Republic of South Africa

REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

				 High Court Ref No		:  0404229
				Case No			:  A 912/04		
 				Magistrate’s Serial No	:  190/04  

In the matter of

THE  STATE

versus

G  SOLOMONS

JUDGMENT IN SPECIAL REVIEW : 23  JUNE  2005

MOOSA J:

Introduction:

1.	This matter was placed before me for special review in terms of Section 304(4) of the Criminal Procedure Act, No 51 of 1977, (“the Act”) on the ground that the Magistrate had failed to apply the provisions of Section 105A(9) of the Act.  The accused stood trial on five counts of fraud in the Magistrate’s Court, Goodwood. The State and Defence concluded a plea-bargaining agreement  (“agreement”) in terms of which it was agreed that the accused would tender a plea of guilty to all the charges (“plea agreement”) and that a particular sentencing regime (“sentencing agreement”) would apply.  The agreement was presented to the Magistrate for scrutiny.  He indicated that, in his opinion, the sentence agreed upon between the parties was not just. He then proceeded to impose a different sentence.  

2.	The sentence imposed by the Magistrate was a fine of R2 000 or 18 months imprisonment which was suspended for a period of five years on condition that the accused is not convicted of fraud or theft or attempted theft during the period of suspension.  It appears that all the charges were taken as one for the purpose of sentence.  The sentencing regime which was agreed upon between the State and the Defence was one year imprisonment, the whole of which was suspended for a period of three years subject to the following conditions:
(a)	That the accused is not found guilty of fraud, theft or attempted fraud or theft, committed during the period of suspension; 
(b)	that the accused pays the complainant the amount of R12 223,12 at the rate of R300,00 per month from 30 October 2004;
(c)	the payments be made to the Clerk of the Court, Magistrate’s Court, Goodwood.

The Record:
3.	Before entering the review landscape, the court is duty bound to pass comment on the record of the proceedings.  The record, which was taken down in long-hand, is incomplete.  Prior to the matter being submitted for special review, the record was supplemented by an affidavit of the defence attorney, a note of the prosecutor and a note of the presiding magistrate.  Unfortunately these documents are not very helpful either, as they do not set out precisely in what sequence the proceedings unfolded.  They appear to be sparse, crisp and disjointed.  The court is of the opinion that no useful purpose would have been served by referring the matter back to the presiding officer to reconstruct the record because the parties do not appear to be ad idem as to what had transpired.

4.	It has repeatedly been stressed by our courts that the Magistrate’s Courts are courts of record and the proceedings before them are to be properly recorded as provided for in terms of Sections 4(1) and 5(1) of the Magistrate’s Court Act, 32 of 1944 and Section 76(3)(a) of the Act.  The importance thereof cannot be overemphasized as in criminal matters the mere production of the record (Section 76(3)(b) of the  Act) or a certified copy thereof (Section 235(1) of the Act) is prima facie proof of its contents.  In S v K 1974(3) SA 857 (C) at 858H the learned judge re-iterated the matter as follows:
		“Die plig van ŉ  landdros in ŉ  strafsaak wanneer hy die rekord in eie hand afneem is om volledig, noukeurig en duidelik te notuleer alles wat voor hom plaasvind wat enigsins relevant is tot die verrigtinge voor hom of die meriete van die saak, is al by herhaling deur ons howe beklemtoon.  Sien byvoorbeeld R v Kumalo 1947(4) SA 156 (N) TE 157;  R v Sikumba 1955(3) SA 125 (OK) te 128.” 

5.	 The plea-bargaining process is governed by extra-ordinary procedure and where the record is taken down in long-hand, it is essential that it be recorded fully, carefully and properly.  Each step taken and each decision made in such process must be clearly recorded.  The object is to avoid any dispute, whether on appeal, review or otherwise, as to what transpired in the proceedings.  With all its limitations, the court will review these proceedings on the basis of the record submitted as supplemented by the affidavit and the notes.

Plea Bargaining:
6.	Section 105A(9)(a) of the Act provides that if the court is of the opinion that the sentence agreement is unjust, it must inform the prosecutor and the accused of the sentence which it considers just.  In that event, they can decide either to abide by the plea agreement or they can withdraw from the agreement (Section 105A(9)(b)).  If the prosecutor and the accused decide to abide by the plea agreement, the court must convict the accused of the offence to which he pleaded guilty and impose a sentence which it considers just (Section 105A(9)(c)).  If they withdraw from the agreement the trial starts de novo before another presiding officer unless the accused agrees to be tried before the same presiding officer (Section 105A(9)(d)).

7.	The plea-bargaining regime is a fundamental departure from the adversarial system of our criminal law.  On the one hand, the State agrees to compound the offence and on the other hand, the accused waives several of his/her Constitutional rights afforded to him/her in a trial.  The legislature deemed it necessary to make the provisions of Section 105A peremptory and strict compliance therewith is accordingly a prerequisite.  The court ought to ensure that the formal and substantial requirements of the plea-bargaining regime are strictly complied with.

8.	From the record of the proceedings in this matter, there appear to be three caveats. The one is the admissions made by the accused.  They amount essentially to a repetition of the allegations in the charge sheet.  They do not contain an admission of the facts upon which those allegations are based as required by sub-section 105A(6)(a)(ii).  Similar provisions are contained in Section 112(2) of the Criminal Procedure Act.  In this regard  Hugo, J  with whom  Thirion, J  concurred in S v B 1991(1) SACR 405 (N) at 406b clarified the matter as follows:
		“Section 112(2) provides that where an accused or his legal adviser hands in a written statement by the accused in which the accused sets out the facts which he admits and upon which he has pleaded guilty, the court may, instead of questioning the accused, convict and sentence him.  It is clear that this Section required not only a series of admissions, but the facts upon which those admissions are based.” 
            In my view the same principle would apply in the case of the application of sub-section 109A(6)(a)(ii) in the plea-bargaining process.

9.	The second is whether the plea bargaining agreement was entered into freely and voluntarily in his sound and sober senses and without having been unduly influenced as required by sub-section 109A(6)(a((iii).  The record reflects that the accused confirmed the contents of the agreement as correct.  The agreement states that the accused pleads guilty freely and was not threatened, told or influenced to plead guilty.  The admission is confined to his plea and does not extend to the rest of the agreement as required by the sub-section in question.  In my view the omission amounts to non-compliance with the peremptory provisions of the sub-section.

10.	The third is that the record of the proceedings does not disclose what sentence the presiding officer regarded as “just”  before convicting the accused and imposing the sentence.  According to the defence attorney, the accused was convicted in terms of his plea of guilty and the plea explanation as set out in the plea agreement.  From his affidavit, it appears that the presiding officer, after having read the agreement, was of the opinion that the sentence agreed upon was not an appropriate one.  He then proceeded to impose the sentence which he regarded as just.  The record of the proceedings seems to confirm this course of events. This also seems to be the tenor of the prosecutor’s note and the presiding officers subsequent written input.

11.	In the plea-bargaining process, a number of parties are involved.  They are, in addition to the immediate parties, namely, the prosecutor and the accused, also the complainant and the investigating officer who are consulted in the process.  Where the presiding officer is of the opinion that the sentencing agreement is not just, before convicting the accused, he is obliged to inform the immediate parties to such agreement what sentence he regards as just.  The purpose of making such information known is to enable the parties to make an informed choice whether to abide by the plea-bargaining process or to resile therefrom.  The failure on the part of the presiding officer to do so, in my view, constituted non-compliance with the peremptory provisions of sub-section 105A(9)(a).

12.	Finally, it behoves me to raise another issue.  When the matter was first placed before me for review, I requested the Director of Public Prosecutions to comment on a number of issues that I raised in connection with the special review.  I am thankful to Adv Galloway and the Director for a very comprehensive and helpful response.  I referred the response to the presiding officer for his comments, if any.  I am also grateful for his input.  He was of the opinion that the essential complaint of the State was of a substantive and not procedural nature in that the prosecutor was unhappy with the sentence imposed by him.  In the circumstances he submitted that the only avenue open to the State was to appeal and not submit the matter for special review.  A short answer to that submission is that special review is justified by virtue of the irregularities to which I have alluded earlier.  In any event, the powers of the court to review proceedings of the lower court, in terms of Section 304, are quite wide.  The consideration is whether the proceedings are in accordance with justice or not.  For reasons mentioned earlier, I am of the view that the proceedings were not in accordance with justice.

13.	In the premises, the conviction and sentence are set aside and the matter is remitted to the Magistrate’s Court for hearing de novo before another presiding officer.

									……………………………….
									              E  MOOSA

DLODLO, J:  I agree.						………………………………..
									          D V  DLODLO