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[2019] ZASCA 74
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Mokoena v S (200/2018) [2019] ZASCA 74; 2019 (2) SACR 355 (SCA) (30 May 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 200/2018
In the matter between:
MOEKETSI
MOKOENA APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Mokoena
v The State
(200/2018)
[2019] ZASCA 74
(30 May 2019)
Coram:
Maya P and Tshiqi,
Saldulker and Swain JJA and Gorven AJA
Heard:
14 May 2019
Delivered:
30 May 2019
Summary:
Criminal Procedure
– regional court magistrate
mero
motu
closing
defence case in terms of s 342A(3)
(d)
of the Criminal
Procedure Act 51 of 1977 (the Act) - notice in terms of s 342A(4)
(a)
not given by the State – evidence irregularly excluded - appeal
court incorrectly remitting matter back to same magistrate
to
continue hearing – conviction and sentence set aside – s
324
(c)
applied.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Weiner and Mailula JJ
sitting as court of appeal):
1 The appeal is upheld.
2 The order of the high
court is set aside and replaced with the following order:
‘
a.
The appeal succeeds and the conviction and sentence of the appellant
are set aside.
b. It is ordered in terms
of
s 324
(c)
of the
Criminal Procedure Act 51 of 1977
, that
proceedings in respect of the same offence for which the appellant
was convicted may again be instituted on the same charge,
suitably
amended if necessary, as if the appellant had not been previously
arraigned, tried and convicted: Provided that the magistrate
before
whom the original trial took place shall not take part in the
proceedings.’
JUDGMENT
Saldulker
JA (Maya P, Tshiqi and Swain JJA and Gorven AJA concurring):
[1] This appeal, with the
special leave of this court, is directed against the order of the
Gauteng Local Division, Johannesburg
(Weiner and Mailula JJ).
They
upheld an appeal by the appellant, Mr Moeketsi Mokoena, against his
conviction for the theft of R1 million, for which he was
sentenced to
15 years’ imprisonment before the Johannesburg Regional Court
(Magistrate A Petersen). The high court found
that the magistrate had
incorrectly applied the provisions of
s 342A(3)
(d)
read with s 342A(4)
(a)
of the Criminal
Procedure Act 51 of 1977 (the Act) when ruling that the proceedings
were to continue and be disposed of as if the
case for the appellant
had been closed. The high court however then ordered that the matter
be remitted to the regional court for
the trial to continue before
the same magistrate.
[2]
There are two issues on appeal. First, whether the magistrate was
entitled
mero motu
to invoke the provisions of s 342A(3)
(d)
read with s 342A (4)
(a)
of the Act, in the
absence of the requisite notice by the State given beforehand, that
it intended to apply for an order that the
proceedings be continued
and disposed of as if the case for the defence had been closed.
Second, whether the high court was correct
to remit the matter for
the re-opening of the defence case, to the same magistrate (who had
already convicted and sentenced the
appellant), and to allow the
leading of further evidence where the same magistrate had already
made strong credibility findings
against the appellant.
[3]
The appeal arises against the
following factual backdrop.
The appellant
was charged with the theft of R1 million which was the property of
SBV Cash Services and its employers. At the time
of the theft the
appellant was in the employ of SBV Cash Services. The trial against
the appellant commenced in September 2013
in the regional court.
During March 2014, the State informed the appellant that it was
not relying on a witness who was to
testify in respect of certain
video footage and made the witness available to the appellant. After
the close of the State’s
case, the appellant testified in his
defence, and the matter was thereafter postponed to June 2014 for the
purpose of securing
the attendance of this witness along with the
necessary equipment to show the video footage.
[4]
However, by the adjourned date no steps had been taken to secure the
attendance of the witness by subpoena. The magistrate informed
the
appellant that this would be a final postponement for securing the
attendance of the witness. The matter was postponed until
August
2014. On the adjourned date and despite a subpoena having been issued
for his attendance, the witness did not attend court.
The appellant
requested another postponement but declined the offer by the
magistrate that a warrant of arrest be issued to secure
the
attendance of the witness. The State objected to a further
postponement of the matter. The magistrate, in refusing the
postponement,
stated that the appellant had been made abundantly
aware of the fact that the matter had been finally postponed and that
the provisions
of s 342A of the Act came into effect, as the
appellant had ‘been given due notice of the aspect of the
matter been final
today’. The magistrate then concluded that
the completion of the proceedings was being delayed unreasonably and
because the
appellant sought a further postponement and did not wish
to proceed with the matter at that stage, an order as contemplated in
subsection (3)
(d)
of the
provisions of s 342A
[1]
of the
Act, should issue that the ‘
proceedings
be continued and disposed of . . . as if the case for the
defence has been closed’.
After
hearing argument, the regional court convicted and sentenced the
appellant.
[5]
In its judgment, the high court, pointed out that it was common cause
that neither the defence nor the State had applied for
an order in
terms of the above section, and that neither of the parties had given
notice of their intention to seek such an order.
However it rejected
the argument by the appellant, that the refusal by the magistrate to
grant a postponement and the grant of
an order in terms of s
342A(3)
(d)
of the Act,
in the absence of the requisite notice, vitiated the proceedings.
This was despite the high court finding that the
provisions of s 342A
must be strictly interpreted in view of the serious consequences of
such an order and its effect upon the
right to a fair trial as
envisaged in s 35(3) of the Constitution.
[6]
In this respect the high court erred because in terms of s 342A(4)
(a)
no order shall be issued in terms of
342A(3)
(d)
unless
exceptional circumstances exist and all other attempts to speed up
the process have failed, and the defence or the State
as the case may
be, has given notice beforehand that it intends to apply for such an
order as provided for in s 342A(4)
(a)
of
the Act. The requirements of s 342A(4)
(a)
are
clearly peremptory. Thus, the defect in these proceedings was that
the regional court magistrate acted
mero motu
in terms of s 342A(4)
(a)
in
the absence of any notice given beforehand by the State that it
intended to apply for such an order. Because the application
of the
provisions of s 342A(4)
(a)
may have far reaching consequences, it is essential that proper
notice as required by the section be given to the other party so
as
to enable such party to prepare in advance.
[7]
Although the magistrate stated when the matter was postponed for
further hearing in June 2014, that it was a final postponement
for
the defence to secure its remaining witness to testify on the video
footage, the magistrate did not refer to s 342A, nor did
the State
give notice that it intended to rely on this section. It was only
when the regional court magistrate made the ruling
that the
provisions of s 342A were referred to for the first time. The
magistrate purported to deal with the requirement of notice
by
stating that the defence had accordingly been made aware of the fact
that the matter was finally postponed, and that the provisions
of the
section therefore came into effect. This quite obviously did not
constitute the requisite notice in terms of the section.
[8]
In this context it must be stressed that there is a significant
difference, between the situation, as in the present case, where
the
magistrate warns a party that this will be a final adjournment of the
matter and the situation where that party is given notice
in terms of
the section. In the latter instance, the magistrate will be asked to
make an order that the case of that party is closed.
In the former
situation the affected party still possesses an election whether to
close their case or not, and may decide not to
close his or her case
and lead additional evidence not related to the issue that caused the
delay, whereas in the latter situation,
that election is removed and
placed in the hands of the magistrate. It should be made clear that s
342A(4)
(a)
requires
the State or a party to give notice. A magistrate may not do so.
[9]
The grant of the order in term of s 342A(3)
(d)
was clearly a
technical irregularity. Once an irregularity has been committed, the
provisions of s 309(3) of the Act find
application. Section
309(3) provides:
‘
.
. . [N]o conviction or sentence shall be reversed or altered by
reason of any irregularity . . . in the record or proceedings,
unless it appears . . . that a failure of justice has in fact
resulted from such irregularity . . . .’
The
question thus arises whether the irregularity in question resulted in
a failure of justice. The answer is clear. In
S
v Naidoo
1962 (4) SA 348
(A) and
S
v Moodie
1962 (1) SA 587
(A), a technical
irregularity was described as one which justified the setting aside
of a conviction by the court of appeal where
it precluded valid
consideration of the merits. In this case material evidence relating
to a video footage was excluded. A failure
of justice resulted.
[10]
I turn to deal with the second issue on appeal, namely
whether
the high court was correct to remit the matter for the re-opening of
the defence case, to the same magistrate. The high
court agreed with
the submission by the State that the same magistrate would hear any
further evidence and apply his mind to the
facts and the evidence in
arriving at his decision.
In addition, the
high court’s remittal order was problematic, as the high court
did not set aside the conviction and sentence,
and in the absence of
such an order, the magistrate would have been unable to continue with
the trial. In doing so the high court
failed to take into account
that the magistrate had made serious credibility findings against the
appellant and had rejected his
version on the evidence.
[11]
Where an irregularity which gives rise to a failure of justice
occurs, the provisions of s 324
(c)
of the Act apply. In terms of this section where a conviction and
sentence are set aside by a court of appeal on the grounds that
there
has been a technical irregularity or defect in the procedure, then
proceedings in respect of the same offence may be instituted
as if
the accused had not been previously arraigned, tried and convicted:
Provided that no Judge or assessor before whom the original
trial
took place shall take part in such proceedings. The need for the
proviso is clear. When a presiding officer has already concluded
that
the appellant is guilty of an offence and furnished his reasons for
doing so, he or she cannot hear any further evidence in
the matter.
Importantly, according to
Director
of Public Prosecutions, Transvaal v Mtshweni
[2006]
ZASCA 165
;
[2007] 1 All SA 531
(SCA)
this
provision does not conflict with s 35(3) of the Constitution, as it
does not result in double jeopardy because of the vitiating
nature of
the irregularity. The appeal must accordingly succeed and the
conviction and sentence of the appellant be set aside in
terms of s
324
(c)
of the Act.
[12]
In the result the following order is made:
1 The appeal is upheld.
2 The order of the high
court is set aside and replaced with the following order:
a. The appeal succeeds
and the conviction and sentence of the appellant are set aside.
b. It is ordered in terms
of
s 324
(c)
of the
Criminal Procedure Act 51 of 1977
, that
proceedings in respect of the same offence for which the appellant
was convicted may again be instituted on the same charge,
suitably
amended if necessary, as if the appellant had not been previously
arraigned, tried and convicted: Provided that the magistrate
before
whom the original trial took place shall not take part in the
proceedings.’
_________________
H K Saldulker
Judge
of Appeal
ÁPPEARANCES
FOR
APPELLANT: N J Du Plessis
Instructed
by NJ Du Plessis and Associates
East
London
c/o
Christo Dippenaar Attorneys
Bloemfontein
FOR
RESPONDENT: Adv D E Zinn
Director
of Public Prosecutions
Johannesburg
[1]
Section
342A
of the
Criminal Procedure Act 51 of 1977
reads:
‘
Unreasonable
delays in trials
(1)
A court before which criminal proceedings are pending shall
investigate any delay in the completion of proceedings which appears
to the court to be unreasonable and which could cause substantial
prejudice to the prosecution, the accused or his or her legal
adviser, the State or a witness.
(2)
In considering the question whether any delay is unreasonable, the
court shall consider the following factors:
(a)
The duration of the delay;
(b)
the reasons advanced for the delay;
(c)
whether any person can be blamed for the delay;
(d)
the effect of the delay on the personal circumstances of the accused
and witnesses;
(e)
the seriousness, extent or complexity of the charge or charges;
(f)
actual or potential prejudice caused to the State or the defence by
the delay, including a weakening of the quality of evidence,
the
possible death or disappearance or non-availability of witnesses,
the loss of evidence, problems regarding the gathering
of evidence
and considerations of cost;
(g)
the effect of the delay on the administration of justice;
(h)
the adverse effect on the
interests of the public or the victims in the event of the
prosecution being stopped or discontinued;
(i)
any other factor which in
the opinion of the court ought to be taken into account.
(3)
If the court finds that the completion of the proceedings is being
delayed unreasonably, the court may issue any such order
as it deems
fit in order to eliminate the delay and any prejudice arising from
it or to prevent further delay or prejudice, including
an order-
(a)
refusing further
postponement of the proceedings;
.
. .
(d)
where the accused has
pleaded to the charge and the State or the defence, as the case may
be, is unable to proceed with the case
or refuses to do so, that the
proceedings be continued and disposed of as if the case for the
prosecution or the defence, as
the case may be, has been closed;
.
. .
(4)
(a)
An order
contemplated in subsection (3)
(a)
, where the accused has
pleaded
to the charge, and an
order contemplated in subsection (3)
(d)
, shall not be issued
unless exceptional
circumstances exist and all other attempts to speed up the process
have failed and the
defence or the State, as the case may be, has given notice
beforehand that it intends to apply for such an
order.’