THE
HIGH COURT OF SWAZILAND
MAX
KEVIN CLAYTON
Applicant
Vs
THE
SENIOR MAGISTRATE - HHOHHO DISTRICT (SIC)
1st
Respondent
THE
DIRECTOR OF PUBLIC PROSECUTIONS
2nd
Respondent
Civil
Case No. 2969/2002
Coram J.
P.ANNANDALE - J
For
the Applicant MR. P. SHILUBANE
For
the Respondent NO APPEARANCE
EX
TEMPORE JUDGEMENT ON REVIEW
(25/10/2002)
Under
a Notice of Motion in terms of Rule 53, applicants filed papers of
record in compliance with the provisions of the Rules pertaining to
an order sought on review requiring of the respondents to show cause
why a conviction and sentence should not be set aside, which was
imposed by the 1st respondent in a certain matter, and secondly
calling upon the 1st respondent (the Magistrate) to file the record
of the criminal proceedings herein.
When
this matter was brought before me last week Friday on the uncontested
roll, I expressed certain reservations, the main one being that the
court record which is referred to in Rule 53 (1) (b) was not
dispatched and not filed as is required, in the
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Act
and Rules as well as in the Notice. I therefore ordered that the
Clerk of Court of the Magistrate court, Mbabane be directed to file
the original court record, which has since been done. The Deputy
Director's office was served on the 3rd October, and the Magistrate
was served on the 7th October, the matter was set down for hearing on
18th October, and today being the 25th October it is well past the 14
days period referred to in the Rule. No opposing papers or notices
were filed by either of the two respondents, which both have fourteen
days to do so. I may add that the requirement to file the court
record is not a discretionary one - the Magistrate is required by the
mandatory provisions of the Rules to do so.
Initially,
the papers contained a photocopy of the court record of Case No
L244/02 wherein Max Kevin Clayton was featured as the 1st accused.
The reservations that I expressed considered a number of aspects.
Firstly, the record appeared incomplete ex facie the photocopied
document. A number of aspects appeared to me to be suspect, firstly,
that on the back of the SC 10 coversheet no photocopy of the backside
of it was made and from experience I take cognisance that the
backside or rear side of the SC10 coversheet is frequently used for
keeping of manuscript records, and it became evident to me that it
must have been used for that purpose since none of the preliminaries
running up to the hearing of evidence was recorded on the photocopied
papers. The photocopied record did not set out who was the presiding
officer. Who presided? Who was prosecuting? Who was defending? If it
was applicable, who was the interpreter? In other words, the
constitution of the court was not recorded. I said I know from
experience that frequently such details and initial proceedings are
recorded on the rear side of the SC 10 coversheet. Further omissions
on the photocopied record attached to the notice of motion was that
there was no recording of any explanation pertaining to the procedure
to be followed, legal representation, etcetera. There was also no
recording of who put the charge to the accused person, and what his
plea was. There is also on the photocopied record no indication of
whether the prosecuting counsel accepted the plea or not. The first
entry on the photo copied court record was recorded on the
subordinate court evidence pad and I quote verbatim: "PW1 2142
Detective Sergeant T. Tsabedze DSS" and thereafter evidence is
recorded as: "I am a police officer..." etcetera. That is
all that was recorded on the photocopied papers and which caused me
to call for the original. Further, on the photo copied papers, it
also was clear to me that the record could not be complete
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because
it referred to, at the end of evidence being recorded, concerning
cross-examination rights, and I quote: "see annexure "A".
No such annexure was found on the record. Further, at the end of the
crown's case for the prosecution, the learned Magistrate recorded on
the photocopied papers "see annexure "B", wherein
those rights would have been explained, which was also not attached
to the papers.
The
documents that I refer to, the two annexures which would purportedly
have contained what was said in court regarding the aim and purpose
of cross-examination as well as the rights of the (undefended)
accused person after the crown's case was closed, if Section 174 of
the Act did not apply, were not attached to the copied record of
proceedings filed with the application for review.
Further
also, conspicuous for its absence, was that after judgement was
given, no rights whatsoever were explained, according to the record,
concerning the rights of the accused person following conviction. It
would have had to pertain to evidence, calling of witnesses,
addressing the court sworn or unsworn etcetera. None of that was
done. Incidentally, it was also not recorded that the prosecutor had
any opportunity to address the court on sentence. Thereafter,
sentence was imposed, following a conviction under Section 7 read
with Section 8 (1) of the Opium and Habit- forming Drugs Act, 1922
(Act 37 of 1922), - possession of a habit-forming drug. The charge
itself referred to a "herbal" (sic) forming drug, not a
"habit"-forming forming drug. That serious flaw in the
formulation of the charge is not the subject of this review.
On
eventually receiving the original court record filed by the Clerk of
Court, which incidentally had to be effected by this Court
Interpreter, Mr. Magagula who had to go down to the Magistrate court
and physically collect it.
The
photocopy initially used in the application is an exact replica of
the original complete court record, save for the fact that the back
or reverse side of the SC 10 coversheet was not also copied. None of
the annexures mentioned were included and none of the other serious
omissions are anywhere to be seen on the original record. None of the
shortcomings that I mentioned concerning the copied record were
rectified when the original record was at hand. Thus, there was no
explanation of the
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rights
to legal representation to the accused persons, there was no
explanation as to the rights of cross-examination after crown's case,
or of the rights in mitigation, etcetera. That is apart from the
defect in the formulation of the charge itself.
The
applicant in his founding affidavit states a number of reasons why he
was dissatisfied with the court proceedings. I noticed that on six
occasions, he states on oath that he wanted to be represented by an
attorney. He mentioned the name of the attorney to the police and in
court, but on six occasions, even though it was never explained to
him that he has such a right, he was denied the right of legal
representation, and that is one aspect this court certainly will not
condone. Apart from that, he mentions a number of disturbing
difficulties encountered during this trial. Some of it I have already
alluded to, concerning the defective record. There is also on the
court record no indication whatsoever as to which of the two accused
persons were convicted or sentenced, whether it was the first or the
second accused, the second accused being Londiwe Marie Clayton, a
young girl of thirteen years. Apparently, from the applicant's own
affidavit she is his daughter, but on record there is no indication
whatsoever whether charges against her were proceeded with or not or
which of the two accused were convicted. A disturbingly large number
of defects and inadequences abound in the court record. If each of
the mentioned aspects in itself is not sufficient to overturn the
proceedings, their combined presence certainly does justify it. The
proceedings as they stand cannot be said to be in compliance with
substantial justice.
The
Magistrate's Court being a creature of statute and a court of record,
I can make no other finding whatsoever on special review under Rule
53, than to hereby order that the proceedings under review, the
judgement and sentence imposed by the Magistrate of Mbabane, region
of Hhohho in Criminal Case L244/02 in re: Rex vs Max Kevin Clayton be
hereby ordered to be set aside. No costs order is made, as per prayer
(c) of the application, as neither of the respondents opposed the
application.
J.
P. ANNANDALE
JUDGE
4
NIKE 