S v Rakoti (SR82/2004) [2004] ZAFSHC 155 (22 July 2004)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2004
>>
[2004] ZAFSHC 155
|

|

S v Rakoti (SR82/2004) [2004] ZAFSHC 155 (22 July 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Review
No.: SR82/2004
In
the Special Review between:
THE
STATE
and
MATHEWS
PENS RAKOTI
___________________________________________________________
CORAM:
CILLIé
et RAMPAI, JJ
___________________________________________________________
JUDGMENT
BY:
RAMPAI,
J
___________________________________________________________
DELIVERED
ON:
22 JULY
2004
___________________________________________________________
[1] The matter came to this court in
terms of section 116(3)(a) of the Criminal Procedure Act No. 51/1977
for review. The accused
was arrested on Sunday 13 April 2003 on a
charge of robbery committed at Moroborobo in Sasolburg on Saturday 12
April 2003. The
prosecution alleged in an annexure to the charge
sheet that he attacked and assaulted a certain Moeketsi Lawrence
Nkhome and that
he stole from him an amount of R54,00 by violent
means.
[2] He was tried in the Sasolburg District Magistrate
Court. Since he was a 17 year old minor, he was initially assisted
by his father
Mr Frans Rakoti. It is apparent from the record that
he was uncertain as to what plea he really wanted to tender. His
uncertainty
prompted the presiding magistrate Mr K.C. Dlamini to note
a plea of not guilty in terms of section 113 of Act No.51 of 1977.
There
being no explanation of the plea, the prosecution was called
upon to lead evidence.
[3] The victim was the only witness for the prosecution.
In addition to his oral testimony, the written affidavit or the J88
medical
report by the doctor was handed in as Exhibit “A” with
the consent of the accused. The accused also testified in his
defence.
[4] At the end of the trial on Monday 1 September 2003,
the accused
was convicted as charged. Instead of
sentencing the accused the presiding magistrate stayed the
proceedings in terms of section 116(1)(a)
of Act No. 51 of 1977 and
transferred the accused to the Sasolburg Regional Court for sentence.
The accused’s case was remanded
to Monday 15 September 2003 in
the said regional court.
[5] The case was postponed several times in the regional
court. In that higher forum Attorney W.J. van Wyk was appearing as
the defence
lawyer. On 3 March 2004 Ms Sanna Rakoti replaced Mr
Frans Rakoti as the accused’s guardian. The latter had died in the
meantime
as the court was informed by the lawyer on 10 February 2004.
After a few more postponements Mr E.H. Ludick, the regional court
magistrate,
decided to impose no sentence on the accused but to send
a query to the district court magistrate instead. He doubted whether
the
proceedings in the district court were in accordance with
justice.
[6] On Tuesday 6 April 2004 Mr Ludick sent a request for
written reasons to Mr Dlamini. The relevant portion of the request
made
in terms of section 116(3)(a), Act No. 51 of 1977 reads as
follows:
“
Whereas
after considering the record of the proceedings in the
magistrate
court doubt exists whether the proceedings are in accordance with
justice in that:
1. The provisions of section 51 of Act No.105 of
1997 was not explained to the accused who was a juvenile and
undefended.
2. The J88
form completed by a medical doctor was accepted and handed in as
exhibit in the magistrate’s court whereas the J88 form
does not
comply with the provisions of section 212, Act No. 51 of 1977 …..
the presiding officer in the magistrate’s court is
required to
provide reasons in respect of the issues raised above.”
[7] The district court magistrate responded to the
request of the regional court magistrate on 5 May 2004. He briefly
stated his
reasons as follows:
“ -1-
According to Annexure A of the district court charge sheet it is not
indicated that this offence falls under Schedule 2 of part 2
of the
Act 105 of 1977. The prosecutor did not inform the court that there
are aggravating circumstances.
(Part II
Schedule Two, Act No. 105/1997)
-2-
The J88 was observed (perused) by the accused and every (thing)
written on it was explained to him and the contents was read on the
record. The accused admit to the truth of the contents of the J88.”
The words in brackets are my own additions.
[8] The reservation or doubt of the
regional court magistrate has two dimensions. The one issue relates
to section
51, Act No.105
of 1977. Therefore the first dimension is
a procedural issue. It questions the correctness of the transfer.
The other issue relates
to section 212, Act No. 51 of 1977.
Therefore the second dimension is a substantive issue. It questions
the merits of the conviction.
Logic dictates that the second issue
be considered first. I proceed to do so. The conviction after all
preceded the transfer.
[9] The version of the complainant was that in the
evening of Saturday 12 April 2003 he was walking on foot on his way
home. The
street lamps were burning. He came across the accused.
He recognised him. He knew him by the name “Spens”. He knew
where
the accused’s home was situated. They passed each other
seemingly in opposite directions. Shortly after turning left towards
his
house, he heard footsteps behind him. He looked back and saw the
accused charging at him and grabbing him. The accused was armed
with
a knife. He was unarmed. The accused demanded money from him. He
resisted the attack and the robbery. The accused knifed
him on the
right shoulder blade. He fell down.
[10] As he was trying to get back on his feet again, the
second robber came. The two robbers intensified the attack. The
second
robber was also armed with a knife. He stabbed him in the
face. The accused searched him and found a wallet in the pocket of
his
pants. The robbers got away with his wallet and his ATM-card.
They ran away. He remained standing on the scene. He watched them
sharing his money which was in the wallet. They came back to him
again and demanded more money. They threatened him with the knives.

On this second occasion they scratched his neck before they again ran
away for good. The next day he reported the incident to the
accused’s parents before he went to the hospital and the police.
[11] The victim’s version is materially and
substantially supported by the accused. He basically disputed two
issues only. Firstly
he denied that he had a knife, but he admitted
he stabbed the victim though he claimed to have used the victim’s
own knife. Secondly
he denied that he robbed the victim of any money,
but he admitted that he took the victim’s wallet though he claimed
to have found
it moneyless.
[12] I have to stress that the injuries which were
inflicted upon the victim by the two robbers were never in issue.
The version
of the accused remarkably corroborated the version of the
victim. On his own version the accused was undoubtedly guilty of
robbery.
A formidable case was made out against him. I am of the
view that the conviction of the accused was justified on the strength
of
the totality of the oral evidence alone apart from the written
evidence received by way of the statutory medical report purportedly
admitted in terms of section 212(4), Act No. 51 of 1977.
[13] Exhibit “A”, in other words the J88 medical
report we are here concerned about, does not form part of the record
before me.
On the one hand the district court magistrate found it
compliant with the formalities of section 212. The regional court
magistrate
on the other hand found it non-compliant. Regretably the
latter made no attempt to spell out vividly in what respect it was
defective.
The passage of the medical report quoted by the district
court magistrate, if correctly quoted, leaves much to be desired.
For
instance the victim’s facial injury was described as “30
millimetre lacerations”. The victim’s shoulder injury was
described
as “20 metre lacerations”. Naturally I had some
difficulty with both figures. The conventional or orthodox way of
measuring
the length of a wound is to use centimetres and not
millimetres and most certainly not metres. As I see it, whatever
defects the
medical report may have and however serious such defects
may have been, cannot be said to have had an adverse impact on the
verdict
pronounced by the trial magistrate in the instant case. The
conviction could still have been safely secured without the tendering
of the medical report. After all, this was a charge of robbery and
not assault with intent to do grievous bodily harm. Therefore,
I
would confirm the conviction.
[14] I now turn to consider the first dimension of this
review. The critical question is whether the district court
magistrate was
correct or not in committing the accused for sentence
by the regional court instead of himself handing down the sentence.
Section
116(1)(a), Act No. 51/1977 reads:
“1 If a magistrate’s court, after conviction following on a plea
of not guilty but before sentence, is of the opinion –
(a) that the offence in respect of which the accused has been
convicted is of such a nature or magnitude that it merits punishment
in excess of the jurisdiction of a magistrate’s court;
(b) …
(c) …
the court shall stop the proceedings and commit the accused for
sentence by a regional court having jurisdiction.”
The following factors are relevant to
the enquiry: The accused was a juvenile offender hardly 18 years
old. The circumstances of
the crime committed in the instant case
fall far short of the magnitude of the robbery types which the
central legislator envisaged
when
section 51
of the
Criminal Law
Amendment Act No. 105 of 1997
was enacted. The victim’s physical
injuries seem to have caused him no serious permanent disability.
The amount of money stolen
from the victim was a modest amount. The
child offender had no lawyer on his side. Above all these, the
accused was never warned
by the presiding magistrate or the wording
of the charge sheet before he pleaded or at any subsequent stage
before his conviction
of the drastic provisions of section 51 of the
Criminal Procedure Amendment Act 105 of 1977.
“
In the instant case, absolutely no prior advice
was given to the accused. He was not pertinently forewarned about
section 51
of the
Criminal Law Amendment Act 105/1997. Everyone
said
nothing about it until the magistrate had found the accused guilty.
By then it was too late for the defence lawyer to tighten
her belt.
She had been ambushed. The accused’s right to a fair trial had been
violated.
Vide
S v SELEKE EN ANDERE
1976 (1) SA 786
(TPD) at 682H which was quoted with approval by
Cameron JA at par 20 in the recent decision of
S
v MICHAEL LEGOA
2002 (4) All SA 373
SCA and again by Mpati JA at par 12 in
S
v NDLOVU
,
supra
.
Stressing the concept of substantive fairness as embraced in a
guaranteed constitutional right to a fair trial, Mpati JA elucidating
the said passage in
S v SELEKE
supra
as
ably translated from Afrikaans to English by Cameron JA said:
“And I think it is implicit in these observations that where the
State intends to rely upon the sentencing regime created by the
Act a
fair trial will generally demand that its intention be pertinently
brought to the attention of the accused at the outset of
the trial,
if not in the charge sheet then in some other form, so that the
accused is placed in a position to properly appreciate
in good time
the charge that he faces as well as its possible consequences.
…
It
is sufficient to say that what will at least be required is that the
accused be given sufficient notice of the State’s intention
to
enable him to properly conduct his defence.”
per Rampai J, Ebrahim J concurring in
the unreported decision of this court delivered on 6 March 2003 in
the matter of
S v
SAMUEL NTSANE MOHAPI
,
Review No. 307/2003
.
[17] The problem in this case is that the accused had
never been charged or convicted of robbery with aggravating
circumstances.
His conviction is one of ordinary robbery and the
whole issue of section 51 is not applicable. The difference between
the maximum
sentence of three years imprisonment which the district
court is empowered to impose and the maximum sentence of 15 years
imprisonment
which the regional court is empowered to impose in terms
of its ordinary jurisdiction is substantially huge and not marginally
trivial.
Herein lies the prejudice of the transfer of the accused to
the regional court. In the regional court he faces the real jeopardy
of a sentence in excess of the district magistrate’s jurisdiction.
In the district court he faces a maximum of 3 years imprisonment.
[18] It seems to me that the district court magistrate
moved from the premise that seeing that the robbers used the knives
which are
dangerous weapons they thereby committed robbery with
aggravating circumstances which automatically attracted the
provisions of section
51. Such an approach is untenable as the
accused was not prosecuted or convicted of that offence. Having
considered the aforementioned
factors I have come to the conclusion
that the transfer of the accused to the regional court for sentence
in the circumstances of
this case was vitiated by a misdirection
seeing that the accused did not commit a scheduled offence. It
follows therefore that the
decision adopted by the district court
magistrate in referring the accused to the regional court for
sentence was based on a misconception
of the legal position. Had it
not been for that misconception, the matter would obviously never
have been transferred to the regional
court for sentence.
[19] Accordingly
I make the following order:
The conviction is confirmed. The case
is remitted to the district court
via
the regional court for the trial magistrate to sentence the accused
according to his jurisdictional powers.
________________
M.H. RAMPAI, J
I CONCUR
_____________
C.B.
CILLIé, J
/scd