Concern over the persistent failure of magistrates from the Cape Town Magistrates’ Court to make sure accused people fully understand the meaning and consequences of their admissions has been voiced by two Western Cape High Court judges.
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Judges James Lekhuleni and Constance Nziweni were making a decision following a joint review of the cases of Mthunzi Ndzishe and William Fisher, who were both charged with drug possession but were tried by the same magistrate.
They mandated that the magistrate retry the cases and that the two accused have their convictions and sentences for both proceedings overturned.
‘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, continue to neglect this aspect of the law,’ they said in their judgement.
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 24 December.
In the Fisher case, the State claimed that on 17 May, when Fisher was arrested on Aspeling Street, also in Cape Town, he was in possession of 22 packets of cocaine, 8 packets of dagga, and a half-tablet of mandrax.
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In both instances, the accused were informed of the charges, and they entered guilty pleas. The Criminal Prosecution Act’s (CPA) Section 112(1) (b) provisions were then invoked by the court.
The section covers entering a plea of guilty at a summary trial as well as the circumstances that require the case to be heard in court.
The magistrate rendered a guilty verdict after questioning the defendant in accordance with the section. The accused were subsequently found guilty on the strength of their guilty pleas.
The judges claimed that upon questioning both accused, they had the clear impression that the court had not determined whether the technical admissions made by the accused had any factual support.
They claimed that, as a result, the veracity of the evidence supporting the guilty verdicts was immediately questioned.
The affidavit (forensic report) required by the CPA, which was intended to establish the identity of the substances, was clearly overlooked during the plea negotiations, according to the judges who reviewed the cases.
They claimed that it was clear from the record that the magistrate’s questioning of the accused did not probe into his or her knowledge of the technicalities or the scientific fundamentals of the crimes they were facing.
According to the judges, the accused’s admissions only covered the ‘bare minimum of what the prosecution must prove.’
‘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.’
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