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FORM A

FILING SHEET FOR HIGH COURT - BISHO

JUDGMENT

PARTIES:

THE STATE

and

LANDELA JONAS

• Case Number: CA&R 21/08

• High Court: Bisho

• DATE HEARD: --

DATE DELIVERED: 8 September 2008

JUDGE(S): EBRAHIM J

LEGAL REPRESENTATIVES –

Appearances:

1. for the State: N/A

2. for the Accused: N/A

Instructing attorneys:

• for the State: N/A

• for the Accused: N/A

CASE INFORMATION -

1. Nature of proceedings : Special Review in terms of s 304(4) of the Criminal Procedure Act 51 of 1977

2. Topic: Accused conviction of crimen injuria and common assault; magistrate’s acquittal of accused on both counts at sentencing stage of trial proceedings irregular. Acquittals set aside and matter remitted to Magistrates Court.

Key Words: Key Words: Accused convicted; subsequent acquittal irregular

IN THE HIGH COURT OF SOUTH AFRICA

BISHO

CASE NO: CA & R 21/08

Magistrate’s Court Case No. E1415/07

In the matter between:

THE STATE

and

LANDELA JONAS Accused

REVIEW JUDGMENT

EBRAHIM J:

3. Senior Magistrate Tetyana of the Zwelitsha Magistrate’s Court has sent this matter on special review in terms of s 304(4) of the Criminal Procedure Act¹ (‘CPA’) as it appeared that a procedural irregularity had occurred in the trial which magistrate Nkume had conducted.

4. Section 304(4) provides for the review by the high Court of criminal proceedings in which a magistrate’s court imposed a sentence, which is not subject to review in the ordinary course in terms of s 302. In the present instance, as the trial magistrate did not impose any sentence on the accused the proceedings may not be reviewed in terms of s 304(4). Nevertheless, even if s 304(4) has no application, the fact is that a serious irregularity occurred in the trial, as will become evident hereinafter, and it is in the interests of justice that the proceedings be reviewed.² In my view, this Court may appropriately undertake such review in terms of s 304A.

5. The accused, who appeared before magistrate N G Nkume in the Magistrate’s Court, Zwelitsha, was charged with crimen injuria and common assault and was duly convicted on both counts. In respect of both offences the complainant was the mother of the accused who testified that there had been an altercation with the accused during the course whereof he directed insults at her, by referring to a specific part of her body. These insults she said had injured her dignity. The accused had also threatened to cut her leg with a pair of scissors but did not carry out this threat.

6. The accused elected not to testify or to present any other evidence in his defence and was convicted on both counts. It appears that the convictions are in order.

7. In addressing the court in mitigation of sentence the accused conveyed that he was married, the father of two children, and unemployed. He also disclosed that he was a psychiatric patient and had received treatment at a facility named Thembani Clinic.

8. The magistrate questioned the accused but, regrettably, failed to establish the nature of his psychiatric problem or the treatment he had received. The magistrate then asked another person (who it transpired was the mother of the accused) to confirm his averments:

‘COURT: …… . Ma’am, do you confirm what he’s – he’s saying?’

M JONAS: Yes, he used to run beserk.’

9. After enquiring into the personal circumstances of the accused, and the prosecutor had addressed the court on sentence, the magistrate stated:

‘SENTENCE

Yes sir, I understand that you are the (sic) first offender and that you have wasted the Court (sic) by pleading not guilty, although you did this to your mother as you asked for (sic) pardon. But now you put the Court in a dilemma because you divulged to this Court that you are mentally ill and your mother confirmed that. And you also informed the Court that you are eating (sic) treatment, that is tablets, but you defaulted. But I must warn you to eat (sic) your treatment regularly so that you cannot insult your mother and threaten her. Yes, the State is quite correct to say that he (sic) was not aware that you are mentally ill otherwise if that is the case you are not supposed to be charged with two offences.

So on those grounds I cannot do anything but to find you NOT GUILTY on both counts. Thank you.’

10. The magistrate replied to a query to explain on what basis in law she was authorised to reverse her finding that the accused was guilty, as follows:

‘The court convicted the accused on both counts. The ailment of the accused was disclosed by him at the mitigating (sic) stage. The court erroneously found accused not guilty and discharged [him] instead of suspending the sentence at the end instead of finding accused not guilty. Mr TETYANA informed me about the case but I honestly said that maybe it was the typing error since I never made this mistake in my life.

The mistake is regretted.

I therefore appeal to the Honourable Reviewing Judge to set aside the sentence.’

11. Once the magistrate had convicted the accused on both counts the subsequent pronouncement that he was not guilty was patently unlawful and had no legal effect. The only basis upon which the court that had convicted the accused could set aside the convictions was if it had ordered an enquiry to be conducted³ and had been furnished with a report from a panel⁴ confirming that the accused was ‘by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence’⁵ or, who, at the time he committed the offences, suffered ‘from a mental illness or mental defect which [made] him …… incapable (a) of appreciating the wrongfulness of his …… act or omission; or (b) of acting in accordance with an appreciation of the wrongfulness of his …… act or omission’.⁶

12. In the absence of such report the conviction of the accused on both counts could not be reversed. It follows that the decision of the magistrate to acquit the accused on both counts was irregular and falls to be set aside. Further the matter is to be remitted to the trial court for the trial to be finalised.

13. Two further issues require comment. The first is that it does not appear from the record that the prosecutor attempted to bring to the attention of the court that the decision to acquit the accused was irregular. If the failure to do so at the time was due to ignorance of the law or out of respect for the magistrate, it was still open to the state to seek appropriate legal recourse thereafter. The prosecutor had a duty to ensure that justice prevailed and if this necessitated that the decision of the magistrate be taken on review, this should have been done. The passive attitude of the prosecutor (and thereby the state) to what was clearly an irregularity, must be criticised.

14. The second concerns the future conduct of the trial. Without being prescriptive, it is evident that the uncertainty regarding the mental condition of the accused cannot be left unresolved. In what manner this should be resolved is a question for the magistrate to answer, mindful of the need to ensure that justice prevails.

15. In the result, there is an order in the following terms:

3. The decision of the magistrate that the accused is not guilty on both counts is set aside; and

4. The matter is remitted to the magistrate’s court for the trial to be finalised.

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Y EBRAHIM

JUDGE OF THE HIGH COURT 4 September 2008

I agree

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C T SANGONI

JUDGE OF THE HIGH COURT 4 September 2008

^Jonas.RVJ

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