S v Ntanga (177/06) [2006] ZANCHC 118 (29 September 2006)

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[2006] ZANCHC 118
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S v Ntanga (177/06) [2006] ZANCHC 118 (29 September 2006)

Reportable:
Yes
/
No
Circulate to Judges:
Yes
/ No
Circulate
to Magistrates:
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No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case no:
177/06
Date
delivered:
29/09/2006
In the matters:
THE STATE
versus
PIET
TANGA
Accused
Coram:
Tlaletsi AJP
et
Molwantwa
AJ
JUDGMENT
ON SPECIAL REVIEW
Tlaletsi AJP:
This matter is placed
before us by way of special review at the request of the Senior
Magistrate, Upington. The accused appeared
before a Magistrate who
was appointed on contract on a charge of failure to comply with an
order made by court to make monthly
maintenance contributions of R
1550-00 being for the period 1 October 2002 to 29 April 2005. He
was not legally represented.
He pleaded guilty but as the trial
Magistrate was not satisfied that he admitted all the elements of
the offence, she changed the
plea to not guilty in terms of Section
113 of the
Criminal
Procedure Act 51 of 1977
(“the
Act”). He was convicted and sentenced as follows:-
g
Warned not to
commit this offence (Contravene S.31 Act 99/89) Court order that he
pays R 30.00 towards arrears, from 1.09.2005 on
monthly basis only
towards R 600.00 from April to July 2005.”
The only reason why
the Senior Magistrate placed this matter before us for special
review is for the sentence to be altered to read
“cautioned and
discharged” and to delete the condition that the accused must pay
R 30-00 towards the arrears.
This is one of the
many matters that have been sent to us for special review due to a
number of procedural and substantive irregularities
committed by the
same Magistrate in the maintenance court, Upington. The
Magistrate’s contract has not been renewed and is therefore
not
available to respond to any of the queries that may be forwarded to
her. It is unfortunate that a number of these trials have
to be set
aside due to these irregularities, resulting in a failure of justice
to the vulnerable recipients of the maintenance
contributions.
In this matter as
well, upon my reading of the record I came across a number of
irregularities, the cumulative effect whereof put
to doubt whether
the proceedings were in accordance with justice. I will deal with a
few of these irregularities which I found
fundamental. The first of
these is that it is not shown on the record that the accused’s
rights to legal representation were
adequately explained to him.
What the record reveals is that the accused was told that he has a
right to apply for legal aid or
that he can conduct his own defence.
See in this regard
S
v Tilo
2006(2) SACR 266 (NC) at 270h – 274h.
The other irregularity
that I found on the record is that the Magistrate allowed the state
to lead inadmissible hearsay evidence.
The complainant who was the
only witness for the state did not know if the accused was employed
and for which months he paid or
did not pay. She only heard from
other people that he was employed at Checkers stores. Some of the
information was suggested
to the witness even though it was not
common cause. Should the hearsay allegations be struck from the
record it would mean that
the state presented no evidence to prove
the guilt of the accused even though the accused did not testify.
The judgment of the
Magistrate is very brief and does not disclose the facts found to be
proved to sustain a conviction. In fact
I am being too generous to
say that it is a judgment as the Magistrate only told the accused as
follows word by word:
g
This
court will find you
Guilty
for the period
April up until that is four months. As much as this court
appreciates what you have done and the court admits that
you have a
sense of responsibility. As you were not working in 2003 and 2004,
but though you managed to try and make payments, but
that does not
mean that now when you got a job you must stop paying.”
I
have already expressed myself on the failure by a Magistrate to
deliver a judgment at the conclusion of a trial in
S
v Van Wyk
2006(2) SACR 22 (NC) at 23g – 24g. The remarks I made are fully
applicable in
casu
.
The above
irregularities are in my view sufficient and weighty for this court
to interfere and set the conviction aside. It is
not necessary to
proceed to deal with the many other irregularities and the floppy
manner in which the Magistrate conducted the
trial. The conviction
should be set aside and it be left to the prosecution to decide on
what cause to follow to recover arrear
maintenance if necessary.
In the result I make
the following order
:
The conviction and
sentence are set aside and the matter is referred back to the
Magistrate Court, Upington for trial de novo
if need be, before
another Magistrate.
_________________
L P TLALETSI
ACTING JUDGE PRESIDENT
Northern Cape Division
I concur.
_____________________
B C MOLWANTWA
ACTING JUDGE
Northern Cape Division