S v Ramatar

• Jurisdiction: South Africa
• Judgment Date: 30 May 2018
• Citation: 2018 (2) SACR 414 (WCC)

S v Ramatar
2018 (2) SACR 414 (WCC)

2018 (2) SACR p414

Citation	2018 (2) SACR 414 (WCC)
Case No	171201/17
Court	Western Cape Division, Cape Town
Judge	Henney J and Sher J
Heard	May 30, 2018
Judgment	May 30, 2018
Counsel	Counsel details not supplied

Flynote : Sleutelwoorde

Trial B — Irregularity in — What constitutes — Magistrate eliciting information on accused's previous convictions before taking plea in terms of s 112(1)(b) of Criminal Procedure Act 51 of 1977 — Material irregularity — Conviction and sentence set aside.

Headnote : Kopnota

The C accused came before a regional magistrate on a charge of theft of razor blades to the value of R850. It appeared from the record of the plea proceedings that at the inception of the proceedings, immediately after the accused had indicated that he wished to plead guilty, the magistrate asked the prosecutor whether the accused had previous convictions. The prosecutor informed her that there was one previous conviction. Apparently not D satisfied with this response, the magistrate then asked the accused whether he had only one previous conviction, to which he replied that he had more, whereupon the magistrate proceeded to take his guilty plea and convict him.

When the matter came on review the court requested the magistrate to provide reasons for her conduct and to comment on whether the proceedings E should not be set aside on the grounds of a failure of justice due to a material irregularity, in that she had sought to elicit information on the accused's criminal record prior to conviction. The magistrate responded that, given the accused's insistence on pleading guilty to the charge of theft of goods which had a relatively minor value, the court had actually wanted to know if the matter could be diverted. She should have asked if the F accused qualified for diversion, but the prosecutor had inadvertently divulged one of the accused's previous convictions.

The court held that the magistrate's questions were irregular as they were not directed at satisfying the requirements of s 112(1)(b) of the Criminal Procedure Act 51 of 1977, and had nothing to do with either the facts relevant to the underlying allegations in the charge-sheet or the accused's state of mind and knowledge of unlawfulness in relation to the charge. G The magistrate's explanation for what occurred was disingenuous. If she had thought that this was potentially a matter for diversion then she could, and should, simply have enquired whether this was so from the prosecutor, but had instead directed questions to the prosecutor and the accused in which she had sought directly to elicit his criminal record, even before H taking his plea. It was highly disconcerting that, when faced with the transcript of what actually occurred, instead of owning up to her improper conduct, the magistrate had sought not only to provide an explanation which was untenable and not borne out by the transcript, but sought to place the blame on the prosecutor. (See [14].) The conviction and sentence were set aside, and a copy of the judgment forwarded to the Magistrates' Commission, the regional court president, and the Director of Public I Prosecutions.

Cases cited

Mulaudzi v Old Mutual Life Assurance Co (SA) Ltd and Others 2017 (6) SA 90 (SCA): referred to

S v Aspeling 1998 (1) SACR 561 (C): referred to

S v Baron J 1978 (2) SA 510 (C): referred to

2018 (2) SACR p415

S v Dzukuda and Others; S v Tshilo 2000 (2) SACR 443 (CC) (2000 (4) SA 1078; A 2000 (11) BCLR 1252; [2000] ZACC 16): referred to

S v Le Grange and Others 2009 (1) SACR 125 (SCA) (2009 (2) SA 434; [2010] 1 All SA 238; 2010 (6) BCLR 547; [2008] ZASCA 102): referred to

S v Maseko 1990 (1) SACR 107 (A): referred to

S v Mlimo 2008 (2) SACR 48 (SCA): referred to B

S v Naidoo 1962 (4) SA 348 (A): referred to

S v Nyanga 2004 (1) SACR 198 (C): referred to

S v Rall 1982 (1) SA 828 (A): referred to

S v Roberts 1999 (2) SACR 243 (SCA) (1999 (4) SA 915; [1999] 4 All SA 285): referred to

S v Samuels 2016 (2) SACR 298 (WCC): dicta in para [21] referred to C

S v Tyebela 1989 (2) SA 22 (A): referred to

S v Williams 2008 (1) SACR 65 (C): referred to

South African Commercial Catering and Allied Workers Union and Others v Irvin & Johnson Ltd (Seafoods Division Fish Processing) 2000 (3) SA 705 (CC) (2000 (8) BCLR 886; [2000] ZACC 10): referred to. D

Legislation cited

Statutes

The Criminal Procedure Act 51 of 1977, s 112(1)(b): see Juta's Statutes of South Africa 2016/17 vol 1 at 2-354.

Case Information

Review.

Order E

1.

The conviction and sentence imposed in the matter before the regional magistrate of George under case No R 140/17 are set aside.

2.

A copy of this judgment is to be sent, together with a copy of the record in the matter under case No R 140/17, to the Director of Public Prosecutions, Western Cape, as well as the Magistrates' F Commission and the regional court president.

Judgment

Sher J (Henney J concurring):

[1] This matter is before us on automatic review. The accused pleaded G guilty before the regional magistrate of George to a charge of theft of razor blades to the value of about R850. Although he was only 28 years old at the time, he had a number of previous convictions, including four for theft and four for robbery, for which he had been sentenced to varying terms of imprisonment. The offence in question was committed only a few months after he had been released after serving a sentence of three years for robbery. H

[2] Because of his long list of previous convictions the magistrate was of the view that a further custodial sentence was unavoidable, and she accordingly sentenced the accused to 24 months' imprisonment. But as he had a long-standing drug problem which required treatment the I magistrate ordered that the sentence should be served in terms of the provisions of s 276(1)(i) of the Criminal Procedure Act, [1] which would allow the Commissioner of Correctional Services to discharge him once

2018 (2) SACR p416

Sher J (Henney J concurring)

he A was satisfied that he had complied with the relevant treatment programmes which he would be required to...