12 December 2022
A magistrate has got it so wrong that a High Court judge has said: “Mistakes such as this have a potential to bring the judiciary into disrepute.” Illustration: Lisa Nelson
A “bizarre” case in which a maintenance defaulter was found guilty and sentenced when charges were never put to him and he never pleaded has highlighted an embarrassing lack of training of magistrates in maintenance and family courts.
“Mistakes such as this have a potential to bring the judiciary into disrepute and can cause grave injustice to members of the public with serious repercussions to judicial officers,” Judge Takalani Ratshibvumo, with acting Judge Denise Greyling-Coetzer concurring, said in a review judgment in the Mbombela High Court.
Judge Ratshibvumo set aside the conviction and sentencing of Samora Mashaba by an unnamed magistrate at the Nkomazi District Court in July this year.
He directed that the judgment be sent to the Chief Magistrate in the province “so that she is able to identify areas of need when it comes to training judicial officers, not limited to the one who presided over this case”.
The matter came before the judges as a special review, referred by the magistrate herself.
“It is not clear as to what caused this, whether her hand was forced by others. She however concedes that the proceedings were not in accordance with the law in that an accused had been convicted through merely admitting elements of the crime without the state putting a charge and without giving him a chance to plead,” Judge Ratshibvumo said.
“How this came about would be difficult to explain as there is not even a proper record of proceedings … The presiding magistrate noted that the court recording machine was not operational that day. The file content is referred to by the magistrate as a record reconstructed from notes.
“What can be gleaned from this reconstructed record is that Mashaba was summoned to appear in court on that day to face a charge of contravening the Maintenance Act.”
The judge wrote that before Mashaba’s matter was called, Mashaba had approached the public prosecutor and made arrangements to pay off his maintenance arrears of R6,000 in two installments, the first on that day.
The prosecutor was happy and when the case was called, the prosecutor informed the court of the arrangement and asked for a postponement.
“During this process, things took an about turn when, out of nowhere, the accused suddenly heard the court pronounce that he was guilty as charged and he was called upon to address it in mitigation of sentence,” the judge said.
“The court then decided to convert the proceedings into an inquiry in terms of the Act. For some unexplained reason, the accused was then still sentenced.”
The sentence, as reflected in the record, was that Mashaba had to pay a fine of R6,000, or be imprisoned for six months. The sentence then read that the “arrears” had been deferred and stipulated when he must pay what he owed in two installments.
Judge Ratshibvumo said, “After reading this several times, I still struggle to understand the sentence … It is not clear as to whether the order to pay the arrears amount is over and above the fine.”
He questioned how the clerk of the court would have interpreted this.
The judge said a trial not preceded by a charge being put and the accused pleading was a “mistrial, a gross irregularity and a misdirection on the part of the presiding officer”.
The magistrate had not only failed to promote judicial independence but she had also failed to protect Mashaba’s constitutional rights.
“She could have simply refused a request for postponement if that did not appeal to her. This would have afforded the state the opportunity to choose between withdrawing the charges or commencing with the trial through putting the charges to the accused.”
He said it was a grave concern that she had passed sentence after converting the trial into an inquiry.
“This is one of the cases that expose the need for continuous peer training on the part of the judiciary.
“It is incumbent on members of the judiciary to always remember the oath of office we took, in which we swore to protect every citizen’s rights enshrined in the Constitution and apply justice to all without fear, favour and prejudice.
“It also signifies the need to have well-trained and experienced magistrates in family and maintenance courts. For too long these courts have been neglected alongside the traffic courts, as courts where only the inexperienced magistrates would be allocated.”
He said unless this trend changed, the embarrassment which flowed would continue.
He ordered that the conviction and sentence be set aside and directed that the judgment be sent to the Chief Magistrate, Mpumalanga.