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[2024] ZAKZPHC 56
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S v Ntanzi and Others (DR15/2024; DR14/2024; DR13/2024; DR16/2024; DR12/2024) [2024] ZAKZPHC 56; 2024 (2) SACR 403 (KZP) (1 July 2024)

IN
THE  HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION : PIETERMARITZBURG
In
the matter between:
THE
STATE
versus
MBHEKISENI
SIBONISO NTANZI

ACCUSED
REVIEW
CASE  NO.:  DR15/2024
MAGISTRATE’S
CASE NO.: DCB 30/2024
MAGISTRATE’S
SERIAL REVIEW NO.: B01/24
JOYCE
SBONGILE OLIPHANT

ACCUSED
REVIEW
CASE  NO.:  DR14/2024
MAGISTRATE’S
CASE NO.: DCB 40/2024
MAGISTRATE’S SERIAL REVIEW NO.:
B06/24
MBHEKISENI
MBUYISANI BUTHELEZI

ACCUSED
REVIEW
CASE  NO.:  DR13/2024
MAGISTRATE’S
CASE NO.: DCB 35/2024
MAGISTRATE’S
SERIAL REVIEW NO.: B04/24
LIZWI
MESULI MTHETHWA

ACCUSED
REVIEW
CASE  NO.:  DR16/2024
MAGISTRATE’S
CASE NO.: DCB 36/2024
MAGISTRATE’S
SERIAL REVIEW NO.: B05/24
JABULANI
SIMPHIWE SIBIYA

ACCUSED
REVIEW CASE  NO.:  DR12/2024
MAGISTRATE’S
CASE NO.: DCB 31/2024
MAGISTRATE’S
SERIAL REVIEW NO.: B02/24
SPECIAL
REVIEW  JUDGMENT
Delivered on :
OLSEN
J  (BEDDERSON J concurring)
[1]
The Acting Senior Magistrate, Lower Umfolozi Sub-Cluster at the
magistrates’ court, Empangeni,
Mr MN Nhleko has submitted the
records of the five cases which appear in the heading to this
judgment for special review in terms
of s 304 of the Criminal
Procedure Act.  The five cases come to us together as they are
of the same type in the sense that
they involved a charge of the same
offence in each case, were heard by the same magistrate and suffer
from similar defects.
[2]
When referring specifically to each case I will refer to the “matter
of Ntanzi” or
the matter of “Oliphant”, and so on.
[3]
The accused in each of these cases was charged with an offence set
out in a standard form charge
sheet, the material portion of which
reads as follows.
‘
The
accused is guilty of the contravening section 50(1) of the National
Land Transport Act 5 of 2009 (the Act) read with Sections
1,
90(1)(a), 90(2)(a), 90(3) of the aforementioned Act.
Operate
a road based public transport.
In
that on or about the [a date is inserted] and at or near [the place
is inserted] which is a public road in the district of King

Cetshwayo, the accused did wrongfully and unlawfully operate a road
based public transport service to wit [the type and registration

number of the vehicle is inserted] without holding the necessary
permit and or operating licence, while carrying passengers for

reward.’
The
standard form charge sheet contains an alternative count which was
not put to any of the accused.
[4]
The
National Land Transport Act provides
in
s 50(1)
that no person
“may operate a road-based public transport service, unless he
or she is the holder of an operating licence
or a permit, subject to
Sections 47
,
48
and
49
issued for the vehicle concerned in terms of
this Act.”  The word “permit” is defined in s
1 of the Act
as one issued in terms of the Road Transportation Act of
1977, and recognised as valid under the
National Land Transport
Transition Act, 22 of 2000
.  Permits do not appear to be
material in any way to the five cases which are the subject of this
review.
[5]
Section 1 of the Act defines an “operator” as a person
carrying on the business of
operating a public transport service.
It is apparent from the record of the proceedings that the offence
relied upon
by the State is that set out in s 90(1) of the Act, which
renders a person guilty of an offence
‘
if
that person operates a public transport service in contravention of s
50’.
[6]
I will give a brief description of the record of the hearing in each
of the five cases, concentrating
mainly on the issues to which Mr
Nhleko has referred this court.
THE
MATTER OF NTANZI
[7]
The case opened with a request to the magistrate to explain the
accused’s rights with regard
to legal representation.  The
magistrate then read the main count to Mr Ntanzi, starting rather
unfortunately with the words
“you are guilty of contravening
Section 50(1) …”.  (Perhaps a typographical error
occurred.)  The
magistrate moved on immediately to inform Mr
Ntanzi of his rights to a lawyer and that he had the right to apply
to the Legal Aid
Board attorney who is before the court.  Mr
Ntanzi said he would apply for legal aid and a Mr Nzuza then stepped
forward.
[8]
Mr Nzuza features in all of the five cases.  His status is not
clear. He is variously presented
as an attorney appearing pro bono,
or as the legal aid attorney.  In one of the five cases Mr Nzuza
advises the court that
legal aid is not available for road traffic
matters.
[9]
Be that as it may Mr Nzuza advised the court that it would not be
appropriate for his client to
plead guilty because he had a defence
along the lines that he had an operating permit, albeit not one for
the vehicle now used
which has replaced his original vehicle which
was destroyed in an accident.  The court then proposed the next
available date
for the hearing of a defended trial, whereupon Mr
Nzuza advised the court that Mr Ntanzi cannot wait that long and that
there will
be a plea of guilty “in terms of Section
112(1)(a)”.  (The reference is obviously to
s 112
of the
Criminal Procedure Act, 1977
.)  The prosecutor said the state
would accept the plea “in terms of
s 112(1)(a)
”,
whereupon the charge was put to the accused by the prosecutor.
The accused pleaded guilty. Mr Nzuza confirmed the
plea and the
prosecutor formally accepted the plea.  The prosecutor then
asked the court to “assist with the verdict”.
The
magistrate responded by expressing her satisfaction that all the
elements of the case before the court were admitted.
There was
no formal statement that the accused was found guilty.  The
court proceeded straight to sentence without inviting
any submissions
on the subject.  The sentence imposed was R2000 or three months’
imprisonment.
[10]
There can be no doubt about the proposition that in a criminal case
the court is bound to express its decision
to convict the accused, or
find him guilty, in so many words so that it is clear to the accused
that the issue of criminal responsibility
has been disposed of.
That is the gateway to the next phase of the proceedings where it is
legitimate for the court to be
furnished with information relevant to
sentence which would not be appropriate or permissible before
conviction, encompassing,
perhaps, remorse and obviously whether the
accused has any previous convictions.
[11]
In Mr Ntanzi’s case he was not convicted and he was not
afforded any opportunity to make submissions
on sentence.  The
proceedings were not in accordance with justice.
THE
MATTER OF OLIPHANT
[12]
The case of Ms Joyce Oliphant commenced in much the same way as the
case of Mr Ntanzi, although when the
magistrate told her of the
charge against her she was not told that she was guilty of it.
She said that she required legal
aid and Mr Nzuza stepped forward to
say that a plea would be tendered.  The prosecutor said that the
State would accept the
plea, again in terms of
s 112(1)(a).
[13]
The prosecutor read the main count, Ms Oliphant was asked whether she
understood the charge, and answered
in the affirmative;  and
said that she confirmed the plea which the State then accepted.
The next entry in the record
is the court saying “Nzuza,
mitigating factor”.  Mr Nzuza then addressed on sentence,
the principle factor being
that Ms Oliphant was 72 years of age.
The prosecutor then made his address without referring to the
seriousness of the offence.
[14]
After the addresses on sentence the magistrate recorded that she
noted that Ms Oliphant had “admitted
all the elements for this
offence”.  The record shows no formal statement of
conviction.  (There might have been
one because the record
reveals that the recording was muted at that crucial time for 22
seconds.)  The magistrate then imposed
the sentence which in
this case was a fine of R2000 or two months’ imprisonment.
[15]
In my view the referring magistrate is correct in his complaint that
there appears not to be any verdict,
and his complaint that you
cannot render your judgment on the merits at the same time as passing
sentence, or hear submissions
on sentence before the accused is
actually convicted.  This trial was also not conducted in
accordance with justice.
THE
MATTER OF BUTHELEZI
[16]
This case followed the same route at the case of Ms Oliphant until
the close of submissions on sentence.
The magistrate then
delivered a judgment on sentence, setting out the various submissions
which had been made by Mr Nzuza, adding
at the end that, in the light
of the “evidence” submitted by Mr Nzuza, she was
satisfied that Mr Buthelezi was admitting
all the elements of the
offence. The only submissions made by Mr Nzuza were on the subject of
sentence. Having done that the verdict
was in this case pronounced,
that is “guilty as charged”. Mr Buthelezi was sentenced
to a fine of R3000 or three months
imprisonment.  For the same
reasons as discussed above, this trial was also not conducted in
accordance with justice.
THE
MATTER OF  MTHETHWA
[17]
Mr Mthethwa said that he would represent himself and then, pressed on
the reason why he was doing so, said
that it was because he intended
to plead guilty.  What followed was unacceptable.  The
court asked Mr Mthethwa whether
he wanted to testify “standing
there or do you want to come to the witness box?”.  Mr
Mthethwa clearly did not
understand.  The court admonished him,
saying that he should not waste the court’s time.  And
finally Mr Mthethwa
was addressed as follows.
‘
What
is so difficult about conducting your own defence?  You said you
understand the court proceedings, so why now are you
not
proceeding?’.
At
that Mr Mthethwa said he “changed his version” and would
apply for legal aid whereupon Mr Nzuza advised that legal
aid would
not be granted but that he would assist
pro bono
.
[18]
Mr Nzuza then confirmed that the plea was in accordance with his
instructions.  The State said it would
accept the plea “in
terms of
Section 112(1)(a)
of the
Criminal Procedure Act&rdquo
;.
The court then turned to Mr Nzuza who said “I was waiting for
the court’s verdict.  Since the State accepted
the plea,
then – or should I just proceed with mitigation Your Worship?”
The court answered in the affirmative.
[19]
Mr Nzuza then made his address dealing essentially with the personal
circumstances of the accused.
The prosecutor addressed briefly
on the subject of sentence and asked for one which would deter Mr
Mthethwa from committing the
same offences again.
[20]
The court then delivered its reasons for the sentence it proposed to
impose which turned out to be a fine
of R3000 or three weeks’
imprisonment.
[21]
The charge was never put to Mr Mthethwa.  No verdict was
pronounced.  The proceedings were not
in accordance with
justice.
THE
MATTER OF SIBIYA
[22]
Mr Sibiya said initially that he would conduct his own defence
because he intended to plead guilty, but Mr
Nzuza was called in to
assist. When he said that
s 112(1)(a)
would apply the State said that
it was willing to accept the plea in terms of
s 112(1)(a).
On
this occasion the charge was put to the accused.
[23]
On this occasion the magistrate delivered a seven line judgment
before expressly finding Mr Sibiya guilty
of the offence.  The
final sentence of the judgment is the one which apparently justified
the plea of guilty.  It reads
as follows.
‘
Having
heard the submissions by your defence attorney and by the State,
therefore the court is satisfied that you are admitting
all the
elements of this offence.’
In
fact no submissions were made by either Mr Nzuza or the prosecutor.
[24]
There were then submissions on the subject of sentence, both Mr Nzuza
and the prosecutor accepting that the
offence is a serious one. In
effect Mr Nzuza’s submission was that whilst it was well known
that a lot of violence in the
taxi industry emanates from disputes
over the use of routes, and that those who render a service without
an operating licence contribute
to that phenomenon, in this
particular case, he said, no such violence had arisen as a result of
Mr Sibiya’s conduct.
The prosecutor acknowledged the
phenomenon and made the submission that the fact that violence had
not occurred in this case did
not excuse the fact that the lives of
passengers had been put in danger. In the judgment on sentence the
court recorded that it
considered this all important factor and
imposed a fine of R3000 or imprisonment for three months.
[25]
On this occasion one is just able to reach the conclusion that the
proceedings were in accordance with justice,
but only insofar as the
material discussed above addresses the concerns of Mr Nhleko, which
arose in the four other matters.
SECTION
112(1)(a)
OF THE
CRIMINAL PROCEDURE ACT
[26
]
Section 112(1)
of the
Criminal Procedure Act reads
as follows.
‘
Where
an accused at a summary trial in any court pleads guilty to the
offence charged, or to an offence of which he may be convicted
on the
charge and the prosecutor accepts that plea-
(a)
the presiding judge, regional
magistrate or magistrate may, if he or she is of the opinion that the
offence does not merit punishment
of imprisonment or any other form
of detention without the option of a fine or of a fine exceeding the
amount determined by the
Minister from time to time by notice in the
Gazette
,
convict the accused in respect of the offence to which he or she has
pleaded guilty on his or her plea of guilty only and-
(i)
impose any competent sentence,
other than imprisonment or any other form of detention without the
option of a fine or a fine exceeding
the amount determined by the
Minister from time to time by notice in the
Gazette
;
or
(ii)
deal with the accused otherwise
in accordance with law;
(b)
“
the presiding judge,
regional magistrate or magistrate shall, if he or she is of the
opinion that the offence merits punishment
of imprisonment or any
other form of detention without the option of  a fine or of a
fine exceeding the amount determined
by the Minister from time to
time by notice in the
Gazette
,
or if requested thereto  by the prosecutor, question the accused
with reference to the alleged facts of the case in order
to ascertain
whether he or she admits the allegations in the charge to which he or
she has pleaded guilty, and may, if satisfied
that the accused is
guilty of the offence to which he or she has pleaded guilty, convict
the accused on his or her plea of guilty
of that offence and impose
any competent sentence.’
[27]
The amount of the fine determined by the Minister for the purpose of
this section is R5000.
[28]
Section 112(1)
of the
Criminal Procedure Act deals
with guilty pleas
unaccompanied by a written statement such as is contemplated by
s
112(2).
The purpose of
s 112(1)(a)
is in general to promote
efficiency in court proceedings in respect of minor offences.
The section does not in so many words
refer to minor offences, but
instead confines the power of the court to convict on a plea of
guilty alone to cases where the magistrate
is of the opinion that the
offence does not merit punishment of imprisonment (or any other form
of detention) without the option
of a fine or a fine in excess of
R5000.  (See
S v Gumede and Others
2020 (1) SACR 644
(KZP)).  The magistrate “may” convict on the plea of
guilty without further ado in those circumstances.
The word
“may” conveys that the magistrate does not have to do
so.  The magistrate may proceed under
s 112(1)(b)
even if she or
he is of the opinion that the conviction will not merit punishment of
imprisonment without the option of a fine,
or of a fine in excess of
R5000.
[29]
The pleas conveyed by Mr Nzuza in these cases – “guilty
in terms of
s 112(1)(a)
” - come perilously close to what is
clearly not permitted, that is to say a plea tendered on condition
that the magistrate
does not question the accused.  The
magistrate should not let that pass.  A plea of guilty which may
be regarded as conditional
should not be permitted.
[30]
The decision as to whether a conviction may follow a plea of guilty
without more is one for the magistrate,
unless the prosecutor
requests that the accused be questioned as contemplated by
s
112(1)(b).
Again, it is not appropriate for the prosecutor to
state that the plea is accepted in terms of
s 112(1)(a).
If all
that it is intended by that is to convey that the prosecutor is not
going to request that the accused be questioned,
then that is the way
it ought to be put by the prosecutor to the court.
[31]
In
Gumede
at paragraph 41 (d) the following conclusion was
reached concerning represented accused persons.
‘
In
the case of a represented accused, the default position is that the
magistrate may rely on the competence of the advice given
by a legal
representative to the accused person who pleads guilty.
However, it cannot be
regarded as compulsory for a magistrate to proceed without
questioning a represented accused
.’
(Own
emphasis.)
[32]
When a magistrate is of the opinion that a conviction on a plea of
guilty alone would generate a sentence
falling within the range
permitted by
s 112(1)(a)
she has a discretion as to whether, despite
that opinion, the accused person should be questioned.  The
discretion is to be
exercised judicially.  (See
Gumede
at
paragraphs 41 (a) and (b)).  Whilst the fact that an accused
person is legally represented is clearly a factor that has
to be
taken into account when exercising that discretion, that factor is
not decisive.
[33]
It is clear from the records in all five cases placed before the
court on review that the magistrate was
dealing with accused persons
whose primary goal was getting in and out of court as quickly as
possible.  Whilst each record
reveals that Mr Nzuza had
instructions on the personal circumstances of each accused which
might have a bearing on sentence, there
is no sign that he had
instructions, except perhaps in the case of Ntanzi, of the facts of
each case as far as the merits of the
plea were concerned.  (Of
course that does not mean that Mr Nzuza did not in fact canvass those
issues.)
[34]
In my view there are a number of factors which lead me to the
conclusion that the magistrate misdirected
herself in not questioning
the accused in terms of
s 112(1)(b)
in each of these cases.
[35]
The first of the these is the concept of a fair trial which, in terms
of the Constitution, is the bedrock
of our criminal justice system.
The following passage from paragraph 11 of the judgment in
S v
Dzukuda and Others; S v Tshilo
[2000] ZACC 16
;
2000 (2) SACR 443
(CC) states the
principle which should underlie the exercise of a judicial discretion
as to whether an accused person who pleads
guilty should be
questioned.
‘
In
considering what, for the purposes of this case, lies at the heart of
a fair trial in the field of criminal justice, one should
bear in
mind that dignity, freedom and equality are the foundational values
of our Constitution.  An important aim of the
right to a fair
criminal trial is to ensure adequately that innocent people are not
wrongly convicted, because of the adverse effects
which a wrong
conviction has on the liberty, and dignity (and possibly other)
interests of the accused.’
[36]
The court in
Gumede
was dealing with seven cases in which an
accused person was convicted on a plea of guilty alone.  They
were all shoplifting
cases. One item was stolen in each case. The
values of the stolen items ranged between R25 and R270.  In each
of those cases
the prosecution did not request the court to question
the accused in terms of s 112(1)(b).  In each case the court’s

opinion that the sentence the offence would generate would be well
within the bounds set by s 112(1)(a) was absolutely solid.

Furthermore the elements of the crime of theft are easily understood
and each of the accused persons was legally represented.
This
case differs markedly from those considered in
Gumede
.
[37]
In terms of
s 90(2)
of the
National Land Transport Act, 2009
, on
conviction of the offence with which each of the accused in these
matters was charged, a term of imprisonment not exceeding
two (2)
years, or a fine not exceeding R100 000, may be imposed.
Given the purpose for which the carefully constructed
system of
operating licences was established under that Act, and the potential
consequences of breaches of the system which were
discussed by
defence counsel and the prosecutor alike only in the case of  Mr
Sibiya, the magistrate ought not to have entertained
an opinion as to
the potential sentences with the same level of certainty as she would
have done if these were minor shoplifting
cases.  The less
certain the opinion, the more that factor points to the exercise of a
judicial discretion in favour of questioning
the accused to ensure
that an innocent person is not going to be convicted.
[38]
The five cases that serve before this court are not sufficient on
their own to establish that there is a
general shortcoming in the
Empangeni Magistrates’ Court concerning the attention being
given to sentencing in matters such
as these. Nevertheless one may
observe that it may be so that the sentences meted out in these cases
are disproportionately low
when measured against the seriousness of
the offence, its prevalence and the penalties contemplated by the
statute.  If that
is so, the question would arise as to whether
in such cases an opinion that a conviction is going to generate a
sentence which
puts the case within
s 112(1)(a)
of the
Criminal
Procedure Act is
one formed according to law.  The pursuit of
efficiency must not be allowed to compromise justice.
[39]
The elements of the offence with which each of these accused were
charged are by no means simple.  Only
the most basic elements of
the charge are expressed in the charge sheet, leaving the rest to be
uncovered by reading the sections
to which reference is made.
The central feature of the charge sheet is that the accused is
charged with “operating”
a public transport service.
As pointed out earlier in this judgment a person who “operates”
the transport
service is the person who carries on the business
of operating the particular public transport service.  An
employed taxi
driver does not carry on the business of operating the
service.  Neither is it necessarily so that the owner of the
vehicle
carries on the business.  The person guilty under
s
50(1)
of the
National Land Transport Act in
each case is the person
carrying on the business in which the taxi was being used when it was
stopped on the road and found not
to have an operating licence
authorising what it was about.  A simple plea of guilty to the
charge sheet employed in each
of these five cases would not suffice,
and could not suffice to establish to the reasonable satisfaction of
the magistrate that
she had before her the person who was conducting
the business in which the taxi was being used at the time and at the
place stipulated
in the charge sheet.  In my view it was
necessary for this reason alone to question each accused, if on no
other subject,
then on his or her conduct in connection with the
operation of the taxi to be certain that the accused was the
operator, that is
to say the person conducting the business in which
the taxi was being employed.
[40]
For all the foregoing reasons under the present heading I conclude
that all five of these cases were not
conducted in accordance with
justice because the accused person was not questioned, and should
have been questioned, in order
to ensure that he or she did indeed
admit all the essential elements of the offence.
THE
FOLLOWING ORDER IS MADE.
The
proceedings, and the convictions and sentences imposed,  in each
of the following matters are reviewed and set aside, and
the matters
remitted to the Magistrates Court sitting at Empangeni.
(a)
The matter of Mbhekiseni
Siboniso Ntanzi decided on 3 January 2024, case number DCB 30/2024.
(b)
The matter of Joyce
Sbongile Oliphant decided on 3 January 2024, case number DCB 40/2024.
(c)
The matter of Mbhekiseni
Mbuyisani Buthelezi decided on 3 January 2024, case number DCB
35/2024.
(d)
The matter of Lizwi
Mesuli Mthethwa decided on 3 January 2024, case number DCB 36/2024.
(e)
The matter of Jabulani
Simphiwe Sibiya decided on 2 January 2024, case number DCB 31/2024.
OLSEN   J
I agree
BEDDERSON J