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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: A06/2019

In the matter between:

NJEZULA: XOLANI                                                                            APPELLANT

AND

THE STATE                                                                                        RESPONDENT

 

JUDGMENT

 

TWALA J

[1] This is an appeal against both the conviction and sentence premised under the provisions of s309 (1)(a) of the Criminal Procedure Act, 51 of 1977 (CPA) as amended which confers an automatic right to appeal to the High Court to a person who has been convicted and sentenced to life imprisonment by a regional court under s51 of the Criminal Law Amendment Act, 105 of 1997 (CLAA).

[2] Central to this two pronged appeal is, firstly whether the proceedings in the Court a quo were in accordance with justice. Put differently, whether the rights of the appellant as provided for in the Constitution were not violated as a result that he did not receive a fair trial.  Secondly, whether the sentence imposed under the circumstances is shockingly inappropriate or that the Court a quo misdirected itself when imposing the sentence of life imprisonment.

[3] It is not in dispute that the appellant was charged and convicted of rape and was sentenced to life imprisonment under the provisions of s51 of Act 105 of 1997 by a Regional Court Magistrate siting in Boksburg. The appellant was legally represented and tendered a plea of guilty by submitting a written statement in terms of s112 of the CPA.

[4] It is submitted by counsel for the appellant that the proceedings in the Court a quo were not in accordance with justice due the failure of the magistrate to institute an enquiry after the appellant said that he does not know nothing about it after he said he understood the first count he was charged with. Further, so goes the argument, the second count of rape was put to the appellant but he was not asked to plead, instead his legal representative took over and read the s112 statement into the record. This is irregular and vitiates the proceedings.

[5] It is contended further by counsel for the appellant that the Court a quo misdirected itself in imposing a sentence of life imprisonment when the appellant pleaded guilty. The Court a quo, so it is contended, failed to take into account the personal circumstances of the appellant and instead over-emphasised the interest of the community above that of the appellant – hence it did not find that substantial and compelling circumstances exit justifying it to deviate from imposing a minimum sentence as prescribed by s51 of the CLAA.

[6] Counsel for the respondent contended that the appellant was at all times legally represented and the legal representative who was acting on his behalf pleaded for him when he read the s112 statement into the record. The legal representative further confirmed that the plea was in accordance with her instructions. The legal representative pleaded on behalf of the appellant and tendered the s112 statement on behalf of the appellant in respect of the second count.  Further, it contended, the appellant confirmed the contents of the s112 statement read into the record by his legal representative.

[7] It is further contended by counsel for the respondent that there was no misdirection on the part of the Court a quo when imposing the sentence of life imprisonment. The appellant was convicted of a crime for which the legislature has found it necessary to promulgate legislation to prescribed the minimum sentence to imposed when a person is found guilty thereof. Nothing turns from the fact that the appellant pleaded guilty and that he spent 6 months in prison awaiting trial.

[8] I propose to deal with the first issue raised by counsel for the appellant which is whether the appellant received a fair trial because it may be dispositive of the matter.

[9] It is trite law that in terms of the bill of rights as enshrined in the Constitution, criminal trials are to be conducted with notions of fairness and justice. Thus, criminal courts hearing criminal trials or appeals should give content to the notions of basic fairness and justice which underpin a fair trial.

[10] Section 35(3) of the Constitution of the Republic of South Africa, Act 108 of 1996 provides as follows:

“35(3) Every accused person has a right to a fair trial, which includes the right –

a) To be informed of the charge with sufficient detail to answer it;

b) ……………………….

h) to be presumed innocent, to remain silent, and not to testify during the proceedings;

j) not to be compelled to give self-incriminating evidence;”

[11] Section 105 of the Criminal Procedure Act, 51 of 1977 provides as follows:

“105 Accused to plead to charge

The charge shall be put to the accused by the prosecutor before the trial of the accused is commenced, and the accused shall, subject to the provisions of sections 77, 85 and 105A, be required by the court forthwith to plead thereto in accordance with section 106.”

[12] I am unable to disagree with counsel for the appellant that after the first count was put to the appellant by the prosecutor the appellant did say that he understands the charge against him but that he knew nothing about it. However, this he said before he was asked to plead by the Magistrate. When he was called upon to plead to the first count, appellant readily pleaded guilty. I agree that it is on record that the appellant confirmed that he understands the charge against him but stated further that he knows nothing about it before he was called upon to plead. It is this part that created a problem which was not investigated by the Magistrate at the time.

[13] Although s35 (3) of the Constitution does not direct the Court to handle the issues around the plea of a person, it is my respectful view that it creates a duty on the presiding officer to guard against the rights of the person appearing before him being violated. Section 35 (3) imposes a duty on the presiding officer to ascertain that a person appearing before him receives a fair trial which includes a right to inform him of the charge he is facing with sufficient detail to enable him to answer to the charge. In my view, the magistrate in the Court a quo should have immediately enquired from the appellant what he meant when he said he knows nothing about it.

[14] The appellant was charged with a serious offence which is punishable by law with a minimum sentence of life imprisonment. It was not sufficient for the magistrate to only explain the provisions of s51 of the CLAA to the appellant he heard him saying he does not know anything about it. I hold the view that the magistrate ought to have given the appellant an opportunity to explain what he meant by saying he knows nothing about it before proceeding to asking him how does he plead to the charge. I therefore find, in the circumstances of this case, that the appellant’s rights to a fair trial were violated for he was not given an opportunity to explain why he was saying he knows nothing about it before he was called upon to plead. The magistrate should not have been detracted from his duty by the prosecution’s submission that the appellant indicated that he intends pleading guilty to the charge. The fact that the appellant was facing a charge which carries a minimum sentence of life imprisonment should have been an indicator to the magistrate to be more careful and to ascertain that every step taken in the proceedings is fully understood by the appellant. I accept that the appellant was represented by legal representative at the time, but that did not relieve the magistrate of his duty to ascertain that the appellant received a fair trial. The magistrate should have been alarmed by the response of the appellant when he said he knows nothing about it whereas the prosecutor had informed him that the appellant intended to plead guilty.

[15] I am unable to agree with counsel for the respondent that the legal representative of the appellant pleaded for him when the second count was put to him by the prosecutor. The legal representative only read into the record the s112 statement by the appellant. The Court a quo failed to ask the appellant as required by s105 of the CPA. Section 105 is clear and simple in that at the commencement of the hearing, the prosecutor shall put the charge to the accused and the Court shall require the accused to forthwith plead to the charge. The section does not say the accused or his legal representative shall plead to the charge.

[16] As the record shows with regard to the second count, the magistrate only asked the appellant if he understands the charge against him and proceeded to call upon the appellant’s legal representative to read the s112 statement into the record. He however, explained to the appellant that should the matter go to trial, the s112 statement will be held as admissions by the appellant. The magistrate never called upon the appellant to plead - thus in my view, the rights of the appellant to a fair trial were violated in this regard.

[17] In S v Magwaza 2016 (1) SACR 53 (SCA) the Supreme Court of Appeal stated the following when it was dealing with the rights as enshrined in the constitution:

“It is clear that the rights in question exist from the inception of the criminal process, that is, from arrest, until its culmination (up to and during the trial itself). In the case of the appellant’s co-accused, accused 1, the state produced what was described as a standard constitutional-rights warning form, to which was appended his signature as proof that he had indeed been warned. Not so in respect of the appellant. Neither Mbatha nor Govender was a model of clarity as to exactly what was conveyed to the appellant. But, even were it to be accepted that the cumulative effect of their evidence is that there was a warning of sorts, it appears to have been woefully inadequate. For, whilst there is some reference in the evidence of Govender and Mbatha to the rights to silence and legal representation, there is no indication that the appellant was warned of the consequence of not remaining silent (the logical corollary of the right to silence) or of his entitlement to the services of a legal representative at state expense. There was some suggestion in argument from the bar in this court that such deficiencies as there were came to be cured by the rather detailed warning by Capt Eva. But what is readily apparent from the document introduced into evidence is that, by the time the appellant had been warned by Capt Eva, he had already confessed to the robbery. It is important to appreciate that a constitutional right is not to be regarded as satisfied simply by some incantation which a detainee may not understand. The purpose of making a suspect aware of his rights is so that he may make a decision whether to exercise them, and plainly he cannot do that if he does not understand what those rights are (R v Cullen (1993)1 LRC 610 (NZCA) at 613 G-I). It must therefore follow that the failure to properly inform a detainee of his constitutional rights renders them illusory. What must govern is the substance of what the suspect can reasonably be supposed to have understood, rather than the formalism of the precise words use (R v Evans (1991) 4 CRR (4^TH) PARAS 144, 160 AND 162)

[18] I do not agree with counsel for the respondent that, although there are deficiencies in the manner in which the appellant’s plea to the charges was handled by the magistrate, this was cured by the legal representative when he confirmed that the plea was in accordance with her instructions and by the appellant himself when he confirmed the contents of the s112 statement when questioned by the magistrate. My understanding of the authority quoted supra is that Constitutional rights cannot be regarded as satisfied simply by some incantation which the person involved may not understand. It is immaterial that the legal representative submitted in mitigation of sentence that it was the intention of the appellant to plead guilty from the moment she received instructions.

[19] I am appalled by the hastily manner in which the magistrate handled this matter. I am of a considered view that a gross injustice has been visited against the appellant for not allowing him an opportunity to explain why he said he knew nothing about it when the first charge was put to him and for failing to allow him to plead to the second charge in terms of s105 of the CPA. It is my respectful view that the magistrate neglected its duty imposed by s35 of the Constitution to ensure that the appellant received a fair trial merely because the prosecutor informed him that the appellant intended to plead guilty. It follows therefore that the appeal against both conviction and sentence should succeed.

[20] However, much as the irregularities and deficiencies which occurred in this case could not be cured by the fact that the appellant had a legal representative and the subsequent s112 statement that was tendered, I am of the considered view that it is in the interest of justice that this case be remitted to the magistrate court for retrial before a different magistrate.

[21] In the circumstances, I make the following order:

a) The appeal against both the conviction and sentence is upheld;

b) The order of the magistrate court is replaced with the following:

1. The conviction and sentence is set aside;

2. The case is remitted back to the magistrate court for retrial before another magistrate.

 

 

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TWALA M L

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

I agree

 

___________________

KEKANE P

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

 

 

Date of hearing: 30^th May 2019

Date of Judgment: 28^th June 2019

For the Appellant: Adv. M Mzamane

Instructed by: Johannesburg Justice Centre   

Tel: 011 870 1480

For the Respondents: Adv.  V H Mongwane

Instructed by: National Director of Public Prosecutions

Tel: 011 220 4228

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