Geidel v Bosman, NO and Another

• Jurisdiction: South Africa
• Citation: 1963 (4) SA 253 (T)

Geidel v Bosman, NO and Another
1963 (4) SA 253 (T)

1963 (4) SA p253

Citation	1963 (4) SA 253 (T)
Court	Transvaal Provincial Division
Judge	Trollip J and De Kock AJ
Heard	July 11, 1963
Judgment	August 1, 1963

Flynote : Sleutelwoorde C

Magistrate's court — Criminal proceedings — Trial — Determination whether accused conversant with language of witness — Duty of magistrate — Interpretation of witness's language — Necessity for — Whether decision of magistrate correct — Whole proceedings to be looked at — Act 32 of 1944, sec. 6 (2).

Headnote : Kopnota

D The most that is required of a magistrate to enable him, in terms of section 6 (2) of Act 32 of 1944, to form an opinion that the accused is conversant with the language of the witness is that, in applying his mind to this question, he should act reasonably in informing himself of the facts on which to base an opinion.

In order to decide whether a magistrate committed an irregularity in E opining that no interpretation of a witness's evidence was necessary, the whole proceedings should be looked at.

Case Information

Application to review proceedings in a magistrate's court. The facts appear from the reasons for judgment.

D.O. Vermooten, for the applicant.

G.H. Beale, for the respondents.

Cur. adv. vult. F

Postea (August 1st).

Judgment

G Trollip, J.:

These proceedings are brought by way of summons under Rule 90 of the Rules of Court to review, under secs. 19 (1) (b) and 24 (1) of the Supreme Court Act, 59 of 1959, certain magistrate's court proceedings in which the plaintiff (to whom I shall refer as 'the accused') was charged with and convicted on two counts of contempt of H court. The charges alleged that he sent documents to L.J. Botha and J.G. Siebert, respectively, which purported to be formal summonses commencing action against them in the magistrate's court. The accused is a white adult person living and carrying on business in South Africa. The trial commenced on the 18th March, 1963. He pleaded not guilty and was defended by an attorney, Mr. J.M. van den Heever. The charges were drawn and put to the accused in English and he pleaded thereto in the same language. The only evidence

1963 (4) SA p254

Trollip J

adduced for the State was that of the two above-mentioned complainants. They gave their evidence and were cross-examined by the accused's attorney in Afrikaans. The attorney then applied for the discharge of A the accused and on the conclusion of his argument the trial was adjourned until the 25th March, 1963. All those proceedings up till then were conducted in Afrikaans. On the resumption on the 25th March, 1963, the prosecutor opposed the application for discharge. He stated that he would argue in English for the benefit of the accused. Thereafter all argument, including the attorney's reply, was in English. The magistrate B then reserved his judgment and adjourned the trial. It was resumed on the 14th May, 1963, when the magistrate gave his decision refusing the application. The accused then gave evidence and was cross-examined in English, during the course of which the trial was again adjourned to the 28th May, 1963, when his evidence and the final addresses were C concluded. During the final addresses the attorney contended for the first time that the summons was bad for omitting to allege wilfulness on the part of the accused, whereupon the prosecutor applied for an amendment to include that allegation. This application was resisted, the note of the resistance on the record reading as following:

'Mr. v/d Heever objects to the amendment on the ground that it will D prejudice the accused; if this averment was originally inserted, the defence would have led evidence more fully as to the absence of wilfulness and would have cross-examined the State witnesses more thoroughly.'

The amendment was granted. The magistrate in his affidavit says that what happened thereafter was as follows:

'The court afforded Mr. v.d. Heever, the defending attorney, an E opportunity to address it further after the amendment had been granted, but before judgment, and thus to make application, in order to eliminate possible prejudice to his client, for the recall of the State and defence witnesses or for a postponement for the purpose of calling further witnesses. No such application was made.'

The accused was convicted and he has now noted an appeal against that conviction, but at this stage we are only seized with the review.

F The summons for review put forward two grounds on which it was contended that a gross irregularity had been committed in the proceedings, but before us Mr. Vermooten, who appeared for the accused, only relied upon one of those grounds. In support of that ground the accused in his affidavit stated in para. 3 thereof as follows:

G 'That the evidence adduced against me by the State was given in the Afrikaans language, which language is totally unknown to me and cannot be understood by me. I was consequently unable to understand the nature of the evidence and proceedings and was seriously prejudiced in my defence in that I was unable to instruct my attorney in regard to cross-examination on the evidence.'

On those facts he alleged that a gross irregularity had been committed H in that the magistrate had failed to satisfy himself that the language in which the evidence was given was a language with which the accused was conversant. In his replying affidavit the magistrate did not deny para. 3 of the accused's affidavit, but stated that the accused was represented throughout the trial by Mr. van den Heever, who was completely bilingual, that neither he nor the accused at any stage indicated to the court that the accused did not understand Afrikaans, that the attorney and the prosecutor used both English and Afrikaans during the course of the proceedings, that the accused gave his evidence

1963 (4) SA p255

Trollip J

in English in which he was fully proficient (from which I think that the magistrate deduced that he was educated), that he, the magistrate, therefore assumed that the accused was able to follow the evidence given against him in Afrikaans, and that by his failure to avail himself of A the opportunity afforded him to recall any of the witnesses after the application for amendment of the charges had been granted, and by his and his attorney's silence regarding his knowledge of Afrikaans throughout the trial, the court was led to believe that he had followed the evidence of the State witnesses.

B Sec...