S v Molawa; S v Mpengesi
Jurisdiction | South Africa |
Judge | Moshidi J and Pandya AJ |
Judgment Date | 31 May 2010 |
Citation | 2011 (1) SACR 350 (GSJ) |
Docket Number | 234/09 & 235/09 |
Hearing Date | 25 May 2010 |
Counsel | Information not supplied |
Court | South Gauteng High Court, Johannesburg |
Moshidi J:
Introduction D
[1] The two matters discussed in this judgment were placed before me on automatic review in terms of s 302(1) of the Criminal Procedure Act 51 of 1977.
[2] In both matters, adjudicated on by the same magistrate — Mr E CL Mqalo, the trial magistrate in the Randfontein magistrates' court — no reasons at all were furnished for the convictions and sentences at the end of the respective trials. The reviews therefore concern the failure of the trial magistrate to furnish reasons for the judgments as described below.
F [3] It is, for practical reasons, convenient to deal with both cases simultaneously. I also set out the facts of each case separately.
The facts in the case of LV Molawa, CASE No A 388/2009 (the Molawa matter)
G [4] The accused was charged with robbery, read with the provisions of ss 51(2), 52(2), 52A and 52B of the Criminal Law Amendment Act 105 of 1997. The State alleged that on 20 June 2008, at Mathanzima Street, Mohlakeng, in the district of Randfontein, the accused robbed Boitumelo Morane (the complainant) of a Nokia cellphone valued at R800. The accused, who elected to conduct his own defence, pleaded H not guilty. The complainant testified and was cross-examined by the accused. At the end of the State's case the accused testified in his own defence and also called, as a witness, his mother. However, she could not advance the version of the accused in any way. Thereafter both the prosecutor and the accused addressed the court on the merits of the case. I The trial magistrate thereafter, quite uncharacteristically, simply pronounced as follows: 'Found guilty as charged.' No reasons whatsoever were given for the basis of the verdict. The matter was postponed for defence witnesses in mitigation of sentence. On the next court appearance the accused called two witnesses. However, both these witnesses had virtually nothing to say. In fact, it is not entirely clear what J transpired, since the record is critically shorthanded. Suffice to say that
Moshidi J
neither witness could advance the accused's case. Little wonder that A there was no cross-examination of these witnesses. Thereafter, and once more, strangely, the record reflects as follows:
'Appeal and Review right explained. Accused understood. See J 15 for sentence.'
Indeed, the J15 records: B
'To undergo twelve (12) months imprisonment. Section 103 of Act 60 of 2000 — unfit to possess firearm.'
Once more, no reasons at all were furnished for the sentence imposed.
The facts in the case of BW Mpengesi, CASE No A 421/2009 (the C Mpengesi matter)
[5] The trial magistrate followed virtually the same pattern as in the previous case. The accused was charged with assault with intent to do grievous bodily harm. The State alleged that on 25 July 2009, at Mohlakeng, Randfontein, the accused assaulted Berman Dibetso by D stabbing him with a knife/panga/bushknife. As in the previous matter, the accused elected to conduct his own defence. He pleaded not guilty and tendered a statement in terms of s 115(1) of the Criminal Procedure Act 51 of 1977. The complainant testified and was cross-examined by the accused. Two other witnesses also gave evidence for the prosecution. They were also cross-examined by the accused. Thereafter the accused E testified as the only witness for the defence. The accused was cross-examined. Both the public prosecutor and the accused addressed the court. Thereafter, as in the previous matter, the trial magistrate summarily pronounced: 'Found guilty as charged.' No reasons were given at all. The accused testified in mitigation of sentence, whereafter both the F accused and the public prosecutor addressed the court on sentence. Thereafter the record reflects the following:
'BY COURT:
Appeal and Review right explained and understood. See J 15 for sentence.' G
The J15 reflects the sentence imposed as follows:
'To undergo six (6) months imprisonment. Section 103 Act 60 of 2000 — Unfit to possess firearm.'
Once more, no reasons were furnished for the sentence imposed. H
[6] On perusal of the record of the proceedings, I naturally requested the trial magistrate to supply the reasons for judgment on conviction and sentence in both matters. In due course, and in respect of the Molawa matter, the trial magistrate furnished the following reasons:
'AD CONVICTION I
'Both complainant and accused are known to each other. They stay in the same street. They school together. The complainant only identified accused as he is well known to her. The other person got away. Accused hit the complainant on her mouth with a bottle and took the cell phone. The cell phone was in her pocket. The accused version was rejected by court as false. He denied robbing complainant but failed to tell the J
Moshidi J
A police about the alleged robbery by his friend. This was an after thought by accused. Was it a coincident that his version is not far from that of the complainant? The court thus did not believe his story and convicted him as charged.
'AD SENTENCE
B 'This is robbery. A serious offence. A bottle was used to hit a woman on her mouth. She was injured. She was pick pocketed, her cell phone. This aggravated the whole thing. The sentence passed by the court was fair, just and appropriate. It fitted the offence the accused charged with. It is not shocking.'
C [7] In respect of the Mpengesi matter, the trial magistrate furnished the following reasons:
'AD CONVICTION
Accused had just quarrelled and assaulted his girlfriend, who is the daughter D to the complainant. Accused had a child with the girlfriend. The accused went to the complainant's house. The complainant was seated peacefully with his family watching television. Accused came in and took his child at night by force. Complainant reprimanded him. Accused left with the child by force. Complainant followed accused with the intent to take the child from him. Accused then assaulted the E complainant, an old man with a panga. He assaulted him several times. He was injured. He did so even when Seun tried to intervene. This show accused intended to injure the complainant. Accused stopped assaulting only when Seun dispossessed him of the panga. Accused version that he was attacked by the complainant was rejected by court as false. Court believed complainant's version which is supported by F two other witnesses as per evidence before court. He showed no respect for the complainant and in fact he undermined the complainant. The court thus convicted him.
AD SENTENCE
The sentence passed by the court was just, fair and appropriate. It fitted G the offence accused was charged for. It was not shocking.'
[8] There was, surprisingly, no explanation tendered for the absence or omission of the reasons for judgment in the first place. The handwritten notes of the trial magistrate, which accompanied the original charge-sheet and the proceedings, similarly contain no judgment or reasons for H the convictions and sentences imposed. It is therefore not unreasonable to infer that the reasons for judgment supplied later were compiled subsequent to the request of this court. Hence the wording: 'It is not shocking', at the end of the paragraphs dealing with the reasons for sentence in each case.
I [9] The trial in the Molawa matter commenced on 28 August 2009, and was completed on 21 September 2009 after a single postponement inbetween. On the other hand, the trial in the Mpengesi matter commenced on 18 September 2009. On this date the matter became part heard and was postponed to 30 September 2009 for the continuation of J the State's case. The trial was finalised on 30 September 2009.
Moshidi J
[10] Prior to finalising this matter, and as it is customary in this division, A I solicited the comment of the Director of Public Prosecutions, Johannesburg. The comment, which arrived timeously, is extremely helpful, for which I am grateful. It is part of the recommendation of the Director of Public Prosecutions that the convictions and sentences be confirmed. I respectfully agree with this recommendation. The reasons subsequently B furnished by the trial magistrate, although brief, especially in regard to the judgment on sentence, nevertheless enable this court to confirm the convictions and sentences. The proceedings before the trial court, save for the initial neglect to furnish reasons for judgments, which I deal with hereunder, appear otherwise to have been in accordance with justice. C
[11] I deal with the issue of the failure of the trial magistrate to furnish reasons at the time of the respective judgments. The Director of Public Prosecutions agrees that the failure of the trial magistrate to supply full reasons at the time of the judgment, is unacceptable practice. To this end, the second recommendation of the Director of Public Prosecutions is that the matters be referred back to the trial magistrate for him to D furnish comprehensive judgments and full reasons for the convictions and sentences. After careful consideration of the matter, however, I have decided against this recommendation for several practical reasons, one of which is the likelihood of further systemic delays in finalising matters of this nature. I prefer rather to deal with what seems to be a growing E practice of trial magistrates in criminal matters not to furnish reasons for judgment, for whatever reason. This practice frequently occurs...
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