Sayed and Another v Levitt NO and Another

• Jurisdiction: South Africa
• Citation: 2012 (2) SACR 294 (KZP)

Sayed and Another v Levitt NO and Another
2012 (2) SACR 294 (KZP)

2012 (2) SACR p294

Citation	2012 (2) SACR 294 (KZP)
Case No	AR 101/11; 5582/10; [2012] ZAKZPHC 38
Court	KwaZulu-Natal High Court, Pietermaritzburg
Judge	Steyn J and Nkosi J
Heard	May 31, 2012
Judgment	June 25, 2012
Counsel	P Hemraj SC (with K Bheemchund) for the applicants.; Mr Khuzwayo for the second respondent.

Flynote : Sleutelwoorde

Trial — Interpreter — Interpreter not sworn in and magistrate failed to conduct inquiry into interpreter's proficiency — Record indicating that interpreter G uncertain of what she needed to interpret — Advisable that interpreter understand legal process.

Headnote : Kopnota

The applicants were in the process of standing trial in a regional magistrates' court on a number of serious charges. They had already been convicted H when they brought the present proceedings to set aside the conviction, on the ground that the court had committed serious irregularities relating to the use of an interpreter. It was contended, that an ad hoc interpreter was used who had not been sworn in, nor had any enquiry been conducted into her ability to interpret from Thai into English. The presiding officer deposed to an affidavit in which he stated that he would not have commenced the trial without ensuring that the interpreter was properly I sworn in.

Held, that, without a positive statement by the magistrate that he had in fact sworn in the interpreter or conducted an inquiry into her proficiency, and as the record was silent on the matter, the applicants' contentions had to be accepted. The record furthermore indicated that there were numerous J instances where the interpreter could not immediately understand what she

2012 (2) SACR p295

was required to interpret. It could not be said that she had sufficiently A conveyed the import of what was required to be interpreted. (Paragraph [13] at 303b.)

Held, further, that the case demonstrated that it was not merely sufficient to be bilingual or fluent in a language, but that an interpreter should also have a basic understanding of the legal process. (Paragraph [14] at 304g.) B

Held, further, that the irregularities complained of were real and not speculative or premature, and could not be cured. The proceedings had to be set aside. (Paragraph [17] at 305d.)

Cases cited

Ismail and Others v Additional Magistrate, Wynberg and Another 1963 (1) SA 1 (A): applied C

Key v Attorney General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788): applied

Levack and Others v Regional Magistrate, Wynberg, and Another 1999 (2) SACR 151 (C) (1999 (4) SA 747; [1999] 3 All SA 374): dictum at 754 D applied

McIntyre en Andere v Pietersen en 'n Ander 1998 (1) BCLR 18 (T): dicta at 20F – G applied

Moodley and Others v National Director of Public Prosecutions and Others 2008 (1) SACR 560 (N): applied

Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another E 1979 (2) SA 457 (W): applied

R v Mabaso 1952 (3) SA 521 (A): applied

S v B 2003 (1) SACR 52 (SCA) (2003 (1) SA 552; [2002] 4 All SA 451): compared

S v Booi and Another 2005 (1) SACR 599 (B): dicta in para [25] compared

S v Lin [2010] 1 All SA 358 (W): referred to F

S v Mponda 2007 (2) SACR 245 (C) ([2004] 4 All SA 229): dicta in para [34] applied

S v Naidoo 1962 (2) SA 625 (A): dictum at 632G applied

S v Saidi 2007 (2) SACR 637 (C): dicta at 644g – h applied

S v Sikhipha 2006 (2) SACR 439 (SCA): compared G

S v Siyotula 2003 (1) SACR 154 (E): referred to

S v Swartz 2009 (1) SACR 452 (C): dicta in para [15] compared

S v T 1973 (3) SA 794 (A): dicta at 796G – H compared

S v The Attorney-General of the Western Cape; S v The Regional Magistrate, Wynberg and Another 1999 (2) SACR 13 (C): compared

S v Vumazonke 2000 (1) SACR 619 (C): compared H

Walhaus and Others v Additional Magistrate, Johannesburg and Another 1959 (3) SA 113 (A): applied.

Case Information

Application for review of unterminated criminal proceedings. The facts appear from the reasons for judgment.

P Hemraj SC (with K Bheemchund) for the applicants. I

Mr Khuzwayo for the second respondent.

Cur adv vult.

Postea (June 25). J

2012 (2) SACR p296

Judgment

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.]

2012 (2) SACR p297

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

2012 (2) SACR p298

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...