PRESIDING OFFICER UNAVAILABLE AFTER PLEA BUT BEFORE EVIDENCE – SECTION 118 CPA APPLICABLE

DAVID v REGIONAL COURT MAGISTRATE AND OTHERS 2018 (1) SACR 702 (ECB)

 

Trial — Presiding officer — Unavailability of to continue with trial — After plea of not guilty but no evidence adduced — Purpose of s 118 of CPA to cater for situations where judicial officer becomes unavailable after plea, but before evidence — Permissible that trial continue before judicial officer who is available.

 

The applicant, together with 10 other accused, appeared before the first respondent in a regional magistrates’ court on charges of fraud. They all pleaded not guilty and no evidence was adduced. After several postponements they appeared again some 18 months later and, because the first respondent was not available, the parties agreed that the matter could proceed before the second respondent, an acting regional court magistrate. The state then called a witness whose evidence was led before the matter was postponed again. When the matter resumed, the legal representative for the first three accused withdrew and the matter had to be postponed again. Shortly before the trial was due to resume, the applicant, now advised by a new legal representative, relying on the provisions of s 118 of the CPA, launched the present proceedings in which he sought an order that the decision of the first respondent ‘to recuse herself’, and the appointment of the second respondent to preside in the matter, be set aside.

After remarking that there was a singular lack of evidence produced in the applicant’s papers, including no evidence that the first respondent had recused herself,

Held, that, although it was true that once an accused pleaded not guilty he was entitled to a verdict before that judicial officer before whom he had pleaded, the purpose of s 118 of the CPA was to cater for situations where the judicial officer became unavailable after the plea but before evidence had been led. In such a case it was permissible that the trial could continue before a judicial officer who was available. No irregularity had been committed by continuing the matter before the second respondent. (See [19] – [23].) The application was dismissed.

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Arms and ammunition — Declaration of unfitness to possess firearm in terms of s 103(1) of Firearms Control Act 60 of 2000 — Magistrate failing to hold inquiry into unfitness of accused

S v HORN 2018 (1) SACR 685 (WCC)

Arms and ammunition — Declaration of unfitness to possess firearm in terms of s 103(1) of Firearms Control Act 60 of 2000 — Magistrate failing to hold inquiry into unfitness of accused on conviction of housebreaking with intent to steal and theft — Magistrate since having resigned — Court ordering on review that accused not unfit to possess firearm.

 

The accused was convicted in a magistrates’ court by an acting magistrate, an advocate who was appointed on a contract basis for six months. It appeared on review that the magistrate had committed a number of misdirections, inter alia, she had imposed an incompetent sentence; had failed to get the accused to sign his previous-convictions form, indicating that he admitted the previous convictions; had imposed a fine (wholly suspended) on an accused who was unemployed; had failed to conduct an inquiry required by s 103 of the Firearms Control Act 60 of 2000; referred the accused to the Department of Social Development after sentence was handed down; and had ‘discharged’ a co-accused against whom the charges had been withdrawn by the state.

 

The court held that the proceedings, as far as the sentence was concerned, were not in accordance with justice and had to be set aside and corrected. Because no inquiry was held in terms of s 103 of the Firearms Control Act 60 of 2000 it would be prejudicial to the accused to make an order that he be disqualified from possessing a firearm. In the light of the fact that he was not given an opportunity to address the court in this regard, it was appropriate in the circumstances to order that he not be declared unfit to possess a firearm. The court substituted the sentence with a competent sentence and ordered that the charges against the other accused be withdrawn by the state.

Theft — Proof of — Doctrine of recent possession — Nature of objects stolen relative to time lapse from theft important

S v WITBOOI AND OTHERS 2018 (1) SACR 670 (ECG)

Theft — Proof of — Doctrine of recent possession — Nature of objects stolen relative to time lapse from theft important.

 

Evidence — Admissibility — Pointing-out — Pointing out in circumstances which would not have aided investigation of crime other than to obtain self-incriminating evidence — Tantamount to confession in guise of pointing-out.

 

In an appeal against convictions in a regional magistrates’ court for attempted murder and robbery with aggravating circumstances, it appeared that the convictions were based on the doctrine of recent possession; and, in the case of the third appellant, on the basis of certain pointings-out that he had made.

The first appellant was found in possession of a rifle 15 days after it had been taken from the victims of the robbery. The second appellant was found in possession of a briefcase, a revolver and pepper spray 16 days after they had been taken in the same robbery. Although the third appellant admitted that the contents of the pointing-out document had been correctly recorded, he testified that he had been assaulted and threatened with assault if he did not do the pointing-out. In his warning statement he had indicated that he was prepared to point out what he knew about the incident.

 

Held, as to the discovery of the rifle in the possession of the first appellant, that there were contradictions between the state witnesses as to the circumstances in which the rifle was found in a shack belonging to the first appellant. Although there was a great deal of suspicion concerning the first appellant’s involvement in the crime, that suspicion was insufficient to find that the state had proved his guilt beyond a reasonable doubt, and his appeal had to succeed. (See [41] – [42].) The appeal against the conviction was accordingly upheld.

 

Held, further, that, in the case of the revolver found in the possession of the second appellant, it was an item which could quickly be disposed of and the lapse of time between the crime, and the finding was not very short. However, the briefcase, which was described as being exceptional, was not something which would lend itself to quick disposal, and the lapse of time was therefore short. The appellant’s possession of the articles indicated that he must have acquired all of them at the same time and place, and his possession of them at different times and places suggested an intention to keep them for his own use. Furthermore, his explanation that he had picked them up on a railway line was grossly improbable. The magistrate had not erred in drawing the inference that he was one of the perpetrators of the crime. (See [44] – [45].) The appeal was dismissed in respect of the conviction.

Held, further, that the circumstances of the pointing-out suggested a willingness to provide information rather than do a pointing-out. By that time the police knew the details of the crimes and the first and second appellants were already implicated. A pointing-out would not have aided the investigation of the crimes, other than to obtain self-incriminating evidence from the third appellant. In the circumstances, the suggestion of a pointing-out did not make sense and was tantamount to a confession in the guise of a pointing-out. It was furthermore not proved that the pointing-out and subsequent confession were voluntary. The appeal against his conviction therefore had to succeed.

Review — In what cases — Leave to appeal against conviction in regional magistrates’ court refused, but granted in respect of sentence — Discovery at hearing of appeal that no assessors appointed in violation of s 93ter(1) of Magistrates’ Courts Act 32 of 1944 — Fatal irregularity that could (not) be corrected on review — Court accordingly setting aside proceedings

S v MOYO 2018 (1) SACR 658 (GJ)

Trial — Assessors — Failure to appoint in violation of s 93ter(1) of Magistrates’ Courts Act 32 of 1944 — Explanation that assessors not appointed due to ‘lack of resources’ — Court’s concern at this brought to attention of Minister of Justice.

Review — In what cases — Leave to appeal against conviction in regional magistrates’ court refused, but granted in respect of sentence — Discovery at hearing of appeal that no assessors appointed in violation of s 93ter(1) of Magistrates’ Courts Act 32 of 1944 — Fatal irregularity that could be corrected on review — Court accordingly setting aside proceedings.

 

The appellant was convicted in a regional magistrates’ court of murder and intimidation and was sentenced to 23 years’ imprisonment. He was refused leave to appeal, but on petition to the Judge President he was granted leave to appeal against his sentence. When the matter was heard, counsel for the appellant contended that, in respect of the count of murder, the court a quo was not properly constituted in terms of s 93ter(1) of the Magistrates’ Courts Act 32 of 1944. This was because the regional magistrate had not informed the appellant before the commencement of the trial that it was a requirement of the law that he had to be assisted by two assessors, unless the accused requested that the trial proceed without assessors. It was contended that this amounted to a failure of justice and the conviction and sentence had to be set aside. Seeing as the matter had come before the court on appeal only against sentence, the court had to decide whether it could determine the appeal against the conviction where leave had not been granted beforehand.

 

Held, that the fact that the appellant in the present matter had noted an appeal should not preclude him from being able to approach the court to review the proceedings, and accordingly review proceedings were available, despite leave to appeal against the conviction having been refused. (See [27].)

The court accordingly made an order setting aside the proceedings in the regional magistrates’ court as not being in accordance with justice. The court also noted that the regional magistrate had, in explanation, commented on the failure to appoint assessors as being because of a ‘lack of resources’. The court was greatly concerned about this state of affairs and ordered that a copy of the judgment be referred to the Minister of Justice.

Review — In what cases — Part-heard matter in which magistrate had resigned — Magistrate having duty to finalise case — Resignation of magistrate not justifiable reason for invoking s 304 of Criminal Procedure Act 51 of 1977.

S v DYIDI 2018 (1) SACR 630 (WCC)

Review — In what cases — Part-heard matter in which magistrate had resigned — Magistrate having duty to finalise case — Resignation of magistrate not justifiable reason for invoking s 304 of Criminal Procedure Act 51 of 1977.

 

The present matter was sent on special review because the presiding magistrate had subsequently resigned, and was no longer available to hear the matter. At the stage when the magistrate’s resignation took effect, the accused had already pleaded, and the magistrate had noted the accused’s plea explanation in terms of s 115 of the Criminal Procedure Act 51 of 1977 (the CPA).

 

Held, that the fact, that the magistrate had resigned and was no longer available to finalise his part-heard matters, was not a justifiable reason for invoking s 304 of the CPA. The provision was not enacted for situations such as the present one. The original magistrate had a duty to finalise the case and could not shirk that duty merely because he had resigned. (See [10] – [12].) The application for special review was dismissed and the matter was remitted back to the magistrates’ court for the original magistrate to finalise the trial.

Theft — Proof of — Shopper forgetting to pay for item put into personal bag

S v MAKHALIMA 2018 (1) SACR 625 (ECG)

 

Theft — Proof of — Shopper forgetting to pay for item put into personal bag — Accused distracted by telephone call from spouse whilst at paypoint and putting item into said bag in order to distract child — Accused’s version reasonable and ought to have been given benefit of doubt.

 

The appellant was convicted in a magistrates’ court of theft. It was alleged that he had stolen a bottle of energy supplement from a shop where he had made some purchases. In his defence, the appellant testified that he went to the shop accompanied by his young child whom he put into a shopping trolley that was constructed to look like a vehicle. His child was in a separate compartment that gave him the illusion of driving the trolley. He selected the supplement from the shelf and put it into the trolley, at which point his child became excitable and wanted to taste it. In order to distract the child, he put the supplement into a green bag, which also contained his wallet and his car keys, and gave his child some chips instead. When he got to the paypoint he put his items on the counter, including the green bag, but was distracted by a telephone call from his wife. He paid for the other items but not the supplement, and was apprehended as he attempted to leave the shop.

The magistrate was of the view that he could not have forgotten about the supplement and should have taken other steps to distract his child, rather than put the supplement into his bag. She also reasoned that because he was holding the bag he should have felt the weight of the supplement.

 

Held, that the magistrate had resorted to speculative reasoning in rejecting the appellant’s evidence. It was not improbable that a parent would be distracted by a child and forget to pay for an item. There was no evidence, on behalf of the state, of the manner in which the appellant put the supplement into the bag, or what the child was doing when he did so. His version was also supported by evidence of the state that, when confronted outside the shop, he immediately said the supplement was in the bag and that he had forgotten to pay for it. This was a case where there was a reasonable doubt about the guilt of the accused, and the appellant should have had the benefit of that doubt.

Indictment and charge — Amendment of — By presiding officer without giving accused opportunity to address court on amendment — Failure constituting fundamental irregularity destroying validity of amendment

S v THAKELI AND ANOTHER 2018 (1) SACR 621 (SCA)

 

Indictment and charge — Amendment of — By presiding officer without giving accused opportunity to address court on amendment — Failure constituting fundamental irregularity destroying validity of amendment.

 

The appellants were indicted in a regional court on a charge of murder subject to the provisions of s 51(2) of the Criminal Law Amendment Act 105 of 1997. After they had pleaded and testified in their defence, the court amended the charge by deleting the reference to s 51(2), without giving them an opportunity to address the court in respect of the amendment, and then convicted them of murder under s 51(1). They were sentenced to 28 years’ imprisonment each. On appeal,

Held, that the failure to afford the appellants a full and proper opportunity to address the issue of the amendment to the indictment constituted a fundamental irregularity that infringed their fair-trial rights, and destroyed the validity of the amendment. It was not possible to say with certainty that they suffered no prejudice as a result of the amendment, and that they should have been sentenced in terms of s 51(2). (See [7].) The appeal against sentence was upheld and the sentences were altered to sentences of 15 years’ imprisonment.