Sayed and Another v Levitt NO and Another

• Jurisdiction: South Africa
• Judge: Steyn J and Nkosi J
• Judgment Date: 25 June 2012
• Citation: 2012 (2) SACR 294 (KZP)
• Docket Number: AR 101/11; 5582/10 [2012] ZAKZPHC 38
• Hearing Date: 31 May 2012
• Counsel: P Hemraj SC (with K Bheemchund) for the applicants. Mr Khuzwayo for the second respondent.
• Court: KwaZulu-Natal High Court, Pietermaritzburg

Steyn J (Nkosi J concurring): A

[1] This is a criminal matter which is part heard and at an advanced stage of the proceedings, since the applicants have been convicted on various counts of the Prevention of Organised Crime Act, [1] the Sexual Offences Act [2] and the Immigration Act. [3] It has been found that they B managed an enterprise through a pattern of racketeering activities that relate to foreign females being used as prostitutes, and that the applicants were living off the earnings of prostitution. [4] This court is satisfied that the matter is properly before it and that this court should exercise its review powers which include its inherent jurisdiction. [5]

C [2] As a general rule, the review of unterminated criminal proceedings is a power which is sparingly exercised and only in exceptional circumstances. [6] The rationale for such an approach is obvious since the remedy against a wrong decision is to appeal after the case has been concluded. Steyn CJ in Ismail and Others v Additional Magistrate, Wynberg, and Another, D infra, has emphasised that courts will exercise such exceptional review powers in limited circumstances:

'As to the second ground I should point out that it is not every failure of justice which would amount to a gross irregularity justifying interference before conviction. As was pointed out in E Walhaus and Others v Additional Magistrate, Johannesburg and Another, 1959 (3) SA 113 (AD) at p. 119, where the error relied upon is no more than a wrong decision, the practical effect of allowing an interlocutory remedial procedure would be to bring the magistrate's decision under appeal at a stage when no appeal lies. Although there is no sharply defined distinction between illegalities which will be restrained by review before conviction F on the ground of gross irregularity, on the one hand, and irregularities or errors which are to be dealt with on appeal after conviction, on the other hand, the distinction is a real one and should be maintained. A Superior Court should be slow to intervene in unterminated proceedings in a court below, and should, generally speaking, confine the exercise of its powers to rare cases where grave injustice might otherwise result or where justice might not by other means be attained (Wahlhaus's case, supra at p. 120.)' G [7] [Emphasis added.]

Steyn J (Nkosi J concurring)

It is trite that an applicant who wants to succeed with a review of A unterminated proceedings should make out a case that he/she would suffer irreparable prejudice if the trial is allowed to proceed to conclusion. [8] In addition to the aforesaid, an applicant should show that a complaint falls within one of the grounds of review as stipulated in s 24 of the Supreme Court Act. [9] Section 24 of the Act provides for the B following grounds:

'(a)

absence of jurisdiction on the part of the court;

(b)

interest in the cause, bias, malice or the commission of the offence of corruption on the part of the presiding judicial officer;

(c)

gross irregularity in the proceedings; and C

(d)

the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.'

[3] In the present matter the applicants, in the main, rely on the following irregularities, [10] which they consider to be so gross that the proceedings fall to be reviewed and set aside: D

(i)

An ad hoc interpreter was used who had not been sworn, nor was any enquiry conducted into the interpreter's competency and ability to interpret from Thai into English;

(ii)

The record reflects that the interpreter, was not fluent in English, and at times the court could not understand what was said, in addition to the aforesaid the record reflects that it was equally E difficult to understand what was said by the interpreter;

(iii)

The ad hoc Thai interpreter was used by the state counsel, the second respondent, to consult with the state witnesses who testified at the trial;

(iv)

The first respondent had difficulty in communicating with the F interpreter in court, even in an instance as simple as administering the oath; and

(v)

The aforesaid irregularities impacted adversely on the fair-trial rights of the applicants.

Ms Hemraj, assisted by Ms Bheemchund, strongly argued that the G irregularities complained of tainted the entire proceedings before the court and that the convictions ought to be set aside as grossly irregular. Ms Hemraj has comprehensively listed extracts from the record in her heads of argument, which show that the court ought to have been alarmed by the quality of the translations by the interpreter, but failed to question her competency, even though the interpreter at times asked that H the matter be simplified. It was argued that interpreters are duty-bound

Steyn J (Nkosi J concurring)

A to accurately translate what is said by each witness, and not just convey the import of the evidence, as is claimed by the first respondent.

Mr Khuzwayo, who acted on behalf of the second respondent, submitted that the court ought to view the applicants' belated objection with extreme caution, as it is conveniently raised in view of their convictions. B He placed reliance on the fact that the first respondent and the second respondent are highly experienced officers of court and have no reason to lie. Mr Khuzwayo was, however, at pains to direct us to any part of the record that shows that the learned magistrate had sworn the casual interpreter or conducted an enquiry into her competency. He was C referred to the appearances as per the charge-sheet, which indicated that, on 2 October 2008, 11 December 2008, 12 December 2008 and 12 January 2009, Mr P Twala acted as the interpreter. The Thai interpreter's name appears on the record for the first time on 7 August 2008 and thereafter on 3 January 2009. Whilst it is most likely that the casual interpreter would have been sworn on these dates, no swearing D was conducted on the said dates. Mr Khuzwayo elected to use lines 18 – 20, at p 130, where it is recorded as follows:

'Court: The interpreter has taken an oath to interpret to the best of her ability?

Mr Zwane: Yes.'

E He concluded by submitting that it would not be in the interest of justice to order that the trial should start de novo since the witnesses have gone back to their country of origin.

Legal framework

F [4] Section 6(2) of the Magistrates' Courts Act [11] places a duty on the presiding officer to call a competent interpreter to translate evidence into a language that is understood by the accused. [12] The section should be read together with the provisions of the Constitution of the Republic of South Africa, 1996, more specifically s 35(3) which reads as follows:

G 'Every accused person has a right to a fair trial, which includes the right —

(a)

to be informed of the charge with sufficient detail to answer it;

. . .

(b)

to adduce and challenge evidence;

H . . .

Steyn J (Nkosi J concurring)

(k)

to be tried in a language that the accused person understands or, if A that is not practicable, to have the proceedings interpreted in that language . . . .'

In terms of s 35(4) of the Constitution the rights referred to above should be made clear to an accused person in a language that he/she understands. Inasmuch as it is of fundamental importance to receive B legal representation it is important to understand and follow the evidence, because without such understanding the right to a fair trial would be meaningless and non-existent. Furthermore if an accused, in an adversarial system, cannot understand the language used, then his/her participation in the trial would be compromised. C

The magistrates' courts rules in addition provide for an oath or affirmation to be taken by an interpreter upon entrance into office. The rules, however, distinguish between ad hoc interpreters and interpreters permanently employed by the department. Subrule 68(3), read with 68(4) and 68(5), provide for the oath to be administered to a casual interpreter. D

[5] It is common cause that at the time when the matter was heard in the regional court in Durban, Ms Buttemer, a Thai citizen, was used as an ad hoc interpreter during the trial proceedings. Accordingly, the provisions of rule 68 of the Magistrates' Courts Act should have found application, E read with s 6 of the Magistrates' Courts Act, and read with the constitutional rights as provided for in the Constitution. This means that an oath or affirmation should be taken before a presiding officer and be administered in the prescribed manner and recorded in the record, provided that the court, using the services of the casual interpreter, is satisfied that the interpreter is...