S v Koker, S v Molefe (78/02, 79/02) [2002] ZANCHC 11 (27 March 2002)

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[2002] ZANCHC 11
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S v Koker, S v Molefe (78/02, 79/02) [2002] ZANCHC 11 (27 March 2002)

Reportable: Yes / No
Circulate to Judges: Yes
/ No
Circulate
to Magistrates: Yes / No
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape Division)
Date
delivered
: 2002-03-27
In
the review matter of
:
THE STATE
versus
PIET
DE KOKER ACCUSED IN REVIEW CASE 79/02
TEFO
AMOS MOLEFE ACCUSED IN REVIEW CASE 78/02
Coram:
BUYS
J
et
MAJIEDT
J
JUDGEMENT
ON REVIEW
MAJIEDT J:
For the sake of
convenience I shall deal with the abovementioned matters together in
this judgement. On review I had queried in
both matters the
adequacy of the questioning by the magistrate in terms of
sec 112(1)(b) of the Criminal Procedure Act.
In the De Koker matter I
had questioned:
“
Whether the conviction was in order
given the fact that:
a) The accused was never asked, nor
did he admit that he had in fact assaulted the accused;
b) The
question of unlawfulness and knowledge of unlawfulness was never
raised with the accused?”
In the Molefe matter I
put the following question to the magistrate on review:
“
1.
Ad
Conviction
:
The
accused indicated during questioning in terms of sec. 112(1)(b) of
Act 51 of 1977 that he did not know that it was unlawful to
insult
the complainant. Is the conviction tenable in law, given this
aspect?”
In the De Koker matter
the accused had been charged with assault and the magistrate, after
the accused had pleaded guilty, questioned
him as follows:
“
In terms of sec 112(2)(sic)
Q: Do
you agrees (sic) incident took place on 26.11.01
A: Yes,
though not so certain with the date.
Q: But
would you accept that it was on 26.11.01.
A: Yes.
Q: At
Boipelo Location.
A: Yes.
Q: How
did you assault Goitsemang.
A: By
slapping her once.
Q: How
is she related to you.
A: She
is my wife.
Court
satisfied accused admits all allegations of charge.
Verdict: Guilty
as charged.”
I had pointed out to the
magistrate that the wrong section of the Criminal Procedure Act had
been quoted [sec 112(2)] and she has
acknowledged that this was
indeed the case. Be that as it may, it is clear from the
abovementioned extract from the record that
the questioning failed
to cover all the essential elements of the offence of assault,
namely:
whether the accused had
in fact perpetrated an assault on the complainant;
whether the accused
acknowledged that he had no justification in law for perpetrating
an assault on the complainant;
whether the accused
knew that he was acting unlawfully in slapping the complainant.
In the Molefe matter the
accused was charged with a contravention of the provisions of the
Domestic Violence Act, No 116 of 1998
, in that he was alleged to
have sworn at the complainant in contravention of a Court order.
The questioning after the plea of
guilty went as follows:
“
Q: You agree you insulted
complainant.
A: Yes.
Q: Why
did you insult her.
A: I
was angry over a person who stole a cellphone.
Q: Do
you know it is unlawful to insult her.
A: No
not at all.
Q: Did
the incident take place on 13.10.2001.
A: Yes.
Q: Here
in Vryburg district.
A: Correct.
Q: Do
you agree Magistrate Vryburg has issued an order against you in terms
of
Domestic Violence Act 116/1998 not
conduct yourself as you did on
13.10.2001.
A: Correct.
Public
Prosecutor: I accept the version.
Court
is satisfied that accused admits all allegations of the charge.
Accused
is found guilty as charged.”
Apart
from the fact that the magistrate had erred in commencing the
questioning with a blatantly leading question, it is abundantly
clear from the aforementioned extract from the record that the
accused specifically denied knowledge of unlawfulness. In these
circumstances a plea of
not
guilty
should have been noted.
In responding to my
queries in these two matters the magistrate has conceded that the
questioning has failed to elicit admissions
on all the essential
elements of the respective offences from the respective accused in
each case. While the concessions are correctly
made, they are of
some considerable disquiet to me. In the overwhelming majority of
cases which come before us on automatic review,
the unrepresented
accused invariably advance pleas of guilty. It is therefore
essential that the presiding officers in the lower
courts should
fully understand the purpose, nature and ambit of the provisions of
sec 112(1)(b).
There are numerous reported judgements to be
found in the law reports on this aspect which provide guidelines to
presiding officers.
Emanating from this court such guidelines are
for example to be found in:
S
v Serumala
1978(4) SA811(NC) at 815A.
S
v Mbova en andere
1996(1) SACR 239(NC) at 241 h-i.
In the present two
matters the magistrate, disconcertingly so, stated that she is
having difficulty in questioning accused persons
properly as
sec 112(1)(b)
requires. She has also made a concession that
mistakes similar to those made in the Molefe matter have been made
in two other
cases. She also appears to suggest that not all the
spontaneous explanations proffered by accused persons in the
sec 112(1)(b)
questioning are taken down by longhand. She
does, however, readily concedes that it is necessary that the record
fully reflects
which answers are being advanced by an accused during
such questioning.
An urgent revisiting of
the purpose, nature and ambit of
sec 112(1)(b)
is required on
the part of the magistrate to correct the matter.
The convictions in both
matters cannot stand and both matters should be remitted to the
magistrate.
In the premises the
following orders should be issued in my view:
A. In
the matter of
STATE
versus
PIET
DE KOKER
the
conviction and sentence is set aside and the matter is remitted to
the magistrate for proper compliance with the provisions of
sec
112(1)(b)
of Act 51 of 1977.
B. In
the matter of
STATE
versus
TEFO
AMOS MOLEFE
the conviction and sentence is set aside and the matter is remitted
to the magistrate in order that the provisions contained in sec
113
of Act 51 of 1977 be applied.
___________
SA MAJIEDT
JUDGE
I
concur and it is so ordered :
____________
AJ DU P BUYS
JUDGE