S v Titus

• Jurisdiction: South Africa
• Judge: Rogers J
• Judgment Date: 10 February 2014
• Docket Number: C1658/2012
• Court: Western Cape High Court, Cape Town
• Hearing Date: 13 January 2014
• Citation: 2014 JDR 0226 (WCC)

Rogers J:

[1]

This matter comes before the court by way of automatic review. The accused was convicted on 20 August 2013 of possession of 42 packets of tik (methamphetamine) which, according to the laboratory report, weighed 4,03 grams in total. On 23 August 2013 he was sentenced to 12 months' imprisonment.

[2]

The record having been received at the High Court on 6 September 2013, on 11 September 2013 I directed a query to the magistrate regarding the conviction and the sentence. The query regarding sentence related to an apparently missing part of the record.

[3]

After repeated contact between this court and the magistrate's court, the review record was returned with the magistrate's response on 6 February 2014, nearly five months after my query. This is unacceptable. The procedure for automatic review is aimed at protecting unrepresented persons against injustice. The fact that the reviewing judge has raised queries indicates that the case is one in which the accused person's conviction or sentence may not have been in accordance with justice, and a prompt response is thus called for. In the present case, and by virtue of the delay, the accused has almost certainly served his minimum time and been released on parole.

[4]

My queries to the magistrate were expressed as follows:

'[1]

In regard to the conviction, the State called only one witness, Constable Horn. He claims to have seen the accused in the company of another person and that the accused threw a plastic packet over the fence which was subsequently found to contain the tik. The accused's version was that he was walking with three other friends, that he did not throw any bag over the fence and knew nothing of the tik.

[2]

The prosecution thus relied on the evidence of a single witness, which required caution. It ought to have been possible for the prosecution to call the colleague with whom Horn was travelling in the police van, Constable Pietersen. The judgment on conviction (record 29-32) does not specifically mention the need for caution. The accused's failure to call an additional defence witness he initially intended to call was mentioned in the judgment but the prosecution's failure to call Pietersen was not mentioned. There also does not appear to be an analysis of why the accused's version could not reasonably possibly have been true, with reference to demeanour and other matters bearing on credibility. They were at least

2014 JDR 0226 p3

Rogers J:

theoretically other possibilities (such as that the packet was thrown over the fence by one of the other persons in the street or that the drug evidence was 'planted' because the accused was believed by the police to be a drug dealer [record 8]). Your comment is invited.

[3]

I notice in passing that the charge sheet states that the offence was committed on 23 October 2012. The magistrate's judgment says 27 October 2012. The correct date appears to have been 23 October 2011 (which is how Constable Horn's evidence was led and which ties in with the laboratory report).

[4]

As to sentence, the portion of the record at page 34 omits the submissions made on behalf of the accused and the prosecution. Presumably the accused either gave evidence or made ex parte statements. Since the proceedings were mechanically recorded it ought to be possible to supplement the record. Kindly do so.'

[5]

The magistrate's belated reply was the following:

'[1]

The state called only one witness and I was of the view that he covered all the evidence. The witness categorically stated that the accused was...