Mwangi Githahu, Cape Argus
Two petty drug convictions in the Cape have been set aside by senior judges who have rebuked an unnamed magistrate for his rulings which they found had failed to ascertain basic factual evidence.
This report from the Cape Argus, 24 July 2023
Cape Town - Two Western Cape High Court judges have expressed concern over the repeated neglect of magistrates from the Cape Town Magistrate’s Court to ensure accused people fully understand the meaning and the effects of their admissions.
Judges James Lekhuleni and Constance Nziweni were making a ruling after jointly reviewing the cases of Mthunzi Ndzishe and William Fisher, charged separately but tried by the same magistrate for possession of drugs.
They ordered the convictions and sentences of the two accused in respect of both proceeding be set aside and that the magistrate retry the cases.
In their judgment, they said: “Significantly, we find it very concerning that despite previous cases from this division addressing this issue, magistrates, in particular from Cape Town Magistrate’s Court, continues to neglect this".
In the Ndzishe case, it was alleged that he had been found in possession of nine mandrax tablets, three packets of tik and one tik lolly on Strand Street, Cape Town on December 24.
In the Fisher matter, the State alleged that on May 17, he had in his possession 22 packets of cocaine; eight packets of dagga and half a tablet of mandrax when he was arrested on Aspeling Street, also in Cape Town.
In both cases, the charges were put to the accused, and they pleaded guilty. The court then invoked the provisions of Section 112(1) (b) of the Criminal Prosecution Act (CPA).
The section deals with pleading guilty at summary trial and the circumstances which demand the matter to be heard before the court.
After questioning the accused in terms of the section, the magistrate returned a guilty verdict. The accused were subsequently found guilty on the strength of their guilty pleas.
The judges said they got the distinct impression that the court did not, upon questioning both accused, establish whether there was a factual basis for the technical admissions made by the accused.
Consequently, they said the sufficiency of the evidence to uphold the guilty verdicts was immediately called into question.
In their review of the cases, the judges said it was clear that the affidavit (forensic report) in terms of the CPA, meant to establish the identity of the substances, was not considered during the plea proceedings.
They said it became quite discernible from the record that the questioning by the magistrate did not delve into the accused’s knowledge and understanding of the technicalities or the scientific essential elements of the crimes they were facing.
The judges said the admissions made by the accused contained “merely the bare-bones of what is required to be proven by the prosecution”.
“Although the issue in these matters did not really involve a forensic report, we still find it necessary to mention that if the forensic reports were admitted, they would have left no room for doubt that the various substances found in the possession of the accused were, as the prosecution claimed, undesirable dependence-producing substances.”