S v Ntantiso, S v Papazayo (M 1/2003, 3/404/03) [2003] ZAWCHC 74; 2004 (1) SACR 171 (C) (12 December 2003)

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[2003] ZAWCHC 74
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S v Ntantiso, S v Papazayo (M 1/2003, 3/404/03) [2003] ZAWCHC 74; 2004 (1) SACR 171 (C) (12 December 2003)

Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
[CAPE OF GOOD HOPE PROVINCIAL
DIVISION]
CASE NO: M 1/2003
REVIEW CASE NO: 9/2003
HIGH COURT NO: 0035372
In the matter between:
THE STATE
and
KHABANJANI NTANTISO
CASE NO: 3/404/03
REVIEW CASE NO: 6/2003
HIGH COURT CASE NO: 0035373
THE STATE
and
NOPINKI PAPAZAYO
JUDGMENT DELIVERED ON 12 DECEMBER 2003
HJ ERASMUS, J
Where a
magistrate’s court imposes a sentence which is subject to
automatic review in terms of section 302 of the Criminal Procedure
Act 51 of 1977 (“the Act”), section 303 enjoins the clerk of the
court to forward a copy of the record of the proceedings to
the
registrar of the High Court having jurisdiction within one week of
the determination of the case.
This was not done in two matters
which were placed before me under the provisions of section 302 of
the Act. Both matters emanate
from the magistrate’s court at
Mitchells Plain which is situated in the Cape Town metropolitan area.
In the matter of
The
State v Nopinki Papazayo
(hereafter “Papazayo”) the accused
was sentenced on 26 June 2003, and in
The State v Khbanjani
Ntantiso
(hereafter “Ntantiso”) the accused was sentenced on
29 July 2003. The record of both matters reached the registrar on 21
November
2003. This means that in Papazayo the record reached the
registrar about five months after the accused was sentenced, and in
Ntantiso
about four months after the accused was sentenced.
I requested the magistrate to furnish
an explanation for the delay in forwarding the record of the two
matters. The magistrate explains
that in Papazayo the mechanically
recorded case record was dispatched by courier to the transcribers on
1 July 2003. The transcribed
record was returned to the magistrate’s
court at Mitchells Plain on 10 November 2003 and signed by the
presiding magistrate on
19 November 2003. In Ntantiso the
mechanically recorded case record was dispatched by courier to the
transcribers on 8 August 2003.
The transcribed record was returned to
the magistrate’s court at Mitchells Plain on 10 November 2003 and
signed by the presiding
magistrate on 19 November 2003.
The magistrate then states as
follows:
The
contract for the transcription of case records in respect of certain
courts in the Western Cape, including this office, was allocated
by
the Tender Board to Infotech, a firm from Durban. In terms of the
provisions of the contract all appeal and review case records
must be
forwarded to Durban for transcription.
From the outset this court and other
courts experienced major problems with transcriptions not being
transcribed within the prescribed
time limits. The matter was taken
up with the contractors and also reported to the National Office, the
Cluster Head (Chief Magistrate
of Wynberg) and to the Judge President
of the High Court. The problem was also raised and discussed with
representatives of the National
Office at the Provincial Case Flow
Management Meeting in the High Court under the chairmanship of the
Judge President.
The situation is that this court and
other courts experience the same problems and despite our
representations the position did not
really improve.
Unfortunately there is nothing that
can be done by the courts without the intervention of the National
Office. The matter has been
reported for urgent attention. Attached
correspondence regarding this for your attention.
Although this office is not at fault,
I apologise for the delay in forwarding the record.
Despite the fact that the matter has
been taken up with the contractors, with the Director-General of the
Department of Justice and
Constitutional Development and with the
Judge President, and despite the discussion of the problem at the
Provincial Case Flow Management
Meeting, there has been no
improvement. In fact, in a letter dated 6 November 2003 addressed to
the Director-General, the magistrate
of Wynberg states that “the
situation has worsened”.
I have, of course, no idea why it was
thought necessary to award the contract for the transcription of
records of courts in the Western
Cape to a firm situated in Durban.
What I do know, is that there has previously in this Division been no
delay in the transcription
of records of cases to be submitted for
review, and that the transcriptions were of high quality.
Moreover, the delay is clearly not
only due to the fact that the transcriptions are done in Durban –
the mechanical record and the
completed transcription can be moved
between Cape Town and Durban within less than the four and five
months it took in the two cases
before me! There seems to be an
inability, for whatever reason, on the part of the contractor to
produce the transcriptions promptly
and timeously. The question does,
however, arise whether a firm in Durban, even if supported by a
highly efficient postal service
and competent staff, can deliver the
transcriptions of records within the time limit laid down in section
303 of the Act?
The provision in section
303 that the clerk of the magistrate’s court must forward the
record to the registrar of the High Court
within one week after the
determination of the case has been held to be imperative (
S v
Lewies, supra,
at 103h; in
S v Mofokeng en ‘n Ander
1974
(1) SA 271
(O) a predecessor of section 303 was also held to be
imperative). Hiemstra
Suid-Afrikaanse Strafproses
6
th
ed
by Kriegler and Kruger (2002) states the position in this regard as
follows (at 801):
Gesien
die herkoms van outomatiese hersiening (
S v Mafikokoane; S v
Mokhuane
1991 (1) SASV 597 (O) op 598j—600c) en die belang
daarvan (
S v Letsin
1963 (1) SA 60
(O) op 61A—H), die
oënskynlik gebiedende taal van die artikel en, veral, dat vertraging
onherroeplike benadeling kan veroorsaak,
moet gekonkludeer word dat
die betrokke voorskrif inderdaad gebiedend is. En ofskoon die
Strafproseswet geen gevolg aan nie-nakoming
daarvan koppel nie, mag
dit wel deeglik privaatregtelike konsekwensies hê.
The expeditious dispatch
of records on review intimately concerns the fundamental rights of an
accused person. For that reason, the
High Courts have often expressed
great concern at delay in submitting matters on review. In
S v
Raphatle
1995 (2) SACR (T) at 435h,
S v Manyonyo
1996 (11)
BCLR 1463
(E) at 1465J—1466C and in
S v Lewies
1998 (1) SACR
101
(C) at 104b the following passage from
S v Letsin
1963 (1)
SA 60
(O)at 61E—H was cited or referred to with approval:
Uit
die aard van die saak val die klem deurgaans op die spoedige
voorlegging van die landdros se vonnis aan ‘n Regter vir
hersiening,
en dit is so omdat dit een van die hoogste roepinge van
die howe is om toe te sien dat die vryheid van die individu, binne
die perke
van die reg, gewaarborg sal word. Dit is ‘n ingrypende
aantasting van individuele vryheid om ‘n persoon in die gevangenis
te
laat aanhou, en dit is die dure plig van die howe en van elke
geregtelike amptenaar om toe te sien dat dit slegs sal gebeur by die
volle gesag van ‘n behoorlike regsproses … Die landdros is dus
verplig om in die uitvoering van hierdie hoë roeping van ons
howe
toe te sien dat die regsproses waarvolgens iemand van sy persoonlike
vryheid ontneem word so spoedig moontlik die volle imprimatuur
van
die resgspraak verkry, en die indruk moet nooit geskep word dat ons
howe onverskillig staan teenoor die vryheid van die individu
nie.
In endorsing these
remarks, Erasmus J in
S v Manyonyo, supra,
1466C said:
The reason for the statutory
insistence on the expeditious despatch of records on review is
generally to promote the speedy and efficient
administration of
justice, but in particular to insure that an accused is not detained
unnecessarily in cases where the court of
review sets aside the
conviction or reduces the sentence.
In
S v Lewies,
supra,
at 104b —c Traverso J (as she then was) said:
Die
hele doel van die bepalings van art 303 van die Wet is om te verseker
dat ‘n beskuldigde ‘n regverdige verhoor kry. Een van
die
essensiële elemente daarvan is om so gou as wat doenlik is,
finaliteit daaraan te gee. ‘n Vertraging van hierdie aard sal
‘n
ernstige regskending tot gevolg hê. Dat die beskuldigde se regte as
gevolg van vertraging ernstig benadeel is spreek vanself.
Ek wil my
sterkste afkeur daaroor uitspreek. Daar kan nooit reverdig(ing)
daarvoor bestaan nie.
In
S v Manyonyo,
supra,
1466D--F the question is raised, but not decided, whether
long delay in the submission of the record does not
per
se
constitute a failure of justice which would preclude the
reviewing Judge from certifying in terms of the section 304(1) of the
Act
that the proceedings were in accordance with justice. In that
case, the Attorney-General was of the view that the proceedings which
are the subject of section 304(1) are those which constitute the
trial in the magistrate’s court, and do not include subsequent
administrative action. On the other hand, it may be argued that
judicial proceedings which are subject to review in terms of sections
302 are only completed by certification under the provisions of
section 304(1), and that any administrative action which precludes
the judicial process from running its proper course according to law
may vitiate the entire process. Due to time constraints, the
matter
has not been argued before me and I shall in the two cases before me
accept that the delay is not sufficient ground for setting
aside the
conviction of the accused.
In
S v Letsin,
supra,
at 61B the following is quoted with approval from a report
submitted by two members of the Bench to the Judge President of the
Transvaal
Provincial Division and published in the
South African
Law Journal
(“On the System of Automatic Review and the
Punishment of Crime”
(1962) 79
SALJ
267—281
at 267):
One
of the important contributions made by South African law to the
administration of justice is the system of review as of course,
or,
as it is more commonly known, of automatic review … When it is
borne in mind that at least 90 per cent of the accused persons
are
either wholly or partially illiterate and that the great majority of
them are undefended, the vital importance of the system
in the
administration of justice in this country becomes apparent.
Though literacy levels have improved
and legal aid is more readily available, the statement remains as
essentially true as it was
forty years ago.
If we cherish the system of review as
of course, or automatic review, then it is unacceptable that this
form of protection of the
fundamental rights of certain accused
should be eroded by administrative bungling.
The case of Papazayao illustrates the
irreparable prejudice that delayed submission of a record on review
may cause an accused person.
The accused, an eighteen year old girl
with no previous convictions, was convicted on a charge of assault
with the intent to do grievous
bodily harm. She was sentenced to six
months imprisonment. It was a vicious and brutal assault with the
broken top of a bottle –
known to be a razor sharp and highly
dangerous weapon. In the transcription it is referred to as a “bottle
corp” which makes
no sense to me. I am sure that the witnesses used
the Afrikaans term bottle “kop” which is generally used to
describe the instrument
in question. (I may add, in passing, that
“Paulsma” in the transcription is probably a reference to the
Pollsmoor Prison in Cape
Town.) It was a “crime of passion” in
that it arose from a fight between the complainant and the accused
about gossip about a
boy friend. The conviction of assault is based
upon a finding that the accused had exceeded the bounds of self
defence.
The sentence is a heavy one for a
young first offender, but may be justified in view of the seriousness
of the assault and the injuries
that were inflicted. Had I received
the record in time, I may have been tempted to ask the magistrate his
reasons for not imposing
a suspended sentence. By the time the record
of the proceedings reached me, the accused had served five months of
her sentence of
six months and might already have been released.
Altering the sentence at this stage will make no sense.
The
accused in Ntantiso was rightly convicted on a charge of failing to
comply with a maintenance order and was given a sentence of
imprisonment suspended on appropriate conditions. The proceedings, in
my view, were in accordance with justice and can be certified
accordingly.
I would make the following order:
In The
State v
Ntantiso
the proceedings are in terms of
section 304(1)
of the
Criminal Procedure Act 51 of 1977
certified to have been in
accordance with justice.
In The
State v
Papazayo
the proceedings are in terms of
section 304(1)
of the
Criminal Procedure Act 51 of 1977
certified to have been in
accordance with justice.
The
Registrar is directed to forward a copy of this judgment to the
Director-General of the Department of Justice and Constitutional
Development.
HJ
ERASMUS, J
I agree and it is so ordered
TRAVERSO,
DJP