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[2024] ZALMPPHC 54
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S v Nchabeleng (Rev 47/2024) [2024] ZALMPPHC 54 (28 May 2024)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: Rev 47/2024
In
the matter between:
THE
STATE
And
KAIZER
NCHABELENG
ACCUSED
REVIEW
JUDGEMENT
KGANYAGO
J
[1]
The accused was charged with the offence of contravention of the
provisions of section 31(1) of the
Maintenance
Act
[1]
(the Act) (failure to pay maintenance). On 31
st
May 2021 he appeared before acting magistrate Nkgapele in Lenyenye
magistrate court, and he pleaded guilty to the charge. He was
convicted in accordance with his guilty plea and sentenced to
R3000.00 or 12 months imprisonment wholly suspended for a period
of
24 months on condition that the accused pays extra R200.00 to the
existing court order of R1000.00 per month until the arrears
were
paid off and the accused was not convicted of the offence of
contravention of section of section 31(1) of the Act during the
suspension period.
[2]
The matter was only brought for automatic review before this court
during April 2024. In the memo for
review, Mr Phakula the head of
court Lenyenye magistrate court alleges that during his official
routine inspection he found the
file of this matter hidden in the
filing cabinet in the office used to be occupied by Mr Nkgapele for
reasons unknown to him. According
to the head of court, during the
first week of June 2021 shortly after the matter was finalised, he
took the charge sheet and gave
it to Mr Nkgapele to liaise with the
clerk of the criminal court to have the J4 prepared for the purposes
of an automatic review.
The J4 was prepared and given to Mr Nkgapele
for his signature. The entire documents comprising of the J4, J15,
J605 and the transcribed
record were not returned to the clerk of
court, and were reported to have been misplaced in Mr Nkgapele’s
office. They were
found when they were removing all books from all
magistrates’ filing cabinets for donations of the books. That
is the explanation
for the delay in failing to timeously bring this
matter for automatic review.
[3]
According to the head of court in his memo, the accused
constitutional right to a fair trial has been
violated and the whole
proceedings are not in accordance with real and substantial
justice. The accused trial was the shortest
which the head of court
has ever encountered wherein 12 questions run the race in the entire
transcribed record. Even though the
accused right to legal
representation was explained, the accused was not warned of the
nature, the seriousness of the offence and
the consequences in the
event of conviction. The accused has not been warned of the
consequences of conducting his own defence
that it may lead to
undesirable consequences. The charge sheet is defective for lack of
the essential elements of the offence.
It has not been established if
the accused had pleaded guilty freely, voluntarily and without any
undue influence, and whether
he was in his sound and sober senses.
The questioning by the presiding officer was of poor quality that a
reasonable court acting
carefully could not convict. Both the accused
and the prosecutor were not afforded an opportunity to present
evidence in mitigation
and aggravation of sentence nor an opportunity
to address the court on an appropriate sentence. The accused rights
to legal representation
for an appeal or review procedure after the
conviction and sentence were not explained at all. The admissions
made by the accused
during the plea proceedings do not adequately
cover all the essential elements of the offence, and that the accused
has been harnessed
with an inappropriate, unjustified and unnecessary
previous conviction.
[4]
The Deputy Director of Public Prosecutions (DDPP) was requested to
comment of which they did, and I
am indebted to them. According to
the DDPP the conviction of the accused was not in accordance with
justice, and the reviewing
Judge may set aside the proceedings and
declare same a nullity.
[5]
The head of court had made serious allegations that he found the file
hidden in the filing cabinet for
reasons unknown to him. By
implication it was hidden by Mr Nkgapele instead of submitting the
file for automatic review. These
are serious allegations which had
the potential to destroy the reputation of Mr Nkgapele. The head of
court did not give Mr Nkgapele
an opportunity to defend himself
before coming to that conclusion. It was not sufficient to say that
he tried to call Mr Nkgapele
and his phone rang unanswered, and he
did not return his calls. That was not a ground for him to reach that
conclusions which might
have far reaching consequences without giving
Mr Nkgapele an opportunity to defend himself. He should have taken
other reasonable
steps to contact Mr Nkgapele, which it seems he did
not do. As Mr Nkgapele was acting, the head of court should have
known him
from somewhere before he called him to act, and it can
therefore not be said with certainty that he was untraceable. If
indeed
Mr Nkgapele had hidden the file, it means he is dishonest and
lacks integrity.
[6]
It is surprising that the head of court had reached such a conclusion
whilst in the same breath he had
stated that it was reported that the
file had been misplaced in Mr Nkgapele’s office, and could not
be found after a reasonable
and diligent search. It was only found
when they remove all the books from every magistrates’ filing
cabinets. Without Mr
Nkgapele’s version of events it will be
difficult to say with certainty that the file was hidden. It is vital
for a party
to be given an opportunity to deal with the issues fully,
including allowing that party to make all the relevant facts
available
before an adverse finding is made that a person is
dishonest or lacks integrity. (See
National
Director of Public
Prosecutions
v Zuma
[2]
and Motswai v RAF
[3]
).
In my view, it was unwarranted by the head of court to conclude that
the file was hidden with unsubstantiated facts before him.
[7]
The head of court in his memo has stated that the charge which the
accused is facing was defective for
lack of the essential elements of
the offence. The charge against accused reads as follows:
“
Failure to pay
maintenance
“
That the said
accused being the person to whom a court of law, to wit MAGISTRATE
COURT LENYENYE on the 28 day of November 2021 has
made an order for
the periodical payment of the sums of money to wit R1000.00 towards
the maintenance of HIS CHILDREN did wrongfully
during the period
APRIL 2020 TO FEBRUARY 2021 and at LENYENYE in the district of
TZANEEN fail to make payments in terms of the
said order and that the
said accused did thus contravene sections 31(1) of the Maintenance
Act 99/1998. And that the said accused
is in arrears of R9100.00”.
[8]
Section 84 of the
Criminal
Procedure Act
[4]
(CPA) reads as follows:
“
[1] Subject to the
provisions of this Act and of any other law relating to any
particular offence, a charge shall set forth the
relevant offence in
such a manner and with such particulars as to the time and place at
which the offence is alleged to have been
committed and the person,
if any, against whom and the property, if any, in respect of which
the offence is alleged to have been
committed, as may be reasonably
sufficient to inform the accused of the nature of the charge.
[2] Where any of the
particulars referred to in subsection (1) are unknown to the
prosecutor it shall be sufficient to state that
fact in the charge.
[3] In criminal
proceedings the description of any statutory offence in the words of
the law creating the offence, or in similar
words, shall be
sufficient”.
[9]
The purpose of the charge is to inform the accused the case which the
State intends to prove against
him/her. Sufficient details of the
offence should be included in the charge to inform the accused of the
allegations levelled against
him/her. In
Msimango
v S
[5]
Bosielo JA said:
“
Section 35(3)
falls under chapter 2 of the Constitution under the heading, the Bill
of Rights. Section 7 of the Constitution commands
the state to
respect, protect, promote and fulfil the Rights in the Bill of
Rights. However, this is subject to legitimate limits
in terms of s
36 of the Constitution. The requirement embodied in s 35(3) is not
merely formal but substantive. It goes to the
very heart of what a
fair trial is. It requires the state to furnish the accused with
sufficient details to put him or her in a
position where he or she
understands what the actual charge is which he or she is facing. In
the language of s 35(3)(a), this is
intended to enable such an
accused person to answer and defend himself in the ensuing trial. Its
main purpose is to banish any
trial by ambush. This is so because our
criminal justice is both adversarial and accusatory”.
[10]
In the case at hand the manner in which the charge has been
formulated, it described the offence which the
accused is facing as
failure to pay maintenance in terms of section 31(1) of the Act. It
further state the place wherein the maintenance
order was obtained,
and also the amount which the accused was supposed to pay towards the
maintenance of his children. It also
state the time period in which
it is alleged that the accused had failed to pay and the arrear
amount for that time period. This
is not a complicated case, and the
nature of this offence is that the accused is aware that he is or he
is not in arrears. If he
was not certain about the time period and
amount owing as he might have been making sporadic payments, that has
been stated.
[11]
Section 88 of the CPA provides that a defective charge for want of an
averment which is an essential ingredient
of the relevant offence may
be cured by evidence during trial proving the matter which should
have been averred. The charge as
it has been formulated against the
accused, is such that the accused has been informed of the case which
the State intends to prove
against him, and the details provided in
that charge are sufficient to enable the accused to answer and defend
himself. Any other
issues may be supplemented by evidence during the
trial. There is no merit in the submission by the head of court that
the charge
against the accused is defective.
[12]
The accused had pleaded guilty to the charge and during questioning
by the court
a quo
in terms of section 112(1)(b) of the CPA,
the accused had conceded that he had failed to pay maintenance as per
the court order
during the period April 2020 and February 2021 as he
was having financial problems. Despite the accused having raised the
issue
that his failure to pay was due to financial problems, the
court
a quo
did not consider that as a possible defence and
invoke the provisions of section 113 of the CPA.
[13]
Section 31(2) of the Act provides as follows:
“
If the defence is
raised in any prosecution for an offence under this section that any
failure to pay maintenance in accordance
with a maintenance order was
due to lack of means on the part of the person charged, he or she
shall not merely on the grounds
of such a defence be entitled to an
acquittal if it is proved that the failure was due to his or her
unwillingness to work or misconduct”.
[14]
In terms of the wording of section 31(2) of the Act, lack of means is
regarded as a possible defence to the
offence which the accused was
facing. It was therefore upon the State to prove that his failure to
pay was due to his unwillingness
to work or misconduct. Therefore,
the court
a quo
ought to have invoked the provisions of
section 113 of the CPA by changing the plea of guilty to that of not
guilty, and given
the prosecution an opportunity to disprove the
defence raised by the accused. The court
a quo
has committed a
gross irregularity by failing to invoke the provisions of section 113
of the CPA.
[15]
After the accused had pleaded guilty to the charge, the entire record
of the proceedings read as follows:
“
COURT: Are you the
person that an order was made against in this maintenance matter?
ACCUSED: Yes
COURT: Did you fail to
pay maintenance between April 2020 and February 2021?
ACCUSED: Yes
COURT: Why did you not
make payments?
ACCUSED: I caught a
financial problem.
COURT: Did you approach
the maintenance office to inform them of such?
ACCUSED: No
COURT: Did you know that
by not paying maintenance you are contravening a court order?
ACCUSED: Yes
COURT: The court is
satisfied that you are acknowledging all the elements of the offence
and the court hereby finds you guilty as
charged.
PROSECUTOR: We are not in
possession of his SAP 69, may he be treated as a first offender?
COURT: The court has
already found you guilty as charged. Do you want to give evidence in
mitigation of sentence, or you are going
to address the court from
where you are?
ACCUSED: I intended to
settle those arrears your worship.
COURT: How?
ACCUSED: The idea is that
on the existing order of R1000.00, I make an additional of R200.00
until the whole arrears is settled
your worship.
COURT: When you intending
to start paying that?
ACCUSED: Next month, your
worship.
COURT: Can I have a new
first appearance form?
PROSECUTOR: Your worship?
COURT: I have a first
appearance form. The sentence reads like this.
SENTENCE
You are sentenced to a
fine of R3000.00 or 12 months imprisonment wholly suspended for a
period of 24 months on condition that you
pay R200.00 per month extra
to the current maintenance order of R1000.00, meaning that you are
going to pay R1 200.00 per month
until the arrears are paid off and
that you are not found guilty of contravening section 31(1) of Act
99, 1998 during the period
of suspension.
ACCUSED: Understood.
COURT: Your first
instalment will be on 30
th
June.
ACCUSED: Fine.
COURT: Okay you are
excused
COURT ADJOURNS
[16]
The main purpose of questioning in terms of section 112(1)(b) is to
protect an accused, especially unrepresented
accused from pleading
guilty whilst they might be having a defence to the offence they are
accused of. In
S
v Nyanga
[6]
Moosa J said:
“
Section 112(1)(b)
questioning has twofold: firstly, to establish the factual basis for
the plea of guilty and, secondly to establish
the legal basis for
such a plea. For the first phase of the enquiry, the admissions made
may not be added to by other means such
as a process of inferential
reasoning…The second phase of the enquiry amounts essentially
to a conclusion of law based on
the admissions. From the admissions
the court must conclude whether the legal requirements for the
commission of the offence have
been met. They are the questions of
unlawfulness,
actus reus
and
mens rea
. These are
conclusions of law. If the court is satisfied that the admissions
adequately cover all these elements of the offence,
the court is
entitled to convict the accused on the charge to which he pleaded
guilty”.
[17]
From the questioning by the court
a quo,
the accused did not
admit all the elements of the offence he had been convicted of. It
does not appear on the transcribed record
that the accused had
admitted wrongfulness and unlawfulness. The court
a quo
had
merely posed leading questions which did not establish any
wrongfulness or unlawfulness. Even when the accused raised the issue
of been caught in a financial problem, the court
a quo
did not
enquire further on that issue. In terms of section 41(a) of the Act
if during the proceedings of an offence referred to
in section 31(1),
it appears to the court that it is desirable that a maintenance
enquiry be held, or when the public prosecutor
so request, the court
shall convert the proceedings into such an enquiry.
[18]
With the accused having raised the issue of been caught in a
financial problem as the main reason for his
failure to maintenance
as per the court order, the court
a quo
had two options, to
either regard that as defence and invoke the provisions of section
113 of the CPA or convert the proceedings
into a maintenance enquiry,
and not just ignore it. His failure to act in terms of section 113 of
the CPA or converting the proceedings
into a maintenance enquiry
amount to a gross irregularity.
[19]
What is more concerning is the procedure which the court
a quo
had followed after convicting the accused. The court
a quo
had
asked the accused whether he wish present mitigating factors from the
bar or whether he wishes to testify under oath. The accused
seems not
have understood that question as his answer was that he intended to
settle the arrears without answering the question
put to him. The
court
a quo
did not explain to the accused what the mitigating
factors are, its purpose and importance, and that what he had
answered was not
what the court was seeking. The court
a quo
only considered the manner in which the accused intends to settle his
arrears as mitigating factors and proceeded to sentence the
accused
without even affording the parties an opportunity to present any
evidence in aggravation or mitigation if they so wish,
and thereafter
for the parties to address the court on the appropriate sentence.
[20]
Section 274 of the CPA provides as follows:
“
[1] A court may,
before passing sentence, receive such evidence as it thinks fit in
order to inform itself as to the proper sentence
to be passed.
[2] The accused may
address the court on any evidence received under subsection (1), as
well as on the matter of sentence, and thereafter
the prosecution may
likewise address the court”.
[21]
Even though as per the wording of section 274 it is not peremptory to
present mitigating and aggravating
factors, it is of paramount
importance and fair to the proper conduct of the trial, that both
parties be given an opportunity to
place relevant facts before court
regarding the proper sentence to be given to the accused. An
unrepresented accused should be
explained the importance of placing
mitigating factors before court, and also be encouraged to do so, and
if need be also be assisted
in presenting those factors.
[22]
In the case at hand the accused personal circumstances have not been
placed before court. It is not known
whether the accused is employed,
and if employed how much is his earning, his debts and monthly
expenses. The court
a quo
in my view, had committed gross
irregularity in the manner in which it had passed sentence without
affording the parties an opportunity
to address it on sentence and
place relevant facts to enable the court
a quo
to pass a
proper sentence on the accused.
[23]
Even after the passing of sentence, the accused right to appeal or
review has not been explained to him.
Since the level of education of
the accused has not been placed before court, it will not be known
whether the accused was aware
of his right to appeal or review. In my
view, the manner in which the proceedings were conducted in this
matter resulted in grave
injustice against the accused and that
taints the whole proceedings. The proceedings in this case does not
appear to be in accordance
with justice and stands to be reviewed and
set aside.
[25]
In the result the following order is made:
25.1
The conviction and sentence of the accused is reviewed and set aside.
25.2
The matter is remitted back to the magistrate court for a hearing
de
novo
before another magistrate if the prosecution still wishes to
pursue the charges against the accused.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
I AGREE
____________________________________
PILLAY
AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
Electronically
circulated on
: 28
th
May 2024
[1]
99
of 1998
[2]
2009
(2) SA 277 (SCA)
[3]
2014
(6) SA 360 (SCA)
[4]
51
of 1977
[5]
2018
(1) SACR 276
(SCA) at para 16
[6]
2004
(1) SACR 198
(C) at 201b-e