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[1989] ZASCA 106
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S v Somciza (452/88) [1989] ZASCA 106; [1990] 1 All SA 335 (A) (19 September 1989)
Case no 452/88 /MC
ALSON MSABELI SOMCIZA
and
THE STATE
FRIEDMAN AJA.
1.
Case no 452/88 /MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
Between:
ALSON MSABELI SOMCIZA
Appellant
- and -
THE
STATE
Respondent
CORAM:
VAN HEERDEN, MILNE JJA et FRIEDMAN AJA.
HEARD:
7 SEPTEMBER 1989.
DELIVERED:
19 SEPTEMBER 1989.
JUDGMENT
FRIEDMAN AJA.
2/...
FRIEDMAN AJA:
The appellant and one Juju Tukela were
jointly charged in the Magistrate's Court at Wynberg in the Cape with dealing
in, alternatively
possession of dagga. Appellant was, in addition, charged with
attempted bribery, the allegation being that he offered the police
officials who
arrested him on the daggá charge, R3 000 not to proceed with the case
against him. Appellant pleaded not guilty
to both charges but Tukela pleaded
guilty to the charge against him. After Tukela had pleaded guilty his attorney
handed in, in terms
of section 112(2) of the Criminal Procedure Act, Act 51 of
1977 (the Act), a statement signed by Tukela in which the latter acknowledged
his guilt. In this statement Tukela explained that he had earlier on the day of
their arrest, borrowed the car in which the
3/...
3.
dagga was found from appellant and that when he returned the car to
appellant, there was a cardboard box containing 164 parcels of
dagga in the
boot. The statement proceeded as follows :
"This dagga was my property and I admit that I possessed it with the intention
of selling it. Accused no 1 (appellant) was not at
any stage aware of the fact
that there was dagga in the boot of the car."
Tukela
ended the statement with an admission that he knew it was unlawful to deal in
dagga and that he was in possession of the dagga
"with the intention to deal
therein".
The Magistrate delivered a short judgment in which he stated that he was
satisfied that Tukela had admitted all the allegations in
respect of the
charge
4/...
4.
of dealing in dagga and he found Tukela guilty on that
count. The prosecutor then asked the Court not to order
a separation of
trials. Appellant's counsel, on the
other hand, applied for a separation of
trials in terms
of section 157 of the Act. In support of his request
that
a separation of trials be not ordered, the
prosecutor informed the Court that
the evidence which
he would adduce would differ from the facts contained
in Tukela's statement. He did not, however, disclose
how it would differ.
After an adjournment to consider
the matter, the Magistrate delivered a
judgment in
which he stated that it was clear to him, the
prosecutor
having intimated as much, that Tukela's
statement did not correspond with the
version which the
State wished to advance. Purporting to act in terms of
section 113 of the Act, and relying on the decision in
5/...
5.
S v Balepile
, 1979(1) SA 702 (NC), the Magistrate altered Tukela's
plea to one of not guilty and dismissed the application for a separation of
trials. The trial then proceeded.
At the close of the State case appellant's
counsel renewed his application for a separation of trials. He informed the
Magistrate
that Tukela's counsel had indicated to him that he did not intend to
call Tukela as a witness and Tukela's counsel in fact confirmed
this to the
Court. Appellant's counsel explained to the Magistrate that since Tukela's
evidence, as appeared from his statement in
terms of section 112(2), was
essential to appellant's case and as Tukela could not, by reason of the
provisions of section(196)(l)(a)
of the Act, be compelled to give evidence as
long as he remained a co-accused, appellant
6/...
6.
would be prejudiced in his defence unless a separation of trials were
ordered. In a short judgment reading as follows, the Magistrate
dismissed the
application:
"Na oorweging van hierdie aansoek, is die Hof van mening dat dit op hierdie
stadium definitief nie in die belang van regspleging
sal wees indien die Hof die
verhore op hierdie stadium skei nie en word hierdie aansoek dus van die hand
gewys."
Both appellant and Tukela then closed their
respective cases without giving evidence and without calling any witnesses. They
were
both found guilty and sentenced.
Appellant noted an appeal to the Cape Provincial Division on the grounds,
firstly, that the Magistrate had erred in refusing the application
for a
7/...
7.
separation of trials and secondly, that the sentences were excessive. Tukela
noted an appeal only against his sentence. Some months
later, but before the
appeal was heard, appellant launched an application on notice of motion, citing
the Magistrate as first respondent
and the Attorney-general as second
respondent, in which he sought an order reviewing and setting aside his
conviction and sentence
on the following grounds:
"(i) A gross irregularity took place in the proceedings, which irregularity
vitiated such proceedings and/or
alternatively
(ii) First Respondent, in the manner in which he regulated the conduct of the
proceedings before him, in particular by the nature
of the decisions made by him
during such conduct of the proceedings, created
8/...
8.
in Applicant a belief that he
(First Respondent) was
biased
against Applicant."
Appellant also asked, in his notice of motion, for an order that the costs of
the application be paid by first respondent or, alternatively,
by first and
sêcond respondents jointly and severally.
In his affidavit in support
of the notice of motion appellant amplified the facts as set out above. He
pointed out that the Magistrate's
decision to alter Tukela's plea . to one of
not guilty, had come as a surprise to everyone at the trial, as no one had
requested
him to do so and no grounds entitling him to do so had existed. With
regard to the second application for a separation of trials,
appellant stated
that as appeared from Tukela's statement,
9/...
9.
the latter's evidence would probably have absolved him from blame on the
dagga charge and would have assisted him on the bribery charge
as it was
improbable that he would have attempted to bribe the police (to drop the dagga
charge against him) unless he was in fact
guilty of dealing in
dagga.
Appellant went on to state that because of what had occurred at the
trial in regard to the application for separation as well as information
he had
received to the effect that the Magistrate was "friendly with all members of the
South African Narcotics Bureau", and in particular
with detective sergeant H
Lazarus who was the investigating officer in the case and the main State
witness, he was not satisfied
that he had had a fair trial. He was, however, at
pains to point out that the feeling which
10/...
10.
he had as to the Magistrate's lack of impartiality was "purely subjective and
based only on (his) impressions". He explained that
he had not given evidence at
the trial as he had felt that because the Magistrate was not well disposed
towards him, he would have
rejected his evidence and that, in any event, without
Tukela's evidence to corroborate him, his evidence would not have been as
convincing
as it would otherwise have been.
Both respondents, i.e. the
Magistrate and the Attorney-general, gave notice of their intention to oppose
the application for review.
However, only the Magistrate filed an answering
affidavit. In his affidavit he stated that both accused had received an
exceptionally
fair trial ("h uiters regverdige en billike verhoor") and that all
his actions and decisions had been correct and in accordance with
the
11/...
11.
law. He also expressed the view that none of his decisions had prejudiced
either of the accused in the presentation of their respective
cases. He denied
that there was any substance in appellant's suggestion of bias on his
part.
Appellant's and Tukela's appeals and appellant's review application
were set down for simultaneous hearing in the Cape Provincial
Division before
BURGER and CONRADIE JJ. BURGER J, in delivering the judgment of the Court, held
that no valid grounds existed for
the Magistrate's decision to alter Tukela's
plea to one of not guilty in terms of section 113. He pointed out that at the
time when
the Magistrate altered Tukela' s plea to one of not guilty, he did not
know in what respect the State did not agree with Tukela's
statement and that it
had
12/...
12.
subsequently transpired that it was only that portion
of Tukela's statement in which he said that appellant
had no knowledge of
the presence of the dagga in the
vehicle, that the State did not accept.
BURGÊR J
also held that in order to enable appellant to call
Tukela
as a witness, the Magistrate should, at the
close of the State case, have
ordered a separation of
trials and that his refusal to do so had
prejudiced
appellant in his defence. Holding, however, that it
was
undesirable for the whole trial to take place de
novo
, BURGER J
ordered that appellant's conviction and
sentence be set aside and that the
matter be referred
back (to the trial Court) for further hearing, with
leave to appellant to re-open his case.
The Court
a quo
disposed of the application
for review as follows :
13/...
13.
"Daar was h gelyktydige aansoek vir hersiening van die verrigtinge voor die
landdros. Daar is geen objektiewe getuienis wat hersiening
sou regverdig nie.
Trouens die Applikant beweer:
'I wish to stress that I do not aver that my uneasy feeling (m b t beweerde
optrede van die verhoor-landdros) was in any way justified.
I merely state that
I did gain such a feeling.' Die aansoek vir hersiening word dus van die hand
gewys met koste."
Appellant's application for leave
to appeal against the judgment of the Cape Provincial Division was refused by
the Court
a quo
, but a petition to this Court was successful - hence the
present appeal.
The appeal to this Court was based on the following contentions:
14/...
14.
(1) That the Court
a quo
's order that
the
matter be remitted to the same Magistrate was incompetent.
(2)
That the review, and not
the appeal, should have succeeded since the basis upon which appellant's
conviction and sentence were set
aside, involved the irregular manner in which
the trial had been conducted.
(3)
That success
in the review entitled appellant to his costs.
The
Court
a quo
's finding that the Magistrate should, at the close of the
State case, have ordered a separation of trials and that the appellant
had
been
15/...
15.
prejudiced in his defence by the Magistrate's failure to do so, was, with
respect, correct. So was the Court
a quo
's decision to set aside the
appellant's conviction and sentence. The only guestion which remains to be
considered - apart from the
guestion of costs - is whether the Court
a
quo
should have ordered the matter to be remitted for further hearing before
the same Magistrate.
It was argued on behalf of appellant, that section 324
of the Act, read with section 313, precluded a remittal to the same Magistrate.
The question was also raised in argument, whether if the review, rather than the
appeal, had succeeded in the Court
a quo
, it would have been competent
for the Court to order that the matter be remitted to the Magistrate's Court for
further hearing, the
argument
16/...
16.
being that the Court
a quo
's powers on review were limited to setting
aside the conviction and sentence and did not extend to remitting a matter for
further
hearing. It is, however, unnecessary to decide either of these points.
The decision of the Court
a quo
to remit the matter for further hearing
before the same Magistrate cannot, for the reasons referred to below, be
supported. Once
a different Magistrate has to hear the matter, the trial would
have to start afresh. There would then be no reason to order its remittal
as the
Attorney-general has a discretion, in terms of section 324, to charge appellant
again (but not before the same Magistrate).
The Magistrate, in delivering judgment, made strong credibility findings in
respect of all the State witnesses. It is highly undesirable
that an accused
17/...
17.
who has been found guilty by a particular Magistrate and whose conviction and
sentence have been set aside, should be retried, or
that his trial should
continue, before the same Magistrate, where, as occurred in this case, that
Magistrate has already made findings
in which he has accepted the evidence
tendered by the prosecution. However dispassionately the Magistrate might feel
he would be
able, because of his judicial training, to weigh up the evidence
afresh once he has heard the appellant's evidence, the appellant
is,
understandably, unlikely to feel complacent about his prospects of receiving a
fair trial before that Magistrate. See
R v Nqubuka
1950(2) SA 363(T) at
365;
S v Siphambo
1963(1) SA 174(N) at 175.
The Court
a quo
does not appear to have considered the consequences of
referring the matter
18/...
18.
back to the same Magistrate for future hearing. BURGER J merely stated:
"Dit is onwenslik dat die hele verhoor de
novo
moet plaasvind en ek
meen dat die saak
terugverwys moet word "
Only in
his judgment dismissing appellant's application for leave to appeal did BURGER J
advert to the argument that it would be undesirable
for the same Magistrate to
hear the case in view of the credibility findings he had already made. BURGER J
dismissed this argument
on the ground that the credibility findings were made
without hearing the appellant's evidence and that after he had heard appellant's
evidence, the Magistrate would obviously have to weigh up all the evidence
afresh. That is undoubtedly so.
19/...
19.
A Magistrate is not disqualified from sitting in a case merely because he has
expressed an opinion in that case. A Magistrate is a
trained judicial officer
and he knows that he must decide every case that comes before him on the
evidence adduced in that case.
See
R v T
1953(2) SA 479(A) at 483. In T's
case it was held that a Magistrate who had convicted a black female of
contravening the Immorality
Act with a white male, need not recuse himself from
subsequently hearing the case against the white male. T's case is, of course,
distinguishable from the present case. In T's case the Court was considering
whether the Magistrate should have recused himself from
trying a person other
than the one he had previously found guilty. In the present case the Magistrate
had already found the appellant
guilty and had made - admittedly on the evidence
then
20/...
20.
before him -favourable credibility findings in respect
of the State witnesses whose evidence would be ranged
against that of
appellant should the trial be re-opened
and continue before the same
Magistrate.
In these circumstances the appellant is unlikely to be as
sanguine about his prospects of receiving a fair trial as is necessary if
justice is to be seen to be done.
For these reasons the Court
a quo
should, in my view, merely have set aside the conviction and sentence, thereby
leaving it to the Attorney-general to decide whether
to charge appellant again
or not.
That leaves the question of costs. Appellant's counsel argued that
the Court
a quo
erred in dismissing the application for review with
costs, and that it should have upheld the review and ordered
21/...
21.
the Magistrate, or alternatively the State, to pay the costs.
In his
affidavit in support of the notice of motion in the review proceedings,
appellant stated that the Magistrate, as first respondent,
was cited in his
"capacity as additional Magistrate, Wynberg". The Attorney-general, as second
respondent, was likewise cited in
his official capacity as such. There is no
basis on which costs could have been awarded against the Attorney-general.
Although the
Attorney-general formally gave notice that he was opposing the
application, he did not participate further in the proceedings. As
far as the
Magistrate is concerned, appellant's counsel contended that he should have been
ordered to pay the costs since he had
acted
mala fide.
Although it was
not stated in the affidavit in support
22/...
22.
of the review application that the Magistrate had been actuated by malice,
appellant's counsel submitted that from the record, taken
together with the
absence of any satisfactory explanation by the Magistrate, the inference of
mala fides
could be drawn. Counsel pointed out that when the Magistrate
dismissed the application for a separation of trials at the close of
the State
case, the only "reason" he advanced was that a separation at that stage would
not be in the interests of justice, which
- so it was argued - was not a valid
reason. Moreover, in his answering affidavit the Magistrate likewise gave no
explanation for
his decision. Counsel argued, further, that there had been no
justification for the Magistrate's initial refusal to order a separation
of
trials or for his alteration of Tukela's plea.
23/...
23.
It is true that the Magistrate's initial decision to alter appellant's
co-accused's plea from guilty to not guilty, was not warranted.
Balepile'
s case,
supra
, on which the Magistrate purported to rely,
is clearly distinguishable. In that case the differences between the accused's
answers
to questioning in terms of sec 112(2) of the Act and the State version,
raised a doubt as to whether the accused was in fact guilty
of the offence to
which he had pleaded guilty. That was not the case with Tukela. However, having
changed Tukela's plea to not guilty,
the Magistrate was no longer faced with the
position where one accused pleaded guilty and the other not guilty, which is the
normal
situation in which a separation of trials is ordered. See
R v Zonele
and Others
1959(3) SA 319 (A) at 325. The fact that one
24/...
24.
accused pleads guilty and another not guilty is, of course, not the only
ground upon which a separation of trials could be justified.
The Court has a
discretion, in terms of section 157 of the Act, to order a separation of trials.
In exercising its discretion under
that section, the trial Court has to weigh up
the prejudice likely to be caused to the applicant by a refusal to separate,
against
the prejudice likely to be suffered by the other accused or the State if
the trials are separated and then to decide whether or not,
in the interests of
justice, a separation of trials should be ordered. See
S v Ntuli and
Others
1978(2) SA 69(A) at 73 F-G. In the present case the Magistrate
appears not to have applied this test; indeed in the absence of reasons
for his
decision refusing a separation of trials, it is not possible to determine
25/...
25.
what his thought processes were. Having said that and having said that the
Magistrate clearly exercised his discretion incorrectly
when he refused to order
the trials to be separated, I do not, however, consider that it can be said that
he acted
mala fide
. Misguided or even "wrong-headed" he may have been,
but that does not justify characterising his conduct as
mala fide
. See
Regional Magistrate Du Preez v Walker
, 1976(4) SA 849(A) at 855 G-H.
There was accordingly no basis for ordering the Magistrate to pay the costs
de bonis propriis
. Nor was there any justification for saddling the State
with costs merely because the Magistrate, in his official capacity as such,
gave
an incorrect decision. See
Walker
's case,
supra
at 856 A. In view,
however, of the Magistrate's failure to give a reasoned explanation for his
rejection of the second
26/...
26.
application for a separation of trials, the correct order would in my view
have been to make no order for costs on the application
for review, even if the
conviction and sentence had been set aside pursuant to the review rather than
the appeal.
For these reasons the appeal is upheld and the order made by the Court
a
guo
is altered to read :
"Die skuldigbevinding en vonnis van Beskuldigde no 1 word tersyde gestel. Geen
bevel word gemaak ten opsigte van die koste van die
hersiening."
G. FRIEDMAN
AJA
VAN HEERDEN JA)
MILNE JA) Concur.