Judges see red at drug sentence

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Two Western Cape High Court judges this week overturned a city man’s drug possession conviction, slamming the Goodwood magistrate who put him behind bars and charging that there were serious flaws in her handling of the trial.

But the man had already served six months of his 12-month sentence.

It has also emerged that the same magistrate took almost five months - rather than the required seven days - to respond to official queries by the High Court judges in a review of the case, by which time the convicted man was already eligible for parole.

Now the Judicial Officers Association of South Africa (Joasa) has stepped in, saying the senior magistrate in Goodwood should be taken to task for apparently failing to follow simple court procedures.

These included that:

l The prosecution called a single witness when there was the possibility of calling a second witness.

l The State failed to bring evidence in corroboration.

l The magistrate’s judgment did not indicate that the evidence of the single State witness was viewed with caution, even though this should have been the case.

l There seemed to be no evaluation of why the accused’s version could not possibly be true.

l The imposition of the 12-month sentence was irregular because the magistrate did not give the State and the accused the opportunity to address her in aggravation and mitigation of sentence, and had no information on the accused’s personal circumstances.

Joasa president Nazeem Joemath said more experienced people should be appointed who had a sound knowledge of the law. Training should also be provided.

The accused, Raymond Titus, was charged in the Goodwood Magistrate’s Court with being in possession of tik. Evidence was given by a single witness, a police constable who claimed to have seen Titus throw the packet of tik over a fence.

But Titus, who represented himself, claimed he knew nothing about the tik, and told the court he had been walking with three other people at the time.

In August last year he was convicted of possession of 4.03g of tik, and sentenced to a year in jail.

The following month, when the case came before the High Court on automatic review, Judge Owen Rogers directed queries to the magistrate, who only responded earlier this month - nearly five months later.

“This is unacceptable. The procedure for automatic review is aimed at protecting unrepresented persons against injustice… a prompt response is thus called for.

“In the present case, and by virtue of the delay, the accused has almost certainly served his minimum time and been released on parole,” a scathing Judge Rogers said in a judgment handed down this week.

Referring to the magistrate’s failure to hear pre-sentencing submissions from the parties, Joemath said: “That is such a basic thing.”

Of the lengthy delay in replying to the judges’ query, he said:

“I’m in total amazement that a judge’s query is made in September and the response is only forthcoming in February. The senior magistrates at Goodwood should be taken to task over this.”

Turning to the merits of the case, Judge Rogers said: “I have re-read the transcript of the evidence. This was a simple case of directly contradictory versions by (the State witness) on the one hand for the prosecution, and by the accused on the other hand in his own defence.”

He pointed out that it had been possible for the prosecutor to call the constable’s colleague as a second witness, and that there was other evidence which the State could have handed in to corroborate its version.

Judge Rogers added that the magistrate claimed she had considered the need for caution when faced with the evidence of a single witness. However, this consideration was not mentioned in her judgment.

“The fact that the single witness occupies an official position, such as that of a police officer or traffic inspector, does not add weight to his evidence … One cannot say that (the State witness’s) version was inherently plausible while the accused’s version was not. One of them was lying or mistaken,” he said.

Both the conviction and sentence were set aside. Judge Ashley Binns-Ward concurred.

Reacting to the High Court judgment, Joemath said he would discuss the issue with senior magistrates at the Goodwood Magistrate’s Court.

- Sunday Argus


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