SUMMARY
Review proceedings were launched in the Gauteng Local Division, Johannesburg, before Acting Judge Phahlane, based on a number of procedural irregularities which occurred during a criminal trial, which subsequently resulted in a conviction and the imposition of a prison sentence.
On 1 November 2017, in the Oberholzer Magistrate’s Court, Thuso Nyembezi (“the accused”) was, without legal representation and on a plea of guilty, convicted of possession and/or the use of an undesirable dependence-producing substance, in contravention of section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992. As a result thereof, the accused was sentenced to 1 (one) year imprisonment, with same to be served following the completion of a prior prison sentence of 3 (Three) years for theft. The basis of the sentence stemmed from an allegation that the accused was found in possession of a syringe containing traces of heroin.
The plea of guilty, in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977 (“the Act”), was assessed by the enquiries made by the Presiding Magistrate, which were limited to:
1. whether the accused wanted to conduct his own defence;
2. whether the accused understood the charges put to him;
3. whether there was heroin in the syringe;
4. whether the accused knew that it was unlawful to possess heroin; and
5. whether the accused was in possession of heroin because he was desirous of smoking it.
Review proceedings were launched in the Gauteng Local Division, Johannesburg, before Acting Judge Phahlane, based on a number of procedural irregularities which occurred during a criminal trial, which subsequently resulted in a conviction and the imposition of a prison sentence.
On 1 November 2017, in the Oberholzer Magistrate’s Court, Thuso Nyembezi (“the accused”) was, without legal representation and on a plea of guilty, convicted of possession and/or the use of an undesirable dependence-producing substance, in contravention of section 4(b) of the Drugs and Drug Trafficking Act 140 of 1992. As a result thereof, the accused was sentenced to 1 (one) year imprisonment, with same to be served following the completion of a prior prison sentence of 3 (Three) years for theft. The basis of the sentence stemmed from an allegation that the accused was found in possession of a syringe containing traces of heroin.
The plea of guilty, in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977 (“the Act”), was assessed by the enquiries made by the Presiding Magistrate, which were limited to:
1. whether the accused wanted to conduct his own defence;
2. whether the accused understood the charges put to him;
3. whether there was heroin in the syringe;
4. whether the accused knew that it was unlawful to possess heroin; and
5. whether the accused was in possession of heroin because he was desirous of smoking it.
The main issue on review was that, in terms of section 112(1)(b) of the Act, no proper inquiry was made by the presiding officer in confirming that the accused pleaded guilty to all the elements of the charge put to him.
Section 112(1)(b) of the Act states that:
“the presiding judge, regional magistrate or magistrate shall, if he or she is of the opinion that the offence merits punishment of imprisonment or any other form of detention without the option of a fine or of a fine exceeding the amount determined by the Minister from time to time by notice in the Gazette, or if requested thereto by the prosecutor, question the accused with reference to the alleged facts of the case in order to ascertain whether he or she admits the allegations in the charge to which he or she has pleaded guilty, and may, if satisfied that the accused is guilty of the offence to which he or she has pleaded guilty, convict the accused on his or her plea of guilty of that offence and impose any competent sentence.”
Only 4 (Four) months after the Acting Judge considered the papers, record of proceedings in the Court a quo and raised queries with the Presiding Magistrate, were responses and/or reasons provided.
The Presiding Magistrate, in responding and/or providing reasons which formed the basis of the review judgment, had:
1. agreed with the Acting Judge in noting that there was no proof that the substance found in the syringe was taken to a forensic laboratory to determine the presence of heroin;
2. stated that the accused had been informed of his Constitutional rights to be presumed innocent, to remain silent, not to testify during trial, and not to be compelled to give self-incriminating evidence, as early as his first appearance, when asked whether his rights had been explained to him. The Presiding Magistrate stated that same had been conveyed to the accused by virtue of it being contained in a plea explanation and that the accused elected, on two separate occasions, to conduct his own defense;
3. acknowledged that he erred in applying incorrect legislation, to wit, section 102 of the Act, which deals with a charge relating to insolvency;
4. acknowledged that he erred in failing to obtain proof regarding the quantity and verification of the substance contained in the syringe;
5. acknowledged that the element of intention was not proven using the answers given by the accused during the trial, and that he had erroneously relied upon a statement made by the accused whereby he indicated that he wanted to smoke heroin and, therefore, (in the Magistrate’s mind) displayed the necessary intention to possess heroin; and
6. acknowledged that he failed to provide sufficient reasons regarding the imposition of a one year prison sentence, and that it was further unnecessary that same was to be served after the completion of the accused’s three year sentence.
HELD
The Acting Judge, in consideration of the record and the responses and/or reasons provided by the Presiding Magistrate, held that there was no proper inquiry held in terms of section 112(1)(b) of the Act, if at all.
The Acting Judge held that the Presiding Magistrate failed to explain the accused’s rights not to incriminate himself, to remain silent and to have legal representation.
It was held further that the accused was not afforded a fair trial, nor was it in the interests of justice to convict and sentence him in a situation where the State’s evidentiary burden had not been satisfied beyond reasonable doubt.
Finally, it was ordered that the proceedings in the Court a quo be set aside, together with the conviction and sentence.
VALUE
In criminal proceedings, presiding officers ought to act in a procedurally correct manner which promotes the interests of justice, failing which; review proceedings may be required to achieve the same end.
Written by Jasvir Sewnarain and supervised by Jarryd Spargo, 18 May 2018
