S v Buxeka (R82/2021) [2021] ZAFSHC 255 (28 October 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Review No. R82/2021

Magistrate’s Court No.02/2021

In the matter between:

THE

STATE

and

THABANG

NKADIMENG BUXEKA

CORAM: REINDERS, J et, MATSHAYA, AJ

JUDGMENT BY: MATSHAYA, AJ

DELIVERED ON: 28 OCTOBER 2021

[1] This matter serves before us as a special review in terms of section 304(4) of the Criminal Procedure Act (the CPA)[1]. The accused was charged with Housebreaking with intent to steal and theft. He was convicted and sentenced to five months’ imprisonment and declared unfit to possess a firearm.

[2] The case was referred for review by Senior Magistrate Mnguni through a covering minute dated 6 October 2021. It appears from the said minute that he came across the matter during his routine judiciary quality assurance. He is of the view that the proceedings were not in accordance with justice because of the following reasons:

2.1 That the accused’s fair trial rights from plea up to sentencing stage were not explained to him since he was not legally represented;

2.2 That during the section 112(1)(b)[2] questioning the magistrate posed leading questions to the accused which ‘steered him to admit guilt’; and

2.3 That the accused’s right to appeal was not properly explained to him even though the record reflects that it was.

[3] Before the record could be sent to the High Court for review, Mr Nguni duly solicited the presiding magistrate’s comments/input pertaining to his reservations cited above regarding the regularity of the proceedings but the magistrate did not submit any comments.

[4] The issue that we are called upon to determine is whether the proceedings were in accordance with justice.

[5] It is trite that the accused has a right to a fair trial which includes the right to legal representation[3] at state expense if he cannot afford his own and to be informed of this right promptly.[4] The following appears on the record of proceedings of 9 March 2020:

“Proceedings long hand-load shedding. Accused rights to legal representation and legal aid explained. Accused elects own defence.”

[6] From the above extract it is not clear whether the accused understood this right or not before making an election to conduct his own defence. It is the duty of the court to ensure that the accused fully understands this right so as to make an informed choice whether to seek legal representation or not. The imperative of this was previously explained by Samela AJ (as he then was) in S v Cornelius & Another[5] when he stated the following:

“…the exercise of the right to legal representation is of critical importance in any trial, as it is the only source through which the other rights can be effectively exercised.”

[7] The right to legal representation is one of the fundamental rights encompassing a fair trial up to the extent that the drafters of the constitution deemed it prudent to include the following phrase in section 35(3)(g), “… and to be informed of this right promptly.” This clearly demonstrates that a court must not just pay lip service when explaining this very important right. It is the duty of the court to ensure that the accused properly understands this and it is expected to encourage him to consider legal representation. It may even be prudent to explain the seriousness of the offence and the possible sentence in the event of conviction so that he can make a well informed choice.

[8] Our courts have over the years consistently emphasized the duty of the court in this regard. In Cornelius[6], Samela AJ went further in para 14 and stated the following:

“Furthermore it is not unusual to come across records indicating that, in spite of the accused having been advised of his rights to legal representation through the Legal Aid Board, they would have chosen to act in person even where they faced serious charges. Although it ultimately depends on the individual decision of the accused whether or not to have legal representation, in some cases such decision is based on misconception or misunderstanding of the system relating to free legal representation. It is therefore incumbent upon magistrates to go an 'extra mile' in cases where the accused declines legal representation, particularly in cases of serious charges. They must find out what motivated the decision to act in person in the light of the complexities in court procedures.”

[8] Clearly, in this case the magistrate failed to ensure that the accused’s right to legal representation is explained promptly to him and that he understood so as to make an informed choice. That was a failure of justice.

[9] The next aspect to consider is the manner in which the section 112(1)(b)[7] was conducted. From the transcribed record, the following appears:

Court: “Were you on 7 March 2020 at Amazing Grace Creche in the district of…?”

Accused: “Yes, I was there”.

Court: “Did you then and there enter this building of this said crèche?”

Accused: “Yes.”

Court: “Did you there and then steal two times Kellogg’s, one kilogram of Thokoman Peanut Butter and one kilogram of jam?”

Court: “This items, the property of Amazing Grace Creche?”

[10] It is clear that the court put leading questions to the accused. In Mkhize[8] Bloom J concluded that the accused should be invited to explain what happened. Leading questions should as far as possible be avoided[9]. The purpose of questioning the accused is to elicit facts from him the basis upon which he is pleading guilty. Ideally, he must be given space to explain what happened so that the factual basis of his guilty plea can be established. It is improper for the magistrate to guide him in that exercise and lead him with readily prepared answers for him to admit his guilt as it happened in the present case as exhibited from the above extract. Therefore, the manner in which the questioning was conducted by way of leading questions in this case, vitiate the proceedings.

[11] Although Senior Magistrate Mnguni did not raise concerns regarding the proceedings post- conviction except appeal rights, I deem it prudent to examine same to determine if they were in accordance with justice. After the accused admitted his previous convictions, it appears from the record that he went ahead and placed his mitigating factors on record.

[12] Section 274 of the CPA[10] confers to an accused person the right to place before the court mitigating circumstances. It is the duty of the court to explain this right thoroughly to an undefended accused and to assist him during the process of mitigation. It is not difficult to find wisdom behind this reasoning because there are various ways in which this right may be exercised, for example by addressing the court form the bar, testifying under oath and the consequences thereof, calling witnesses to testify, etcetera. In this case the magistrate neither explained this right to the accused nor did he assist him during mitigation and this was a failure of justice.

[13] The next aspect is the accused’s right to appeal. At the end of the case, the record reveals the following:

“Your sentence is one of five months imprisonment and it’s right to appeal”.

In terms of section 309 of the CPA[11] every accused person has a right to appeal against conviction, sentence or order of a lower court by the High Court. This right is also recognized by the Constitution of the Republic[12] as one of the rights that forms the cornerstone of a fair trial.[13] There is a duty on the presiding officer to inform the unrepresented accused of this right and that he understands it. In casu, it is plain that the presiding officer did not explain the accused’s right to appeal and this was a failure of justice.

[14] The last aspect that warrants to be revisited even though Mr Mnguni did not mention it is the order of the magistrate declaring the accused unfit to possess a firearm purportedly under the auspices of section 103(1) of the Firearms Control Act (FCA).[14] Section 103(1) of the FCA states that “Unless the court determines otherwise, a person becomes unfit to possess a firearm if convicted of…”. Even though the accused is automatically deemed unfit to possess a firearm when the matter falls in one of the categories mentioned in subsection (i), the court still has to invite the accused to put forward evidence or submissions from the bar which may persuade the court not to endorse his automatic unfitness to possess a firearm.

The court must embark into an enquiry in that regard. Therefore, it remains the responsibility of the court to properly explain to an unrepresented accused of the nature and effect of the provisions of section 103(1) of the FCA. This did not happen in this case and this should vitiate the said order.

[15] A criminal trial is not a game where the magistrate plays the role of an umpire. He has to ensure the fairness of the whole proceedings. The need for judicial officers to assist unrepresented accused throughout the trial cannot be over-emphasized. It is not difficult to find wisdom behind that reasoning because for example, in the present matter the accused probably served five months in prison in violation of his constitutional right to freedom of movement[15] as a result of irregular proceedings. It is regrettable that Mr Mnguni picked up this matter when the accused had already finished serving his sentence.

[16] For the reasons outlined above, we are satisfied that the proceedings were not in accordance with justice and have to be set aside. This is a typical example of how a criminal trial should not be conducted. Perhaps this signals the need for training of magistrates in this regard as this is not an isolated case. It is for this reason that this judgment should be forwarded to the secretary of the Magistrates Commission for the attention of magistrates in general.

[17]

ORDER

1. The conviction and sentence are set aside.

2. The order in terms of section 103(1) of the Firearms Control Act is set aside.

3. The Registrar of this court is ordered to forward a copy of this judgment to the Magistrates Commission to be circulated to all the magistrates for training purposes.

M.M.

MATSHAYA AJ

I concur

C.

REINDERS J

[1] Act 51 of 1977.

[2] CPA, supra.

[3] Section 73(2A)(e) of the CPA provides that: “Every accused shall -at his or her first appearance in court, be informed of his or her right to be represented at his or her own expense by a legal adviser of his or her own choice and if he or she cannot afford legal representation, that he or she may apply for legal aid and of the institutions which he or she may approach for legal assistance.”

[4] Section 35(3)(f) & (g) of the Constitution of the Republic of South Africa, 1996.

[5] 2008 (1) SACR 96 (C) at para 13. See also S v Owies & Another 2009 (2) SACR 107 (C).

[6] Supra. See also S v Nkondo 200 (1) SACR 358(w) at 360 (b)-(e) and S v Manale 2000 (2) SACR 666 (NC).

[7] S 112(1)(b) CPA supra, states that “Where an accused at a summary trial in any court pleads guilty to the offence charged, … and the prosecutor accepts that plea - the presiding … magistrate shall, …, question the accused with reference to the alleged facts of the case in order to ascertain whether he or she admits the allegations in the charge to which he or she has pleaded guilty, ..”.

[8] 1981 (3) SA 585 (N) 586H.

[9] See also S v Mohlabi 1981 (2) PH H110 (O), s V Mbebe 2004 (2) SACR 537 (Ck) at [15], S v Masuge 1978 (2) PH H159 (T).

[10] Supra.

[11] CPA, supra.

[12] Of 1996.

[13] Section 35(3)(o) of the Constitution.

[14] Act No. 60 of 2000.

[15] Section 21(1) of the Constitution which guarantees the right to freedom of movement.