S v Molefe, S v Mothudi, S v Matunda; S v Motona (90/08, B115/08, A207/08, B147/08, P300/08) [2009] ZANWHC 6 (19 March 2009)

IN THE

HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA

PROVINCIAL DIVISION

CA NO: 90/08

In the matter between:

1. THE STATE and NTOTOLO MOLEFE (Case no: B115/08)

2. THE STATE and ONTIRETSE MOTHUDI (Case no: A207/08)

3. THE STATE and MARTIN MATUNDA (Case no: B147/08)

4. THE STATE and JOSEPH SOLLY MOTONA (Case no:P300/08)

REVIEW

JUDGMENT

KGOELE AJ:

A.

INTRODUCTION

1. The first matter of S v Ntotolo Molefe came before me on review on the 24 July 2008. The accused was charged with possession of 514 grams of dagga. He pleaded guilty to the charge. The presiding officer convicted the accused as charged after asking only two questions in an attempt to conduct an inquiry in terms of sec.112 (1) (b) of the Criminal Procedure Act.

2. A query was send to the presiding officer wherein I raised certain issues regarding the presiding officer’s questioning in terms of sec. 112(1)(b) of the Criminal Procedure Act of 1977. The said query was couched as follows:

“1. Two questions were asked by the presiding officer when invoking sec 112(1)(b) of the Criminal Procedure Act of 1977 to establish whether the accused admit all the allegations of the offence in the charge sheet.

From page 3 of the record of proceedings the second question was couched as follows:

“Had you wrongfully and unlawfully in possession of undesirable dependence producing substance, to wit it is 514 grams of dagga”

1.1 Does this type of question not amount to a leading question?

1.2 Is this line of questioning sufficient enough to satisfy the presiding officer that the accused correctly admitted all the elements of the offence he was charged with?

1.3 Does the accused’s response of simply “Yes” to the language as used by the presiding officer “wrongfully and unlawfully” satisfy the presiding officer that the accused understood the import and nature of these two legal terminologies?

2. On page 4 of the record the accused indicated to the court during his address on sentence that he did not intend to possess this dagga. Is this not an indication of the fact that the questioning by the presiding officer fell short of the standard required and further that accused did perhaps not understand the questions as put by the presiding officer?

3. See in this regard the case of Mkhize V The State and Another 1981 (3) SA 585 (N).”

B. BACKGROUND

3. Whilst awaiting a reply from the presiding officer, the following three matters came before me on review:

S v Ontiretse Mothudi (Case no: A207/08)

In this matter the accused was charged with assault with intent to do grievous bodily harm. The accused pleaded guilty and after asking only two questions to the accused in terms of section 112(1)(b), the presiding officer was satisfied that accused admitted all the elements of the offence and found the accused guilty as charged.

S v Martin Matunda (Case no: B147/08) and

S v Joseph Solly Motona (Case no:P300/08)

In both these matters the accused were charged with driving under the influence of liquor or drugs – alternatively driving whilst the amount in their blood exceeded the legal limit. They both pleaded guilty to the charge. The presiding officer again convicted the accused in these matters of the main count after asking two questions.

4. I became very much concerned about the manner in which the presiding officer conducted the section 112(1)(b) inquiries in all these matters. I also noticed that the same presiding officer whom a query was send in the first case of S v Ntotolo Molefe presided over these matters.

5. Queries were sent to the presiding officer in respect of these other three matters. I decided to wait for a reply in respect of all these matter as I considered it convenient to deal with all the four matters in one single judgment as they fall to be decided on the same arguments and basis as of the first one.

6. The response to the query on the first matter was received from the presiding officer on the 9th October 2008 and was as follows:

“The abovementioned accused was charged with the offence of contravening section 4(b) read with section 4(i)-(vi), 13 (d) and 17(d) and further read with section 1, 18 and 20 Act 140 of 1992.

The words “wrongfully and unlawfully” emanate from the charge sheet and I was of the view that they must go together. I was satisfied that the accused understand that in simple terms the phrase “wrongfully and unlawfully” meant that his conduct was unlawful.

Regarding page 4 as referred by the Honourable Judge, I regret that I overlooked the fact that the accused was perhaps putting the elements of intent in dispute.

The record of proceedings is returned herewith.”

7. An exposition of the queries send to the presiding officer in all these other three matters and the replies thereto are as follows:

7.1. S v Ontiretse Mothudi (Case no: A207/08)

Charge: Assault with intent to do grievous bodily harm

QUERY:

“The duties of a judicial officer in terms of section 112 (1) (b) of Act 1977 are twofold:-

to question the accused with the reference to the alledged facts of the case in order to ascertain whether he admits the allegations in the charge; and to satisfy himself that the accused “is guilty of the offence which he has pleaded guilty.” See Heugh; Dingele; Mlindeshweni, Mtyalelwa 1998 (1) SACR 83 (E).

1.1 Is the line of questioning adopted by the presiding officer sufficient enough to elicit information on which the presiding officer can form a basis and be satisfied that accused is guilty of the offence to which he has pleaded?

[2] Does the answers of the accused of simply “YES” and “CORRECT”to the legal jargon used by the presiding officer to wit “wrongfully and unlawfully”; “have intention to cause grievous bodily harm” satisfy the presiding officer that accused understood the nature and importance of these legal terminologies?”

REPLY:

“The above named accused was charged with intent to do grievous bodily harm.

The accused was convicted as charged and sentenced to twelve months imprisonment which is wholly suspended for a period of five years on condition that the accused is not convicted of an offence of assault with intent to cause grievous bodily harm committed during the period of suspension.

The sentence is subject to review in the ordinary cause. As far as the Honourable Reviewing Judge’s Query is concerned, the words “wrongfully and unlawfully have intentions to cause grievous bodily harm “are legal jargons. These jargons are depicted from the charge sheet used by the court officials.

Since there is a court interpreter to convey the same in the language spoken by the accused I am satisfied that the accused understood the nature and the importance of the charge.”

S v Martin Matunda (Case no: B147/08)

Charge: Driving under the influence of liquor or drugs

(a) to question the accused with reference to the alledged facts of the case in order to ascertain whether he admits the allegations in the charge;

and

(b) to satisfy himself that the accused “is guilty of the offence to which he has pleaded guilty.” See heugh; Dingele; Mlindeshweni; Mtyalelwa 1998 (1) SACR 83 (E).

1.1 Is the line of questioning adopted by the presiding officer sufficient enough to elicit information on which the presiding officer can form a basis and be satisfied that accused is guilty of the offence to which he has pleaded?

[2] The second question asked by the presiding officer relates specifically to the alternative Count, driving with an amount of alcohol in blood which exceeds the legal limit.

2.1 On what basis did the presiding officer found the accused guilty of the Main Court “Driving under the influence of alcohol or Drugs having a narcotic effect”?

[3] The accused informed the Court that he had not seen and discussed the content of the certificate from the Laboratory before. The prosecutor confirmed this. This certificate contains information which is outside accused personal knowledge.

3.1 On what basis did the presiding officer accept the certificate as an exhibit?”

“The above named accused was charged with the offence of Driving under the influence of liquor.

The accused was convicted of driving under the influence of liquor being the main count. He was sentenced to a fine of R1400-00 or 8(eight) months imprisonment.

The sentence is subject to review in the ordinary cause. As far as the Honourable Reviewing Judge’s Query is concerned and questions raised thereof:-

At that stage, (i.e. before the learned judge had referred me to the case of Mkhize v The State and another 1981 (3) SA 585 (N) I was satisfied that the questioning was sufficient enough. Both main count and alternative charge were put to accused, during the questioning of the court on the main count, I am convinced with the elements of the main count that indeed the accused should be convicted with the main count. The contents of the certificate was read out and interpreted correctly to him and without any obligation, he indicated no objection if handed over as an exhibit.”

S v Joseph Solly Motona (Case no: P300/08)

Charge: Driving under the influence of liquor/drugs

(b) to satisfy himself that the accused “is guilty of the offence to which he has pleaded guilty.” See Heugh; Dingele; Mlindeshweni; Mtyalelwa 1998 (1) SACR 83 (E).

[2] The second question asked by the presiding officer relates to the Main Count, Driving under the influence of alcohol. No questions whatsoever were put to the accused to establish whether his senses were affected or not by the alcohol he had consumed.

2.1 Taking into consideration the fact that accused was not legally represented and is a layman, did the presiding officer became satisfied that accused did infact understand the nature and import of the legal terminology as used in the question put to him to wit: “Were you doing this whilst under the influence of intoxicating liquor or drug having a narcotic effect?

The above mentioned accused was charged with the offence of driving under the influence of liquor/drugs.

The accused was convicted of the same sentenced to 12 months imprisonment which is wholly suspended for a period of 5 years on condition that the accused is not convicted of driving under the influence of liquor or drugs committed during the period of suspension.

The sentence is subject to review in the ordinary course. As far as the Honourable Reviewing Judge’s query is concerned and questions rose thereof:-

1. At the stage (i.e. before the learned judge has referred me to the case of Mkhize v The State and another 1981 (3) SA 585 (N) I was satisfied that the questioning was sufficient enough. I however had considered to conduct my line of questioning in accordance with the judge’s order henceforth.

2. In relation to the legal terminology used, the court is satisfied that the accused understood the importance thereof since there is a court interpreter who conveyed the same in the language of the accused person.

2.1 The accused confirmed that he was driving the said vehicle whist under the influence of intoxicating liquor or a drug having a narcotic effect. The court considered this to have affected his senses.”

8. For the sake of completeness of this judgment, I am of the view that the manner in which the inquiries were conducted should be quoted verbatim as reflected on the records of proceedings in all these matters:

8.1 S v Ntotolo Molefe (Case no: B115/08)

Charge: Possession of undesirable dependence producing substance

COURT: Thank you, just a second. Having pleaded guilty sir, in terms of Section 112 the court will question you to establish whether you admit to all the allegations in the charge sheet and if the court is satisfied of your guilt you will be convicted without any evidence tendered. If the court is not satisfied that you admit all the allegations in the charge sheet a plea of not guilty would be noted and the public prosecutor will be ordered to proceed with prosecution. Finally nobody is obliging you to incriminate yourself sir. Thank you.

Accused: I understand your worship.

Court: Do you confirm that on the very same day, that is 1 May 2008 you were at or near Letsoroma Section in Moswe Village in the district of Lehurutshe?

Accused: Correct your worship.

Court: and you wrongfully and unlawfully in possession of undesirable dependence producing substance, to wit it is 514 grams of dagga?

Accused: Yes your worship, I did.

Court: The court is satisfied sir with the elements of this offence. You are therefore found guilty.

8.2 State v Ontiretse Mothudi (Case no: 207/08)

Charge: Assault With Intent To Do Grievous Bodily Harm

“ACCUSED: I plead guilty to the charge.

COURT: Having pleaded guilty in terms of Section 112 of the Criminal Procedure Act Sir the Court will put questions to you to ascertain whether you agree with the elements of this offence and if perhaps you do not agree with these elements a plea of not guilty will be endorsed and the public prosecutor will be ordered to call witnesses to come and testify against you. You are further warned that you are not compelled to incriminate yourself. Do you understand this

explanation?

ACCUSED: I understand, Your Worship.

COURT: Thank you. Do you confirm that on 8 July 2008 you were at or near Jimokana(?) Village which is in the district of Lehurutshe?

ACCUSED: Correct.

COURT: And you did unlawfully and intentionally assault Kagiso Molefe Kgotla(?) by stabbing him with a knife?

ACCUSED: I did.

COURT: And you had intent of causing him grievous bodily harm?

ACCUSED: Yes

JUDGMENT

The court is satisfied that the accused has confirmed all the elements of the assault with intent to do grievous bodily harm. The accused is therefore found guilty as charged.”

8.3. S v Martin Matunda (Case no: B147/08)

Charge: Count 1 Driving under the influence of liquor or drugs.

First Alternative: Excessive amount of alcohol in blood

“Do you understand the charge preferred against you?

ACCUSED: I understand.

COURT: And if so, what is it that you plead to this charge?

ACCUSED: I plead guilty on the charge.

COURT: That is the count one?

ACCUSED: Correct in the main count.

COURT: The main count thank you.

Having pleaded guilty, in terms of the Provisions of Section 112, the Court will question you to establish whether you admit the allegations in the charge sheet and if the Court is satisfied of your guilt, the Court will convict you without any evidence being led against you.

If the Court is not satisfied that you admit to all the allegations in the charge sheet, a plea of not guilty will then be noted and then the Public Prosecutor will then be given opportunity to call witnesses to testify against you.

You are further warned that you are not compelled to incriminate yourself.

COURT: Thank you.

Would you confirm that on the 19th day of April 2005, I beg your pardon, 2007, at Hopane main road, a public road in the District of Lehurutshe, accused, you did

unlawfully drive a vehicle to with Grey Golf 2, with registration number BFY 539 NW?

COURT: And with the engine of which was running whilst the concentration of alcohol in any specimen of blood taken from any part of your body was not less than 0.05 gram per 100 milliliter to with 0.26 gram per 100 milliliters or in the case of the professional driver referred to in Section 32, not less than 0.2. Yes, that is the 0.02 gram per 100 milliliters to with 0.26 gram per 100 milliliters.

ACCUSED: I do Your Worship.

The Court is satisfied that the accused has confirmed all the elements of this offence and you are therefore found guilty of the main count.

PROSECUTOR: As it pleases the Court, Your Worship State is going to request that the Certificate in terms of Section 101 of the Criminal Procedure Act be handed in as Exhibit A.

COURT: This is a certificate in terms of Section 212 of the Criminal Procedure Act as amended. You have seen this, have you?

Accused: No.

COURT: It is a 212 statement. It is a Laboratory Reference from Johannesburg. You have not discussed this with the accused Ms Peega?

PROSECUTOR: No, Your Worship.

COURT: It comes from the laboratories.

Do you have an objection if it is handed over?

ACCUSED: I have got no problem.

COURT: Thank you. The same is Exhibit A.

8.3 S v Joseph Solly Motona (Case no: P300/08)

First Alternative: Excessive amount of alcohol in blood

COURT: Do you understand the charges preferred against you?

ACCUSED: I do Your Worship; I understand the charges, the main and the alternative counts Your Worship.

The main or the alternative count have been interpreted to you in you language and you have indicated that you understand both charges.

What do you plead, and starting with the main count Sir?

ACCUSED: I plead guilty to the main count Your Worship.

Having pleaded guilty to the main count, the Court will question you to establish whether you admit all the allegations in the charge sheet and if the Court is satisfied of your guilty, the Court will convict you without any evidence being led against you.

If the Court is not satisfied, then the Court will endorse Section 113 of the Criminal Procedure Act and then the Public Prosecutor will be ordered to call witnesses who will testify against you, as a plea of not guilty will be endorsed.

You are further warned that you are not to incriminate yourself in this regard.

Do you understand?

ACCUSED: I understand.

Do you confirm that upon or about the 16th of September 2007, you were in supping village on a public road in the district of Lehurutshe?

ACCUSED: I do Your Worship.

COURT: And that you were driving a vehicle, to with Nissan Uno with Registration Number FHZ 215 NW?

COURT: And that you were doing this whilst under the influence of intoxicating liquor or a drug having a narcotic effect?

ACCUSED: Correct.

COURT: The Court is satisfied that the accused admits to all the elements and you are therefore found guilty sir.

Madam Prosecutor

PROSECUTOR: Your Worship, the State will request to submit a Certificate in terms of Section 212 of the Criminal Procedure Act and has been conversed with the accused.

COURT: You have conversed the same to the accused?

PROSECUTOR: Yes Your Worship.

COURT: This is a Certificate that the Prosecutor would like to exhibit. It is a Laboratory Reference JHBDDO7154/07.

It comes from the forensic Chemistry Laboratory. It shows the content of the alcohol that was in your body when you were examined.

Do you have any objection?

ACCUSED: No objection.

COURT: Thank you. You do not have an objection, thank you very much.

The same is admitted as Exhibit A.

C. SECTION 112 (1)(b) ENQUIRY

9. The relevant provision of sec 112(1)(b) reads as follows:

“(b) the presiding judge, regional magistrate or magistrate shall, if he or she is of the opinion that the offence merits punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, or if requested thereto by the prosecutor, 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, and may, if satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, convict the accused on his or her plea of guilty of that offence and impose any competent sentence.”

10. It is quite clear from the provisions quoted above that, the inquiry remains “a factual one”.

11. As seen from numerous decisions of the various High Court divisions, it is generally accepted that the duty of a judicial officer in terms of this section are twofold:

to “question the accused with reference to the alledged facts of the case in order to ascertain whether he admits the allegations in the charge; and

to satisfy himself that the accused “ is guilty of the offence of which he has pleaded guilty. (Mkhize v The State and another 1981 (3) SA 585 (N); Heugh, Dingele, Mlindeshweni, Mtyalelwa 1998 (1) SACR 83 (E); S v Gwenya 1995 (2) SACR 522 (E). It has also been generally accepted that the best way of establishing these facts is to allow the accused to explain fully and in his own words what transpired during the commission of the offence.

D. ADMITTANCE OF FACTS WITHIN ACCUSED PERSONAL KNOWLEDGE.

12. The first two matters, that of S v Ntotolo Molefe and S v Ontiretse Mothudi, deals mainly with the situation where the accused was admitting to facts within his or her personal knowledge. This is so because in S v Ntotolo Molefe the accused was charged with the offence of possession of dagga and in S v Ontiretse Mothudi the accused was charged with Assault with the intent to do grievous bodily harm.

13. Looking at the inquiries made in respect of these two matters, it is quite obvious that:

the presiding officer’s questions consists of merely repeating, in a form of leading questions, allegations contained in the charge-sheet;

the accused were lay persons. They were not legally represented. The presiding officer used too much of a legal jargon in both these matter to such an extend that there is a strong likelihood that the accused might not have understood the nature and import of the words “wrongfully” and “unlawfully”; etc.

The presiding officer did not question the accused with reference to the alledged facts of the case, this creates a serious doubt as to whether questions asked were sufficient enough to enable the presiding officer to form an informed opinion that the accused correctly admitted to all the allegations in the charge sheet and further that they are guilty of the offence they pleaded to.

14. I am of the view that the questioning by the presiding officer in these two matters fell short of the standard required in the application of section 112(1)(b) of Act 51 of 1977. Infact, the use of an interpreter in court as a reason given by the presiding officer for using legal jargons, does not relief the presiding officer to adhere to the duty and the standard as required by the provision of this Act. I therefore come to the conclusion that the presiding officer has failed to apply the section properly to enable this court to confirm the convictions of the trial court.

E. ADMITTANCE

OF FACTS OUTSIDE ACCUSED PERSONAL KNOWLEDGE

15. The last two cases dealt with in this judgment deals with the situation where the accused were admitting to facts that were outside their personal knowledge. In both these matters S v Martin Matunda and S v Joseph Motona, the accused were each charged with the offence of driving under the influence of liquor or drugs in the main count and in the

alternative, driving whilst the excessive amount of alcohol in the blood is more than the legal limit.

16. Special care is necessary where an accused admits facts falling outside his or her personal knowledge. This is so because, like in the present matters referred to in paragraph 15 above, the analysis of the blood sample taken from them can only be ascertained by a laboratory. It is obvious that the accused is usually unaware of how the blood was analysed. It will therefore be prudent to the court to ask question to the accused on how he or she came to have this knowledge or why he or she accepts this as a fact. All that is needed is to ask an accused on what basis he or she is making such admissions and invariably such accused will have seen the reports or certificates in the State’s possession.

17. The following remarks by Thirion J in the case of S v Naidoo 1985 (2) SA 32 (N) at 36 supports this view:

“Where, however, the accused admits facts of which he has no personal knowledge further consideration arise. In such a case the considerations which have been mentioned earlier on in this judgment such as the sufficiency of the accused’s source of knowledge may become of decisive importance. However, even in such a case, the inquiry remains a factual one in the sufficiency and probative value of the admission depending on the circumstances of the particular case.”

18. In the present matters, it is quite obvious that the presiding officer’s questioning in terms of section 112(1)(b) like in the first two previous matters, still fell short of the standard required on the same reasons given during the court’s analysis of those two matters above. To avoid repetition, the said reasons will not be repeated in the current matters. In addition to the current matters for consideration, the presiding officer also failed in both these matters to further enquire about the contents of the statement in terms of section 212 but nevertheless became satisfied that they are guilty of the offence they pleaded to and convicted them. The statements were only admitted after the court convicted them. The presiding officer thus admitted the statement without a basis having been laid for its admittance by the accused. The situation is aggravated by the fact that the accused in the Matunda’s matter indicated to the court that he had not seen the certificate before.

19. Another problem which compounds the situation in respect of these two matters is the following:

When one looks at the questions by the presiding officer in the Matunda’s matter, it is quite obvious that they relate to the alternative count, that is driving with an excessive amount of alcohol which is above the legal limit. No questions whatsoever were put to the accused as to the main count “Driving under the influence of liquor or Drugs”. Nevertheless, the accused in this matter was convicted of the Main Count and not the alternative count.

In the Motona’s matter, a legal jargon “under the influence of intoxicating liquor” was used. The presiding officer never asked questions that could have revealed whether the accused senses were affected or not by the alcohol he had consumed, a fact which is crucial in the determination of whether the accused drove under the influence of alcohol or not. The presiding officer nevertheless convicted the accused of the main count.

20. I am of the view that in these two matters the presiding officer’s questioning in terms of section 112(1)(b) of Act 51 of 1977 also fell short of the standard required and come to the conclusion that the presiding officer

failed to apply the section properly and

convicted the accused of the main counts when their admissions relates to the alternative counts (Driving whilst the liquor in their blood was above the legal limit).

F. CONCLUSION

21. I am of the view that the plea of guilty of the accused in all four matters before me and their resultant convictions by the trial court cannot stand as such.

F. ORDER

21. Consequently the following order is made:

21.1 The convictions and sentences of the accused in all these matters are hereby set aside;

21.2 All four matters are referred back to the Magistrate Court (Lehurutshe) to start de novo before a presiding officer different from Magistrate Litabe.

_____

A. M. KGOELE

ACTING JUDGE OF

THE HIGH COURT

I agree

____

R. D. HENDRICKS

JUDGE OF THE

HIGH COURT

DATE: 19 MARCH 2009

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