S v Booysen (188/2006) [2006] ZANCHC 52 (27 October 2006)

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[2006] ZANCHC 52
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S v Booysen (188/2006) [2006] ZANCHC 52 (27 October 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 188/2006
Review
Nr: 45/2006
Date
delivered: 27/10/2006
In
the matter:
The State
versus
BOOYSEN
Coram:
Williams J et Olivier J
JUDGMENT ON REVIEW
OLIVIER
J:
The
accused appeared in the Magistrate’s Court, Upington, on a charge
of the contravention of the provisions of
section 31(1)
of the
Maintenance Act, 99 of 1998
, in that he had allegedly during the
period from 31 August 2000 to 2 December 2004 failed to comply with
a maintenance order which
had been issued on 11 August 2000.
Despite his plea of
not guilty he was convicted and subsequently sentenced to a period
of imprisonment which was conditionally suspended.
After having
sentenced the accused the magistrate proceeded to convert the
proceedings (in terms of
section 41
of the Act) into a maintenance
enquiry.
The
matter has now been submitted for a special review by the senior
magistrate, Upington, who has suggested that, because the trial
magistrate had evidently come to the conclusion that it was
“desirable
that a maintenance enquiry be held”
(section 41
of the
Maintenance Act), it
had not been competent for
the magistrate to sentence the accused and that the sentence should
therefore be set aside. No submission
was made as regards the
merits of the conviction and the trial magistrate, who had been
serving in an acting capacity, is no longer
available for comment.
After having perused
the record of the proceedings I am, however, of the view that the
conviction itself was not in accordance with
justice. The charge
against the accused was that he had, as already mentioned, failed to
comply with the maintenance order during
the period stated in the
annexure to the charge sheet and it was alleged that the total
amount of the arrear maintenance amounted
to R14 800,00. After the
accused had pleaded not guilty, the magistrate put the following to
him:
“
Not
guilty. Okay. Okay, do you make, want to make a statement explaining
your Defence? Do you want to make a statement
,
sir?”
What
the magistrate put to the accused could by no stretch of the
imagination be described as a proper explanation of his rights
in
terms of
section 115
of the
Criminal Procedure Act, 51 of 1977
. It
was,
inter
alia
,
not explained to the accused that he could choose to remain silent.
Be that as it may, the
accused then explained, apparently, that he had lost his employment
in 2003 and that he had not been employed
since then.
During the course of
the further proceedings it appeared that the accused’s case would
also be that he had at times prior to having
lost his employment not
received his salary and that he in any event disputed the allegation
that he was in arrears to the amount
of R14 800,00.
The
prosecutor called only the complainant as a witness. She was not
able to say when the accused had paid maintenance and when
he had
failed to do so. She was not even asked about the total amount of
the arrears. She admitted that the accused had lost
his job in May
2003 and she clearly had no personal knowledge as to whether the
accused had been in any employment since then.
Although the
complainant did at one stage say that the accused had not paid any
maintenance during the year 2002, that allegation
was inconsistent
with her earlier evidence that she was
“not
sure how many times ..… he paid in …. ek kan rêrig nie vir jou
sê hy het spesifiek vyf keer of sewe keer ingebetaal
nie”
.
Whereas the complainant initially stated that the accused had made
payments since the issuing of the maintenance order, she later
denied having received any maintenance at all since then.
I
am of the view that the accused has been entitled to apply (in terms
of
section 174
of the
Criminal Procedure Act) for
his discharge at
the close of the case for the prosecution. The magistrate never
explained the provisions of
section 174
to the unrepresented
accused. Instead, the magistrate asked the accused whether he had
heard the evidence against him and put
it to him that he had the
“opportunity
to put your case before the Court”
.
This might have created the impression with the accused that there
was indeed a case to answer. In my view the magistrate should,
if
necessary
mero
motu
,
have discharged the accused at that stage (see
Commentary
on the
Criminal Procedure Act
,
du Toit
et
al
,
22-32H and
S  v  Lubaxa
2001 (2) SACR 703 (SCA)).
There
are, however, also other problems regarding the conviction. Despite
the fact that the accused had made it abundantly clear
from as early
as the beginning of his cross-examination of the complainant that he
disputed the arrears amount as alleged, and
despite his express and
repeated requests that the appropriate records in this regard be
made available, this was not done until
he himself was under
cross-examination.
The
accused was therefore deprived of the benefit of such records when
cross-examining the complainant. That this must have prejudiced
him
is clear from the fact that the prosecutor, when addressing the
magistrate on sentence, apparently conceded that the arrears
amount
had not been R14 800,00 and stated that it was, instead, R4 000,00
“as
per calculation made by the State …”
.
The records were never
proved or handed in as an exhibit. The magistrate would clearly not
have been entitled to merely rely on
calculations made by the
prosecutor. Those calculations would have been made on the basis of
records which the magistrate never
saw and the magistrate would
therefore not have been able to verify any such calculations.
Exactly the same would apply to the
calculations which the
prosecutor had put to the accused in cross-examination.
Put simply, even after
the accused’s evidence the magistrate would in my view not have
been able to make a finding, beyond reasonable
doubt, on the arrears
amount (if any).
The accused indicated
that he wanted to call a particular witness. When he completed his
own evidence he was not given the opportunity
to call the witness
(or in fact even to close his case). Instead the magistrate
proceeded to request the prosecutor to address
the Court on the
merits. As it turned out the witness was later called on sentence
and she then alluded to the fact that the accused
was a drug addict
and was in need of rehabilitation; evidence which might have had a
bearing on his guilt.
In my opinion the
conviction and sentence should be set aside on these grounds and it
is therefore unnecessary to consider whether
the magistrate would
have been competent to apply the provisions of
section 41
of the
Maintenance Act after
having already sentenced the accused.
This
also makes it unnecessary to consider in any detail the fact that
the magistrate did not administer the oath in the prescribed
form
before the complainant (or for that matter the accused) testified.
Suffice it to say that the words
“Okay.
May you swear then before the Court that the evidence which you are
going to give, is true but nothing else true?”
would
not only have been relatively confusing, but would also not have
complied with the provisions of
section 162
(1) of the
Criminal
Procedure Act. These
words would not have called upon the
complainant’s
“understanding
of the religious obligation of the oath”
and of the
“religious
sanction of the oath”
(see
S
v V
1998 (2) SACR 651
(C) at 652).
In the premises the
following order is made:
The
conviction and sentence are set aside.
________________________
C J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur:
________________________
C C WILLIAMS
JUDGE
NORTHERN
CAPE DIVISION