S v Thobela (258/07) [2007] ZAGPHC 204; 2008 (1) SACR 605 (W) (11 September 2007)

IN THE HIGH COURT OF

SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

High Court Ref No: 258/07

Magistrate’s Serial No: 87/08

Review Case No: DV237/2001

11 September 2007

Magistrate

ROODEPOORT

THE STATE v ELLIOT THOBELA

SPECIAL REVIEW JUDGMENT

MOSHIDI, J:

[1] INTRODUCTION:

This matter was placed before me on special review in terms of s 304 of the Criminal Procedure Act, 51 of 1997 (the Act).

[2] The accused was charged with assault with the intention to do grievous bodily harm before Magistrate, Mr Themba Gwebu (the trial Magistrate), in the Roodepoort Magistrate’s Court. For the sake of completeness, I paraphrase the contents of the charge sheet. It was alleged that the accused assaulted the complainant, Flora Moditwana, by hitting her with a bottle at Dobsonville on 12 May 2001.

[3] THE HISTORY OF THE TRIAL:

The first appearance before the trial Magistrate was on 22 May 2001 whereafter the matter was postponed several times. On 12 July 2001 the accused pleaded guilty to the charge. However, the trial Magist rate, acting in terms of s 113 of the Act, altered the plea to that of not guilty on which basis the trial proceeded. The accused was unrepresented. At the conclusion of the defence case, the trial Magistrate reserved judgment and postponed the matter for such purpose to 17 July 2001. During the trial, the accused had been released on warning until 31 January 2007 as explained below.

The record of the proceedings in the court below indicates the following:

On 17 July 2001 before Magistrate Mr Thobela:

“Acc before court. Rem 23/07/2001 and transferred to ‘E’ Court Roodepoort for the presiding officer – Mr Gwebu. Accused warned for ‘E’ Court 8h30. ”

o n 23 July 2001, the trial Magistrate presided. He authorised a warrant for the arrest of the accused as the accused was absent;

a fter a period in excess of 5 years and 5 months, to wit, 31 October 2006, the accused was eventually brought before another Magistrate. The accused was remanded in custody. The matter was postponed to 3 November 2006 in order to secure the attendance of the trial Magistrate. The reason for the absence of the trial Magistrate was not provided to the accused at that stage;

o n 3 November 2006, the accused appeared in court. He was informed by the presiding Magistrate for the first time that the

trial Magistrate was no longer employed by the Department of Justice pursuant to his resignation. The matter was postponed to 10 November 2006. Although it is not clear ex facie the record, it appears that the accused was also informed that review proceedings would be initiated;

on 10 November 2006, the accused, who had been denied bail since his re-arrest on 31 October 2006, appeared in court. On this occasion he was informed by the presiding Magistrate that the trial Magistrate had left the service of the Department of Justice about two years ago (2004). The presiding Magistrate also informed the accused that the proceedings in his pending trial would be forwarded to this Court on review. Bail was fixed in the amount of R500,00 which the accused paid only on 31 January 2007. The matter was postponed to 31 January 2007. At that stage the accused had been in custody for three months.

[4] The delay from 10 November 2006 to the time when this matter first came to my attention has not been explained at all. Although the letter from the Magistrates, Messrs M J Thobela and M Bissessar, in referring this matter to this Court on review, was dated 16 November 2006, the review covering sheet (J4) was only signed by the Magistrate on 28 March 2007, a delay of more than five months. The matter finally reached the Registrar’s office on 29 May 2007. This is a further delay of more than two months after the Magistrate signed the letter of 28 March 2007.

[5] On 31 May 2007 I caused a letter to be hand-delivered to the Director of Public Prosecutions in which I stated, inter alia, the following:

“Although it is obvious that a trial de novo is inescapable if the state wants to prosecute, I shall nevertheless appreciate your comments. I am rather concerned about the inordinate delays. There was a further delay from November 2006 when the accused was informed of the absence of erstwhile presiding officer and review proceedings, up to the time this matter landed on my desk (30/5/2007).”

[6] In the letter of 16 November 2006 the Magistrates aforementioned state:

“We are of the view that the trial should start de novo before another presiding officer, but the situation could arise that the state witnesses could not be traced and this could lead to an invidious position, in that, the accused at the present state of affairs is entitled to a verdict. (Section 106(4) of Act 51 of 1977 – Pushon v Wise 1948 (1) SA 81 (N), Zackey v Magistrate of Benoni 1957 (3) SA 12 (T); Magubane v Van der Merwe 1969 (2) SA 417 (N).)”

[7] On 16 August 2007 I received the comments of the Director of Public Prosecutions for which I am grateful. In short, the comments were in support of the view of the Magistrates that the proceedings of the trial Magistrate be set aside, paving the way for a de novo trial before another Magistrate; that the accused was partly to blame for the delay; and that the alleged assault on the complainant appears to be very serious. In this regard, I was not referred to any authorities save for those mentioned by the two Magistrates, as quoted above.

[8] There were only two witnesses who testified during the trial, namely the complainant and the accused whereafter the defence case was closed. I deal with their respective versions later.

[9] Section 275 of the Act provides as follows:

“275 Sentence by judicial officer or judge other than judicial officer or judge who convicted accused

(1) If sentence is not passed upon an accused forthwith upon conviction in a lower court, or if, by reason of any decision or order of a superior court on appeal, review or otherwise, it is necessary to add to or vary any sentence passed in a lower court or to pass sentence afresh in such court, any judicial officer of that court may, in the absence of the judicial officer who convicted the accused or passed the sentence, as the case may be, and after consideration of the evidence recorded and in the presence of the accused, pass sentence on the accused or take such other steps as the judicial officer who is absent, could lawfully have taken in the proceedings in question if he or she had not been absent.

(2) Whenever-

(a) a judge is required to sentence an accused convicted by him or her of any offence; or

(b) any matter is remitted on appeal or otherwise to the judge who presided at the trial of an accused,

and that judge is for any reason not available, any other judge of the provincial or local division concerned may, after consideration of the evidence recorded and in the presence of the accused, sentence the accused or, as the case may be, take such other steps as the former judge could lawfully have taken in the proceedings in question if he or she had been available. ”

It is evident that, a lthough section 275 of the Act makes provision for an accused person to be sentenced by a judicial officer other than the one who convicted the accused and who has since become unavailable in certain circumstances, the Act does not contain any express provision covering the situation that has arisen in the instant matter. In other words, it does not make provision for the further conduct of a part-heard matter before conviction if the trial court becomes unavailable for whatever reason. See S v Suliman 1969 (2) SA 385 (AD). In S v Makgetle 1980 (4) SA 256 (B) at 257C, the following is said:

“There is no direct authority on the instance where the magistrate has resigned from the service. It is however clear that he is in the same position as one who is in the absolute sense unavailable, like a magistrate who has died or has recused himself.”

The case of Makgetle supra was compared in S v Olyn 1984 (2) SA 75 (NCD), at p 78B. In S v Polelo 2000 (2) SACR 734 (NCD), the State’s case was closed but the defence had not yet commenced placing its case before the court when the trial Magistrate resigned. On special review, it was held “that where a presiding magistrate withdraws from a case for one or the other reason the case must be commenced de novo before another presiding officer and such procedure is followed without the need for any court to declare the previous trial to be a nullity and ordering the matter to be tried before another judicial officer”. In the case of S v Tyumre 1990 (2) SACR 528 (CK), the decision of the trial Magistrate in a part-heard case to recuse himself since he was transferred to the then Attorney-General’s office, was upheld. The court held that the prosecution could be instigated de novo should the Attorney-General see fit to do so.

[10] The instant matter is not one where the trial Magistrate has either died; is on pension; recused himself; inflicted by long illness; is suspended or separation of trials has been ordered. See S v Tlailane en Ander 1982 (4) SA 107 (T). It is common cause that the trial Magistrate has resigned from the service of the Department of Justice as a Magistrate, and apparently during the period when the accused had absconded. In S v Lapping 1998 (1) SACR 409 (WLD), the trial Magistrate had been arrested for fraud charges during a part-heard matter. She was suspended from duty in terms of the Public Service Act, 1994. In setting aside the pending proceedings enabling the then Attorney-General, where he chose, to prosecute the accused de novo before another Magistrate, the court was satisfied that “the trial magistrate in the present matter is obviously totally incapable of continuing with the trial unless and until her suspension from service is terminated. It goes without saying that this Court cannot interfere with the exercise of the discretion contained in s 2(7) of the Public Service Act … for the purpose of ensuring that the trial proceeds before her. Nor can it be assumed that the trial magistrate will ultimately be dismissed and thereby remain incapacitated from continuing with the trial. In the meantime, however, the trial is being delayed. The familiar truism ‘justice delayed is justice denied’ has found expression (albeit somewhat ungrammatically, because of the dictates of gender equality) in s 35(3)(d) of the Constitution, Act 108 of 1996, as follows: ‘Every accused has a right to a fair trial, which includes the right –

…

(d) to have their trial begin and conclude without unreasonable delay.’” I shall revert later to the provisions of the Constitution just quoted.

[11] In S v Lapping supra, the court also noted that there was in fact no decision in South Africa where a court has sanctioned proceedings being commenced de novo in any case other than when the Magistrate is permanently unable to continue. It, however, appears to me that there is merit in the contention that each case must be adjudicated on its own merits. An example is the case of S v Mmampa and Another 2001 (2) SACR 242 (WLD). In this case a part-heard matter could not proceed as the Magistrate became ill and applied for his early retirement. The accused later appeared before another Magistrate. The trial proceeded de novo. It appeared that there was uncertainty as to if and when the first Magistrate would resume duties. On review, the court held that as the first Magistrate had not in fact yet retired and was thus not functus officio, the proceedings should not have commenced before the second Magistrate. However, the court held that in terms of section 304(2)(c)(vi) of the Act, it could deal with the matter and that this would be in the interests of justice. The court concluded that it would promote the ends of justice if the matter proceeded before a second Magistrate. As in the case of S v Lapping supra, in the case of S v Bireke 2003 (2) SACR 225 (TPD), the Magistrate had been arrested during a part-heard trial. The Magistrate was not willing and not in a position to

finalise the trial. On review, the court held that, although it was only doubtful that the Magistrate would ever be able to proceed with the trial, it would be likely that the ends of justice would be promoted if the trial were to proceed before a second Magistrate. In certain circumstances where the trial Magistrate became unavailable in the absolute sense, to proceed with a part-heard matter, such proceedings being a nullity, a formal declaration of nullity before fresh proceedings could be instituted before another Magistrate, was deemed unnecessary. See S v Hanekom 2004 (1) SACR 490 (CPD). The case law in the different Provincial Divisions shows that different approaches have been adopted in similar circumstances. In certain instances proceedings similar to the present matter, the proceedings were simply regarded as a nullity. See in this regard “South African Law and Procedure” (formerly Gardiner and Landsdown), Vol. V, p.

486. In such instances it was then left to the prosecution authorities to prosecute the accused afresh. In other cases, the proceedings were first declared by the courts as a nullity before de novo proceedings could be instituted. It appears to me that this inconsistency and uncertainty in the criminal procedure requires unambiguous settlement in future case law or alternatively, an appropriate amendment to the Act by the legislature.

[12] I revert to the current matter. Both the two Magistrates referred to above, as well as the Director of Public Prosecutions, are of the view that the trial should commence de novo before another Magistrate. The basis for this is that the trial Magistrate is out of the service of the Department of Justice. He is unavailable in the absolute sense to finalise the trial. He still had to pronounce whether the accused was guilty or not. The only issue that concerns me immensely is whether the ends of justice would be promoted should the accused again be put through the agony, anxiety, expense and time of a retrial especially in view of such inordinate delays. Put differently, whether it can be argued that the accused will have a fair trial should the proceedings start afresh. In the light of the inconsistency and uncertainty alluded to in par (11) above, as well as the view I take in this matter, I specifically refrain from declaring the proceedings in the instant matter as a nullity as this will undoubtedly expose the accused to a fresh trial.

[13] As pointed out in S v Lapping supra, s 35(3)(d) of the Constitution of the Republic of South Africa Act, 108 of 1996 entrenches the accused’s right to have his trial begin and conclude without unreasonable delay. In the instant matter, although the accused was partly to blame for the delay by his absconding during the trial, what is however, particularly disconcerting are the inordinate delays from 3 November 2006. This is the date on which the accused was told for the first time of the unavailability of the trial Magistrate. It was not explained by the Magistrates referred to above why their letter of 16 November 2006, sending the matter on review, only reached the Registrar in March 2007. This had nothing to do with the accused. The failure of the clerk of the court or, in this case, the Magistrate to transmit timeously the record on review, can have prejudicial implications for an accused person. In dealing with a delay of two months in the submission of a record, Southwood J, in S v Raphatle 1995 (2) SACR 452 (T), at p. 453h states:

“Delays of this kind cannot be condoned as the accused can be seriously prejudiced.” See also S v Maja and Others 1998 (2) SACR 673 (T). In a later decision, although dealing with the late submission of a record under s 303 of the Act, in S v Maluleke 2004 (2) SACR 577 (TPD), at p. 582 par. 12, Webster J says:

“The consequences of failing to comply with the provisions of s 303 have not, from the limited research I could undertake, authoritatively been dealt with. Its import needs no emphasis. Failure to comply with the section is certainly an infringement of the rights of an accused person. That right cannot be compromised, hence the view that accused persons whose review matters are not forwarded timeously may sue for damages … But the regularity with which records are dispatched late, even where an accused was convicted after pleading guilty and the record consists of a few pages, needs scrutiny as admonitions from the Bench are ignored.”

[14] In the present matter the record consists of twelve patchy typed pages only. The complainant testified that the accused, who was known to her as they stayed in the same yard, hit her with an empty beer bottle. The version of the accused, who was admittedly drunk, was that the complainant provoked him by calling him a witch as he carried a traditional beer container. The submission of the Director of Public Prosecutions in this regard that the assault was so serious that the matter should not ‘die a natural death’, is without any serious merit. There was no medical evidence to support this contention. The Director of Public Prosecutions also concedes that there may be some difficulty in tracing the witness or witnesses in the event of a fresh trial. This view is shared by the Magistrates who referred this matter to this Court on review.

[15] There is a further matter that needs to be considered. When the accused was re-arrested on an unspecified date, he appeared in court on 31 October 2006. The obligatory enquiry into the default of the accused was not held. The Director of Public Prosecutions concedes this fact. There is therefore no conclusive evidence that the accused stayed away intentionally from the proceedings. He could have had a plausible explanation for such default.

[16] In dealing with a delay of about eleven and a half weeks in transmitting a review record after the imposition of sentence by a Magistrate, Binns-Ward AJ, in S v Joors 2004 (1) SACR 494 (CPD) at p. 498g-h, says:

“The provisions of s 35(3) of the Constitution set out a number of component rights, which are included in the overarching concept of the right to a fair trial. These include the right of an accused person to have his or her trial begin and conclude without unreasonable delay and the right of appeal to, or review by, a higher Court. The provisions of s 303 provide in part the statutory machinery that is in place to give effect to the constitutional rights enshrined in s 35(3) of the Constitution. The extent to which the provisions were ignored, with substantial prejudicial effect to the accused in this case, is such that it might in itself have been a factor sufficiently material to exclude any confirmation by this Court of the proceedings in the magistrate’s court. The provisions certainly bear closely enough on the concept of what is included in a fair trial to beg the question as to what the result should be of so material a infringement of the rights” I am in respectful agreement with these comments. In S v Dzukuda and Others; S v Tshilo 2000 (4) SA 1078, at p. 1092B-C, Ackermann J, (as he then was), said:

“There are, however, other elements of the right to a fair trial such as, for example, the presumption of innocence, the right to free legal representation in given circumstances, a trial in public which is not unreasonably delayed, which cannot be explained exclusively on the basis of averting a wrong conviction, but which arise primarily from considerations of dignity and equality.”

[17] In the present matter, the offence is alleged to have occurred as far back as 12 May 2001. The accused was arrested on 18 May 2001, even though he was known to the complainant. The unterminated proceedings commenced on 17 July 2001. The trial Magistrate reserved judgment in what appears to be a simple matter in which only two witnesses testified. It is disquieting that this matter has been permitted to drag on for over six years. The accused, in my view, has suffered substantial prejudice. A trial de novo will inevitably result in further prejudice to the accused. Such prejudice, in my view, will be such as is described in Coetzee and Others v Attorney General: KwaZulu Natal and Others [1997] 3 All SA 241 (D). The ordinate delays simply remain unexplained even though this is not a review in terms of s 303 of the Act.

[18] For all the aforegoing reasons, and having considered all the relevant factors, I am of the view that the interests of justice will be properly promoted if the accused were to be acquitted in this matter.

[19] In the result, the following order is made:

“The accused is found not guilty and discharged.”

_____

MOSHIDI J

JUDGE OF THE HIGH COURT

I agree:

GOLDSTEIN J

Special review – delay in submission of record of proceedings – record submitted about seven months after the accused was informed of the trial Magistrate’s unavailability. Court of the view that the rights of accused to a fair and speedy trial in terms of section 35(3)(d) of the Constitution were violated – the accused acquitted. Section 275 of the Criminal Procedure Act, 51 of 1977 requiring amendment to deal with part-heard matters before conviction in absence of trial Magistrate – when are de novo proceedings to be instituted in part-heard matters prior to conviction?