S v Molawa; S v Mpengesi

• Jurisdiction: South Africa
• Judgment Date: 31 May 2010
• Citation: 2011 (1) SACR 350 (GSJ)

S v Molawa;
S v Mpengesi
2011 (1) SACR 350 (GSJ)

2011 (1) SACR p350

Citation	2011 (1) SACR 350 (GSJ)
Case No	234/09 & 235/09
Court	South Gauteng High Court, Johannesburg
Judge	Moshidi J and Pandya AJ
Heard	May 25, 2010
Judgment	May 31, 2010
Counsel	Information not supplied

Flynote : Sleutelwoorde

F Trial — Record — Judgment — Magistrate failing to give reasons for either conviction or sentence — Magistrate having duty to provide full reasons for judgment at conclusion of trial, not only when requested by reviewing judge — Failure to furnish reasons at end of trial severely hampering review function — Reviewing court disadvantaged in applying test as to whether proceedings in accordance with justice — Court also not able to have regard to factual and credibility findings made by trial court.

G Trial — Semble: Although courts and judicial officers and their decisions neither 'organs of state' nor 'administrative action', respectively, under Promotion of Administrative Justice Act 3 of 2000, sensible for courts to adopt rationale for furnishing reasons as prescribed for administrative action under PAJA — Criminal justice system, particularly review process, only H benefiting therefrom.

Headnote : Kopnota

In each of these matters the accused had appeared before the same magistrate on criminal charges — of robbery and of assault with intent to do grievous bodily harm, respectively. After evidence had been led and the prosecutor I and the undefended accused had addressed the court, the magistrate had simply pronounced that they were 'found guilty as charged', before moving on to sentencing proceedings. No reasons for the convictions were given. Furthermore, after hearing evidence in mitigation, sentences of 12 and 6 months' imprisonment, respectively, were imposed, once again with no reasons whatsoever being provided. When the matters came before the High Court on automatic review, the court requested the magistrate to J provide reasons for the convictions and sentences in both matters. Having .

2011 (1) SACR p351

received these, the court was in a position to confirm their correctness, and A to satisfy itself that the proceedings had otherwise been in accordance with justice. However, the court deemed it necessary to deal with the magistrate's failure to provide reasons at the time of delivering his judgments.

Held, that the magistrate's failure to supply full reasons at the time of the judgment was an unacceptable practice. It was clear from s 93ter(3)(e) of the Magistrates' Courts Act 32 of 1944 that a magistrate had a duty to B provide such reasons; and such reasons were to be provided at the conclusion of the trial — not only when they were requested by the reviewing judge. Since a court of review was not bound by the four corners of the record, but could take account of issues not appearing on the record, a magistrate's failure to furnish reasons for judgment at the conclusion of a trial could severely hamper the review function. Without such reasons, the C reviewing court would be disadvantaged in applying the test as to whether the proceedings had been in accordance with justice. Similarly, the court would not be able to have regard to the factual and credibility findings made by the trial court, with all the advantages it would have had during the trial. (Paragraphs [11], [12], [13] and [17] at 355c, 355i, 356e–g and 358b–e.) D

Semble: While courts and judicial officers were not 'organs of state', nor their functions and decisions 'administrative action' under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), it made perfect sense for courts to adopt, unreservedly, the rationale for furnishing reasons as prescribed for administrative action under PAJA. The criminal justice system, and in particular the review process, could only benefit therefrom, and achieve the E ideals of a fair trial as envisaged in s 35(3) of the Constitution of the Republic of South Africa. (Paragraph [20] at 361a–362d.)

Convictions and sentences confirmed.

Annotations:

Cases cited

Reported cases

Southern Africa F

Administrator, Cape, and Another v Ntshwaquela and Others 1990 (1) SA 705 (A): referred to

Botes and Another v Nedbank Ltd 1983 (3) SA 27 (A): referred to G

Mocke v The State [2008] 4 All SA 330 (SCA): referred to

Mphahlele v First National Bank of South Africa Ltd 1999 (2) SA 667 (CC) (1999 (3) BCLR 253): referred to

R v Van der Walt 1952 (4) SA 382 (A): dictum at 383C – D applied

RAF v Maruga [2003] 2 All SA 148 (SCA): referred to

Rex v Majerero and Others 1948 (3) SA 1032 (A): referred to H

S v Bailey 2007 (2) SACR 1 (C): referred to

S v Calitz en 'n Ander 2003 (1) SACR 116 (SCA): dictum in para [12] applied

S v Frazenburg and Others 2004 (1) SACR 182 (E): referred to

S v Immelman 1978 (3) SA 726 (A): referred to

S v Robinson and Others 1968 (1) SA 666 (A): referred to I

S v Van der Berg and Another 2009 (1) SACR 661 (C): dicta at 665h – j applied

S v Zwane 2004 (2) SACR 291 (N): dicta at 294c – g applied

Schoonwinkel v Swart's Trustee 1911 TPD 397: dictum at 401 applied

Strategic Liquor Services v Mvumbi NO and Others 2010 (2) SA 92 (CC) (2009 (10) BCLR 1046): followed. I

2011 (1) SACR p352

England A

R v Civil Service Appeal Board, Ex parte Cunningham [1991] 4 All ER 310 CA: compared.

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, s 35(3): see B Juta's Statutes of South Africa 2009/10 vol 5 at 1-38

The Magistrates' Courts Act 32 of 1944, s 93ter(3)(e): see Juta's Statutes of South Africa 2009/2010 vol 1 at 2-50

The Promotion of Administrative Justice Act 3 of 2000, s 1: see Juta's Statutes of South Africa 2009/10 vol 5 at 1-264 and 1 – 265.

Case Information

C Automatic review. The issues appear from the judgment of Moshidi J, in which Pandya AJ concurred.

Judgment

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

2011 (1) SACR p353

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...