S v Komane
| Jurisdiction | South Africa |
| Judge | Poswa J |
| Judgment Date | 07 November 2005 |
| Docket Number | H30/05 |
| Hearing Date | 07 November 2005 |
| Court | Transvaal Provincial Division |
| Citation | 2005 JDR 1343 (T) |
Poswa J:
This matter comes to me by way of review. The accused person, Mr Komane Oupa George Komane, aged 34, was convicted in the district magistrate's Court, Pretoria, on 27 September, 2004 of contravening the provisions of s 113 of Act 51 of 1977, in that he was found in
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possession of a piece of porcelain. He was sentenced to a period of imprisonment for two (2) years, without the option of a fine.
There is an entry oh the record of the history of various appearances and postponements that Mr Komane was advised, on 27 September, 2004, of his constitutional rights to legal representation and to remain silent. That reads thus
"Beskuldigde verstaan regverteenwoordiging/Regshulpraad - eie verduidelik, Beskuldigde verstaan aanklag. Beskuldigde verstaan aanklag. Pleit - 115."
Literally translated, into English, this reads:
"Accused understands legal representation/Legal Aid Board - own defence. Accused understands the charge. Plea - J15."
Notwithstanding the abundance of authorities that the record of the proceedings should contain in full the advice by the judicial officer to the accused person - including the accused person's responses in that regard (S v Manale [2000] 4 All SA 463 (NC); S v Nkonde 2001 (1) SACR 538 (W). S v Matladi 2002 (2) SACR 447 (T); S v Sibiya 2004 (2) SACR 82 (W); that did not happen in this case. Consequently, there is no indication as to precisely how Mr Komane was advised of his right to legal. representation, as to his own words when he reacted to the advice, including his reason for refusing legal assistance, whether the magistrate endeavoured to encourage Mr Komane to accept legal assistance and, if so, how that process
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unfolded. From the authorities cited above and many more cited in these authorities, it is clear that it is the presiding officer's duty to assist an unrepresented accused person; Except on one occasion, when he lent very perfunctory assistance, the magistrate allowed Mr Komane to wander through the trial unassisted. Both when he was questioned by the police on arrest and during the enquiry in terms of s 112(b) of the Criminal Procedure Act.
The magistrate did, however, advise Mr Komane of his procedural rights. In that respect, the magistrate put it thus:
"Die beskuldigde se regte aangaande verdedigingsaak is aan hom verduidelik...."
This translated literally, is, "the accused's right in respect of the defence case explained to him".
This was at the end of the state's case. All that was explained there was what his, an accused person's, options are after the close of the state's case i.e. his procedural rights, rather than his constitutional rights contained in s 35(3)(f), (g) and (h) of the Constitution of the Republic of South Africa, 1996 (the Constitution). I shall return to this aspect, later.
The state called one witness, Sergeant Masilo Silvester Mamagobo and Mr Komane testified without calling a witness.
Sergeant Mamagobo's testimony was to the effect that, whilst driving a police motor vehicle, in the company of a colleague, along Broedery
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Street, in Pretoria, he came across Mr Komane. That was on 25 September, 2004, at about 12:45. Mr Komane was sitting under a tree in a park. Sergeant Mamagobo stopped the motor vehicle and he, together with his colleague, approached Mr Komane. When they were a few metres before reaching him, Mr Komane stood up, with both hands in his trousers' front pocket. He pulled his left hand out of the pocket and the hand came out with a small plastic bag. He then threw the plastic bag down and then kicked it forward.
Sergeant Mamagobo then went to the plastic bag and picked it up and found that it contained a piece of ceramic porcelain. He then asked Mr Komane about this item - details of which question were not spelt out in evidence - Mr Komane said he had no knowledge about it, he did not know its purpose and what it was used for. Clearly, Mr Komane was not warned of his right to remain silent, in terms of s 35(1)(b) of the Constitution, of 1996 (the Constitution). Neither was he warned of his rights, in terms of s 35(1)(c), not to be compelled to make any confession or admission that could be used in evidence against him.
Sergeant Mamagobo went on to say that, porcelain is used for breaking motor vehicles' windscreens, because, when it comes into contact with a windscreen, the windscreen cracks and breaks up. Although the sergeant did not say that Mr Komane admitted possession of the porcelain, the magistrate then asked him whether he found Mr Komane's explanation of his possession of the porcelain reasonable. Sergeant Mamagobo's reply was strange. He said he did not accept
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the explanation as being reasonable because of the manner in which this happened, by which he seemed to be referred to the fact that Mr Komane kicked the plastic container. There were, he said in an answer to a question by the magistrate, no motor vehicles parked nearby where he found Mr Komane. Only when the magistrate questioned this reply did the sergeant then say that in the next block of streets, "die volgende blok of straat of strate" (as suggested by the magistrate), were there houses around the park with some people' s cars parked there, in the open. The penny eventually dropped. He still said, however, that Mr Komane did nothing, specifically, as he was seated under the tree. To the magistrate's further question, whether Mr Komane denied knowledge of ceramic or porcelain, Sergeant Mamagobo replied that Mr Komane denied knowledge of porcelain and that it was initially in his possession; before he kicked if away.
The magistrate then addressed Mr Komane on his right to cross-examine Sergeant Mamagobo and to mention aspects that he wanted to place in issue.
Mr Komane duly cross-examined Sergeant Mamagobo. The Sergeant stated that Mr Komane was searched by his colleague, Inspector Mashabele. He could not recall whether the inspector found anything else on Mr Komane. He conceded that there was another person seated underneath the tree, and that that person also was searched, saying that nothing was...
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