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[2013] ZAWCHC 79
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S v Kumkani (A2404/2013) [2013] ZAWCHC 79; 2013 (2) SACR 360 (WCC) (21 May 2013)
REPORTABLE
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
High Court Ref No:
13125
Case No:
A2404/2013
Magistrates Serial No:
001/2013
In the matter between:
THE STATE
and
SIMPHIWE JUSTICE KUMKANI
___________________________________________________________________
REVIEW JUDGMENT: 21 MAY 2013
___________________________________________________________________
MANTAME, J
1. This matter came before me on 12 February 2012 in terms of
Section
304
of the
Criminal Procedure Act 51 of 1977
.
2. Upon perusing the record, I noted thatthe proceedings were
mechanically recorded. The accused was charged with contravening
the
provisions of
Section 65(2)(a)
read with
Section 1
,
65
(3),
65
(4),
65
(8),
65
(9),
69
(1),
73
and
89
of the
National Road Traffic Act 93 of
1996
, that is, driving with excessive amount of alcohol in blood.
Accused drove the vehicle whilst the concentration of alcohol in his
blood was not less the 0,05 gram per 100 millilitres, to wit, 0,28
gram per 100 millilitres.
3. On 3 January 2013, accused pleaded guilty to the charge and made a
statement in isiXhosa in terms of
Section 112(2)
of the
Criminal
Procedure Act 51 of 1977
. In the said statement, accused pleaded
guilty and admitted all the elements of the crime. The magistrate
then found him guilty
in terms of the plea and sentenced accused as
follows
:
“
R6000.00 fine or twelve (12) months imprisonment of which
R3000.00 or six (6) months is suspended for five (5) years on
condition
that the accused is not convicted of contravening
Section
65
Act 93 of 1996 committed during the period of suspension. In terms
of Section 35(3) suspension of drivers licence shall not come
into
effect. Deferred fine granted
”.
4. At page 11,at the end of the sentencing proceedings, the
magistrate asked a question: “
Do you understand?
”-
and would glean from the record that she was referring to the accused
payment of deferred fine as the prosecutor broke
down the monthly
payments into specific dates. At line 16 the magistrate said
something on record, but was captured as inaudible.
5. It therefore appeared that the accused was not advised of his
rights after sentencing. On the same day, I returned the record
back
to the magistrate with the following remarks:-
“
The record does not reflect that the accused person was
advised of his rights after sentencing. Magistrate is requested to
explain
if that explanation ever took place
”.
6. The response took quite some time to get to my chambers. On 20 May
2013, I received the magistrates’ response dated 16.04.2013
with a cover letter from the Judicial Head Strand – A Farber,
explaining the reasons for the delay on responding back. Mr.
Faber
explained that Ms Mpande, the magistrate, was a contractual appointee
whose contract ended on 11 January 2013 at Strand Magistrate
Court.
The magistrate has since been appointed at Cape Town Magistrate’s
Court as a magistrate, also on contractual basis.
That resulted in
their communication not being easy, hence the delay. In my view, such
explanation is reasonable in the circumstances.
7. I now turn to deal with the magistrates’ response that reads
as follows:-
“
Re-review
I refer to the query, dated 12 February 2013 by the Honourable
Judge.
I confirm that as appears in the records, no explanation was made
to the accused person, regarding his rights to review and/or appeal.
I accept that this was a mistake from my side. Should it be the
Honourable Judge’s opinion that this amounts to the
irregularity
of the proceedings, I will leave it in her hands to deal
with this matter accordingly.
I will therefore be amenable to whatever decision the court deems
appropriate in this case, i.e. to let the matter start denovo.
Yours truly,
Ms N Mpande
.”
I have taken due notice of the fact that though the magistrate had
intimated that if there are any irregularities in the proceedings,
she is leaving it in my hands to deal with the matter. In the next
line, the same magistrate advises that she is amenable to whatsoever
decision the court deems appropriate in this case i.e. to let the
matter start
de novo
.
8. Section 304 lays down the procedures to be followed in automatic
reviews. Even where sentences were competent and regularly
imposed, a
reviewing court may intervene wherein subsequent events, if no
interference occurs, would lead to a miscarriage of justice
–
See S v Z & 23 similar cases 2004(1) SA 400 E
.
9. In the present matter, the magistrate, on her own admission, has
failed to explain to the accused of his rights of review and
appeal
after sentencing. This error or mistake infringes upon accused rights
as entrenched in The Constitution of the Republic
of South Africa,
1996, Chapter 2 of the Bill of Rights, Section 35(o) which reads as
follows: “
Every accused person has a right to a fair trial,
which includes the right to appeal to, or review by a higher court
”.
In my view, if these rights are not adhered to that would be
tantamount to a travesty of justice.
10. In my view, accused has been deprived the constitutionally
entrenched right by the magistrate. This was an unrepresented accused
who knew nothing about the rule of law. It was therefore incumbent
upon the magistrate to inform the accused of his rights, so
as to
make up his mind both on conviction and sentence. It is my judgment
that the accused cannot be double penalised due to the
error
committed by the magistrate. It would be unfair for this court to
refer the matter to the magistrate’s court for the
proceedings
to start
de novo
due to no creation of the accused.
11. Consequently the proceedings in this case appear not to be in
accordance with justice. In the interest of justice, the conviction
and sentence is set aside and the accused is entitled to a refund of
his deferred fine already paid.
________________
MANTAME, J
I agree, and it is so ordered.
_______________
HENNEY, J
Judgment by : MANTAME, J
Nature of case : REVIEW JUDGMENT
High Court Reference No. : 13125
Magistrates Serial No.
: 001/2013
Judgment delivered on
: TUESDAY, 21 MAY 2013
5