S v Brouers (29/06/01) [2006] ZANCHC 2 (7 June 2006)

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[2006] ZANCHC 2
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S v Brouers (29/06/01) [2006] ZANCHC 2 (7 June 2006)

Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 29/2006
Delivered:
07/06/2006
In
the matter:
STATE
versus
ISAK
BROUERS
Coram:
Kgomo JP
et
Lacock J
JUDGMENT ON SPECIAL
REVIEW
KGOMO
JP
In
June 2006 I dispatched the following memorandum to the office of the
Director of Public Prosecution for the attention of Adv
C G Jansen
of that office:
“
1. One of my
colleagues brought this case to me because the Regional Court
Magistrate was informed that as a result of your consultation
with me
I suggested that the case be sent on special review. I cannot recall
the conversation but will accept if you say so.
2. It appears to me
that the case was competently before the Regional Court and was
erroneously sent on review. Kindly give an urgent
opinion marked for
my attention.”
Ms
Jansen has since furnished a very helpful opinion for which I thank
her. If it was not for the fact that the Learned Regional
Magistrate, Mr I V Z Taljaard, or any Regional Magistrate who will
be dealing with the matter need to know precisely what gave
rise to
the proposed review, I would simply have stated that the matter is
not reviewable.
The
affected accused, Mr Isak Brouers, was convicted on the 10
th
May 2004 in the District Court of the theft of a garden hosepipe
valued at R 250-00. He conducted his own defence. His case was
transferred to the Regional Court in terms of Section 116(1)(b) of
the Criminal Procedure Act, 51 of 1977 (the CPA) for sentencing
because the District Magistrate was of the opinion that accused’s
long list of previous convictions merit a sentence in excess
of the
District Court’s punitive jurisdiction.
In
the Regional Court the accused, sensibly, opted to engage a Legal
Aid funded legal representative. The accused’s (Mr Brouers’)
legal representative, Ms De Bruyn, made representations to the
Regional Magistrate that her client seems to be suffering from a
mental defect and may not have the mental capacity to comprehend the
nature of the proceedings –in the sense of distinguishing
wrong
from right. This issue never surfaced in the District Court.
On
the 16
th
February 2005, the accused was seen by a
psychiatrist, Dr Piotrowski, of West End Hospital, for mental
evaluation. The doctor’s
opinion was that the accused presented
with symptoms of dementia and psychosis and recommended that he be
sent for fromal forensic
mental observation to Valkenberg Hospital,
Western Cape.
As
regards the circumstances under which the case was sent for review I
can do no better than quote a few excerpts from Adv Jansen’s
opinion/report to me:
“
Our office was
contacted. It is a well known fact that there is currently no
Psychiatric Hospital or Mental Health Care Facility
in the Northern
Cape with the ability to conduct forensic observations as envisaged
by sections 77 -79 of Act 51 of 1977. Although
a new hospital with
such facilities is in the pipeline, this is a long term solution,
since the hospital will not be completed in
the next 2 to 3 years.
The Department of Health, and specifically Ms C L Isaacs, the mental
health co-ordinator of the Northern
Cape, has struggled
unsuccessfully for alternatives the past 5 years. Even at a national
level no short term solution can be found.
As a favour
Valkenberg Hospital in the Western Cape makes one bed at a time
available to the Northern Cape for observation in terms
of section 77
-79. Because of this, the accused to be sent for observation is put
on a waiting list and normally only serious matters
where an order in
terms of section 77(6)(a)(i) or 78(6)(a)(i)(aa) or 78(6)(b)(i)(aa) is
envisaged, are placed on the list. Prosecution
is stopped in terms
of
section 6(b)
of the
Criminal Procedure Act or
the charges are
withdrawn where it is clear that the accused has a mental health
problem in less serious matters. These former accused
are then
admitted to West End Hospital, a Mental Health Care Facility in terms
of Act 17 of 2002, on a voluntary, assisted or involuntary
basis for
care, treatment and rehabilitation. (See Chapter V of the Mental
Heath Care Act, Act 17 of 2002.)
If the State became
aware of accused 2, Isak Brouers’, mental health care problems
prior to the conviction in the District Court,
our office would have
given permission in terms of section 6(b) of Act 51 of 1977 to stop
prosecution. It would not make economic
sense to pay more or less R
30 000 for a formal observation in terms of section 77 -79 where the
accused has stolen a hosepipe of
R 250. The bill is paid by the
Northern Cape Regional Office of the Department of Justice. It will
also not make sense given the
dire situation with the availability of
only one bed for forensic observation for the whole of the Northern
Cape Province. Serious
matters such as rape and murder normally will
take precedence over a theft of a hosepipe. Furthermore, it will be
difficult to prove
that it is in the public interest that the accused
2, Isak Brouers, be declared a so-called “state patient” – (see
section
77(6)(i) and
section 78(6)(i)(aa)
of the
Criminal Procedure
Act.)
The
State’s hands
are tied, because it cannot stop the prosecution and an order in
terms of
section 77(1)
was made by the regional court magistrate. It
was under these circumstances that the Deputy Director, Adv C W Louw
had an informal
discussion with
Judge President Kgomo
in
November 2005 about a review in terms of
section 304
of Act 51 of
1977. One of the other reasons was the time the accused would spent
waiting for the formal observation, since the waiting
period is on
average of about a year.
The State does not
want the conviction to be set aside on the basis as was done in the
unreported matter of
The State versus Mouers A
, and
The
State versus Slinger W F, case 435/04 and 237/05
, judgment
delivered on 11/11/2005 in the Northern Cape Division of the High
Court by
Lacock, J
.
“
[4] This Court
has, despite the aforesaid, the inherent jurisdiction to prevent an
injustice being committed to any person within
its jurisdictional
domain. The inherent jurisdiction has now been statutorily conferred
on inter alia this Court in section 173
of the Constitution of the
Republic of South Africa, Act 108 of 1996
. Since Mouers and
Slinger are suffering from a grave injustice by no fault of their
own, we regard it as our constitutional duty
to exercise our
jurisdiction to end this travesty of justice.”
In both the above
mention cases the accused were referred to a reform centre, but
because of the lack of youth reform centres or like
institutions for
the rehabilitation of juveniles found guilty of criminal conduct,
they were incarcerated in prison pending their
transfer to a youth
centre. Because no such youth centre elsewhere in the country could
be found, willing to accept them, they stayed
incarcerated. Their
sentences, although confirmed on review, were set aside.(and
suspended sentences submitted therefor).
See also
: S v
Z and 23 similar cases 2004(1) SACR 400 (E)
about a similar
situation in the Eastern Cape
In
S v De Wee
and others 206(1) SACR 210 (NC)
probation officers complained
about the sentences of some of the accused after the matters were
finalized. The matters were sent
on review by the magistrate.
Olivier J
, made the following findings on 212 b – f:
“
[6] Be that as it
may, the question which arises is whether the magistrate had, in any
event, been entitled to submit the matter for
review in this fashion.
In my opinion, this question should be answered in the negative. ’
Adv
Jansen concluded in paragraph 12 of the opinion/report:
“
12. When Adv Louw
discussed the matter with Judge
President Kgomo
, the time the
accused would have spent waiting for the formal observation was
approximately one year. Given the long period which
had already
transpired for the matter to be referred and reviewed the accused,
Isak Brouers, is currently the next person to be sent
for observation
in the Northern Cape. It can therefore not at present be argued that
an exceptional instance exist where a failure
to intervene would
result in a grave injustice. It is therefore respectfully submitted
that the accused, Isak Brouers, be sent for
formal observation in
terms of section 77 – 79 of Act 51 of 1977. After a finding in
terms of section 77(6) of Act 51 of 1977,
the criminal proceedings
can be finalized in the regional court with regard to both the
accused.”
In
this matter the proper procedure was not followed to submit this
matter for review. At p 25(16) – 26(24) the record of proceedings
in the Regional Court reflects the following:
“
STAAT:
… Agbare, my opdrag van die senior aanklaer is dat die Regter
President aanduiding gegee her dat hierdie saak op spesiale
hersiening
gestuur moet word sodat hy dan kan besluit indien u dan
nou sou weier het mnr Benson my meegedeel dat die saak dan uitgestel
word,
die Beskuldigde is dertiende op die lys, dit sal ongeveer elf
na twaalf maande wees voor hy Valkenberg to kan gaan. Daar is net
een bed beskikbaar en daar is probleme ook blykbaar Agbare. So dit
is die mededeling wat hy aan my gemaak het.
HOF
:
Die van die Regter President, is dit nou `n mededeling van wie af,
van mnr Benson?
STAAT:
Mnr Benson het aan my mededelings gemaak dat (tussenbei).
HOF
:
Maar waar het hy dit nou vasgestel?
STAAT
:
Hy sê (tussenbei).
HOF
:
Hoekom is daar nie (tussenbei).
STAAT:
Advokaat Jansen het dit saam met die RP gaan bespreek en toe het sy
vir hom gebel daaroor maar indien u wil kan ek vir hom sê dat
ons
die saak uitstel dat dit op skrif gestel word.
HOF
:
Ja-nee, hulle moet dit maar vir my op skrif stel want dit is nie
normale prosedure nie. Ek het nie `n probleem om dit te doen
as dit
die opdrag is nie maar ek wil eers sekermaak dat dit wel so is.
STAAT
: Ek
sal vir hom so meedeel Edelagbare.
HOF
:
Dit wyk ietwat af van die gronde vir spesiale hersienings, so ek moet
eers `n skrywe in die verband hê.
STAAT
:
Ek sal so sê Edelagbare.”
I
fully share the views of the Regional Magistrate that there was no
jurisdictional factor on the basis of which he could competently
send the matter on review. The Regional Magistrate ultimately
dispatched the matter on review after he was apparently furnished
with some kind of written document emanating from some unspecified
source. Whatever the contents were they were sufficient to
persuade
the Regional Magistrate at a subsequent hearing to declare and order
that:
“
HOF
:
Goed, ek sal voldoen aan hierdie versoek.
Ek sal die saak in
terme van artikel 304(A)(1) van Wet 51 van 1977 op speciale
hersiening stuur.”
I
regret that the Regional Magistrate was placed in such an invidious
position. I appreciate the fact that he offered his co-operation
in
an apparent endeavour to prevent an injustice from occurring.
However, I probably expected the office of the Director of Public
Prosecutions (Mr Louw or Ms Jansen) to furnish me with a written
report to enable me to make an informed decision. My aim was
certainly not to direct the Regional Magistrate orally (or even in
writing) to sent the case on review irrespective of the merits,
demerits or circumstances. That would amount to undermining or
interfering with the independence of the Regional Court (or even
a
District Court). A Judge, in my view, is not competent to give such
a directive because the competency or discretion is reposed
in the
Magistrate. The discretion has to be judicially exercised and the
competency goes hand-in-hand with jurisdictional factors.
Adv
Jansen has cited a number of examples of cases in this jurisdiction
and elsewhere in which it became necessary for the High
Court to be
approached to intervene on urgency in Criminal matters, particularly
where indigent, unsophisticated and unrepresented
accused are
concerned. I am not closing the door to such exceptional cases, but
the proper and principled procedures must still
be followed. I am
also mindful of the remarks of the Constitutional Court, in a
different (civil) context, which are equally opposite
to this case,
in
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
at 826H-J (para 69) whereat it is enunciated:
“
(I)n a country
where so few have the means to enforce their rights through the
courts, it is essential that on those occasions when
the legal
process does establish that an infringement of an entrenched right
has occurred, it be effectively vindicated. The courts
have a
particular responsibility in this regard and are obliged to 'forge
new tools' and shape innovative remedies, if needs be,
to achieve
this goal.”
In
the result, much ado about nothing, I find that he case was not
reviewable and make the following order:
Order
:
The case is not
reviewable. The matter is remitted to the Regional Court to be
disposed of in accordance with the Law.
_______________________
F
D KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
I
concur:
________________________
H
J LACOCK
JUDGE
NORTHEN
CAPE DIVISION