate on
21 February 2006 for
sentencing. Having listened to the
mechanically recorded proceedings, the latter magistrate was not
satisfied with the conviction
and requested that the proceedings be
reviewed. It was forwarded to this Court on special review.
The
first aspect which requires consideration is the fact that the
accused was not asked to explain his plea of not guilty in terms
of
section 115
of the
Criminal Procedure Act, 51 of 1977
. This is,
however, not irregular, since a court is not obliged to question an
accused person who has pleaded not guilty, given
the fact that
section 115
is framed in permissive terms. See in this regard:
S v
Shikongo and others 2000(1) SACR 190 (NmS) at 196
e-j.
While
the provisions contained in
section 115
of the
Criminal Procedure Act
do
not make it peremptory to question an accused who has pleaded not
guilty, it is advisable to make use of the procedure contained
therein in the case of an unrepresented accused. See in this regard,
generally the discussion in:
S v Smith 2002(2) SACR
464 (C) at 466 h – 467 c.
A
more serious problem is the fact that, after the magistrate had
explained to the accused his rights, it does not appear clearly
from
the record whether the accused had in fact understood the
explanation. The following is what had happened at that stage after
the State had established a
prima
facie
case
to the effect that there was a valid maintenance order from the
Maintenance Court in operation against the accused and that
the
accused had
prima
facie
wilfully
disobeyed the said order in respect of his maintenance payments:
“
PRESIDING
OFFICER.
It is the State case (inaudible). Mr Maditlhaba you do not have to
embarrass your daughter. I mean she demands which is due to
her. By
virtue of her birth. And circumstances surrounding that. It is a
State case Sir, what it means is that the Public Prosecutor
is no
longer going to call witnesses who will testify against you Sir. So,
now you have the right to state your case before the
Court. You can
elect to come. under oath and testify under oath, and if you elect
to come under oath bear in mind that you will
be subjected to
cross-examination by the Public Prosecutor. And the Court may even
ask you some other questions if there are some
other issues that need
to be considered. You also have the right of calling another, a
witness who can come and testify under oath
on your behalf Sir. Bear
in mind that what we have said, at the beginning of the trial, it is
not an oath because it is not tested
by a cross-examination and it
was never been done under oath. Do you understand this (inaudible).
BESKULDIGDE
:
Ja.
PRESIDING
OFFICER.
What do you elect to do Sir?
BESKULDIGDE:
Ek dink ek moet maar net hoor eintlik met hoeveel is ek agterstallig
(onhoorbaar). Wil nou nie eintlik (onhoorbaar).
PRESIDING
OFFICER.
Would you like to testify under oath or you do not want to, you want
to remain silent?
BESKULDIGDE
:
Ek wil maar net stilbly maar.
PRESIDING
OFFICER.
So bear in mind that if you remain silent then you do not have any
evidence before the Court, but the only evidence that is before
the
Court it is that of the witness. You do not have evidence because
you have never give testimony under oath. Do you understand
Sir?
BESKULDIGDE
:
Ek verstaan ja.
PRESIDING
OFFICER.
So you, you still elect to remain silent?
BESKULDIGDE
:
Ja. Ek het nie gepraat (onhoorbaar) ek het nie geluister nie.
PRESIDING
OFFICER.
Ja, well. Thank you. That is your case.”
It
seems to me that,
ex
facie
the
aforequoted
verbatim
extract from the record, that the accused’s reply namely “
Ja.
Ek het nie gepraat (onhoorbaar) ek het nie geluister nie
”
can be interpreted that the accused did not fully understand the
explanation of his rights, since he did not listen properly
to the
magistrate’s explanation. I concur with the acting chief
magistrate that in the circumstances, there is considerable
doubt as
to whether the accused did in fact take a fully informed decision to
close his case in the face of the strong
prima
facie
case
which the State had made out against him. It seems to me that in
this matter one would rather err on the side of caution in
setting
aside the conviction, given this considerable amount of doubt.
In the premises the
following order is issued:
5.1 The accused’s
conviction is set aside.
5.2 The
matter is remitted to the magistrates’ court for a trial
de
novo
.
______________
SA MAJIEDT
JUDGE
I
concur.
____________
PL TLALETSI
JUDGE