S v Uate (A744/08) [2008] ZAGPHC 377 (11 September 2008)

IN

THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

Magistrate Piet Retief

Case No: 286/08

High Court Ref No: 836

THE STATE vs HILARIO EUSEBIO UATE

REVIEW

JUDGEMENT

MURPHY J

The accused was convicted in the magistrate's court, Piet Retief of contravention of section 49(1)(a) of the Immigration Act 13 of 2007 and sentenced to a fine of R500-00 or 30 days imprisonment.

During routine checking the supervising magistrate came upon this case and after considering it sent it on special review for the following reasons:

"1. the written record and what really happened in court differs. The charge sheet and the roneo completed in terms of section 112(1)(a) of Act 57 of 1977 are not a true reflection of the proceedings in court.

No rights were explained to the accused, (right to legal representation, right in mitigation of sentence, rights to apply for

leave to appeal or rights to request a deferred fine),

The State had no opportunity of putting the charge to the accused nor did the accused plead to the charge.

Accused was never found guilty."

For those reasons then the supervising magistrate accordingly sent the matter on special review.

The matter then came before Davel AJ, who referred the matter to the Director of Public Prosecutions for comment. The Director of Public Prosecutions submitted that in the light of the seriousness of the allegations levelled against the presiding magistrate that the magistrate should be afforded the opportunity to comment on the allegations of the supervising magistrate. The Director of Public Prosecutions also submitted that the supervising magistrate should also elaborate as to what in her view transpired in court.

5. I have subsequently been furnished with the reasons of both magistrates. The reasons of Mr J Sambo, the presiding magistrate read as follows:

"1. I confirm that the roneo is not a true reflection of what transpired in court.

I did not make use of an interpreter and the proceedings was in Tsonga, English and Portugese.

I did not give the Prosecutor a chance to put the charge and told the accused myself what the charge against him is.

Only after the charge was put by me did I explain accused rights to legal aid and legal representation.

I did not explain accused rights before sentencing but did question him in mitigation before sentence.

I forgot to explain accused rights to apply for a deferred fine or rights to apply for leave to appeal.

There was a Tsonga interpreter available on the day in question but he was busy in the other court and I decided not to wait for him."

6. Mrs S Kusche, the checking magistrate furnished the following reasons:

"1. I have listened to the recording of the above case and the transcribed record is a true reproduction of what happened in court and not the roneo.

The reason the original transcribed record is not a correct version is due to the fact that an interpreter was not used.

I took an interpreter and transcribed the proceedings of the 30th January 2008. His certificate is attached.

The Magistrate did not make use of an interpreter and the proceedings was in Tsonga, English and Portugese.

The Magistrate himself told the accused what the charge against him is.

After the charge was put by the magistrate the magistrate explained accused rights to legal aid and legal representation.

Before sentencing the rights was not explained but accused was questioned in mitigation of sentence.

After sentence accused rights to apply for a deferred fine or rights to apply for leave to appeal was not explained."

Looking further at the record it would appear also that there is some doubt about whether the accused even pleaded.

Accordingly, the conclusion is inescapable that the proceedings are tainted by gross-irregularities requiring that they be set aside. The magistrate himself admits as much.

The Director of Public Prosecutions has recommended that this matter be brought to the attention of the Magistrates Commission for appropriate action to be taken against the magistrate. I agree. The Director of Public Prosecutions goes further and suggests that criminal charges must also be investigated against him. I think for present purposes it will be sufficient that the matter be referred to the Magistrates Commission and it should decide on what the appropriate course of action should be.

In the premises, the following orders are issued:

The conviction and sentence is set aside.

The matter is referred to the Magistrates Commission for consideration of the conduct of the presiding magistrate.

JR

MURPHY

JUDGE

OF THE HIGH COURT

I agree

CP

RABIE