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2024
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[2024] ZAECMKHC 63
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S v Chukwumaka and Another (CA&R 104/2024) [2024] ZAECMKHC 63 (13 June 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA )
Case No. CA&R
104/2024
THE
STATE
and
TOCHUKWU
ONYEDIKA CHUKWUMAKA
ADIKA
SOLOMON
SPECIAL REVIEW
JUDGMENT
HARTLE J
[1]
This matter came before
me by way of special review in terms of the provisions of
section 304
(4) of the
Criminal Procedure Act, No. 51 of 1977
.
[2]
The circumstances are
quite bizarre and permit of no remedy other than that suggested by
Magistrate, Mr. Nqumse, who convicted and
sentenced the accused on 3
November 2023 in a sitting of the district court at Venterstad,
namely that those putative criminal
proceedings should be set aside
in their entirety.
[3]
Before the putative
plea and conviction of the accused aforesaid, it appears that they
were arraigned before the district court
on the same charge, under
case No. 36/2023. The first court appearance was on 2 May 2023.
[4]
In the ordinary course
and flow of the proceedings thus commenced, both pleaded guilty on 12
September 2023 to a charge of being
in possession of drugs (“
crystal
meth and mandrax
”)
before the Magistrate, Mr. Khaketla. They were unrepresented
and clearly at a disadvantage because they are not proficient
in the
English language. Aside from the language issues, the
magistrate was also not satisfied with their plea explanation
and
entered a plea of not guilty.
[5]
The matter stood down
to allow them to apply for Legal Aid and inevitably it was postponed
for trial and to obtain the services
of a Cebuano interpreter.
[6]
At some point the
original charge sheet was misplaced. In the result the matter
was postponed on a few occasions on a duplicate
charge sheet in order
to trace the original court record.
[7]
The duplicate charge
sheet unfortunately gave the appearance that the matter was being
postponed for purposes of both plea and trial.
[8]
This misconception was
repeated by both the State and defence counsel when the matter came
before Magistrate Nqumse on 3 October
2023. Indeed, the
accused’s legal representative confirmed their readiness to
plead to the charge, missing the fact
that they had already pleaded
thereto.
[9]
Magistrate Nqumse duly
took their plea, convicted both accused on their pleas of guilty and
sentenced each to three years’
imprisonment.
[10]
Approximately six
months after sentence, a newly appointed attorney applied on their
behalf for leave to appeal against sentence
and in the course of
transcribing the court record it came to light that the accused had
previously pleaded not guilty to the same
charge before Magistrate
Khaketla and that those proceedings, commenced by their pleas, are by
obvious implication still pending.
[11]
The parties agree that
the best course of action in all the circumstances is to have
Magistrate Nqumse’s convictions and sentences
set aside. I am
persuaded that the putative proceedings are indeed not in accordance
with justice and fall to be set aside on such
a basis.
[12]
I am grateful to the
parties and Magistrate Nqumse for the initiative shown in addressing
the anomaly.
[13]
I had in mind to direct
that the proceedings commence
de
novo
given the
obvious fact that the accused were not assisted by an interpreter
when they pleaded before Magistrate Khaketla, but that
issue has been
overtaken by the event that the court entered a plea of not guilty.
The accused also presently enjoy the benefit
of legal
representation. It goes without saying that they will require
to continue to be assisted in the proceedings going
forward by Legal
Aid SA and by a Cebuano interpreter until finalisation of the matter.
[14]
In the result I issue
the following order:
1.
The putative
proceedings entailing the conviction and sentence of the accused by
Magistrate Nqumse on 3 October 2023 in the Venterstad
District Court
under Case No 36/2023 are set aside in their entirety.
2.
The matter is remitted
to the court to complete and finalise the trial on the basis of the
proceedings which commenced on 12 September
2023.
3.
The accused are to be
afforded legal representation by the Legal Aid SA.
4.
Suitable arrangements
must be made for the availability of a Cebuano interpreter to assist
the accused in the proceedings.
B HARTLE
JUDGE OF THE HIGH
COURT
I AGREE,
S COLLETT
ACTING JUDGE OF THE
HIGH COURT
DATE OF JUDGMENT:
13 June 2024