IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE, CAPE TOWN)
"REPORTABLE"

REVIEW CASE NO. WS04/2004 
MAGISTRATE'S SERIAL NO. 3/2009 
HIGH COURT REF. NO. 1080

In the matter between:
THE STATE
And

REVIEW JUDGMENT DELIVERED ON 26 MARCH 2010

DLODLO, J
[1] This matter was brought to me to be reviewed in terms of Section 24 (1) (c) of the Supreme Court Act 59 of 1959 as amended. It is common knowledge that Section 24 as a whole circumscribes the grounds upon which proceedings in the Magistrate's Court can be brought before the High Court in order that they are reviewed. This deals with the inherent jurisdiction of the High Court. Proceedings falling within the purview of Section 24 are other than those dealt with in terms of Section 304 of the Criminal Procedure Act 51 of 1977 as amended ("the Criminal Procedure Act"). The latter section deals with those matters that have come to be known as "Special Reviews" in legal circles. The instant matter was sent on review in that (although not yet finalized) in the view of the Presiding Magistrate a gross irregularity has been committed.

[2] Two (2) accused persons faced attempted murder charge before the Regional Court. They are John Mbezi and Lendy Wagner (respectively referred to as Accused 1 and 2). The accused persons were both legally represented. The charge was put to the accused persons and they both pleaded not guilty. On their behalf certain plea explanations were made in terms of Section 115 (2) of the Criminal Procedure Act. The State proceeded to prove its case by calling one James Meni as the only witness. The witness testified in chief and was duly cross-examined by the legal representatives of accused 1 and 2. After certain admissions in terms of Section 220 of the Criminal Procedure Act were made, the State rose to close its case.

[4] It was common cause that accused 1 even had a hearing aid put in one of his ears. It became apparent that the possibility was strong that accused 1 never heard and understood the proceedings from the beginning. A lengthy discussion ensued involving the Court, Prosecutor and Mr. Bezuidenhout. From this discussion it also emerged that Mr. Bezuidenhout was also a qualified psychologist. The proceedings halted as the solution was sought. At the insistence of the Magistrate, the Prosecutor sought help from Tygerberg Hospital. Accused 1 seemingly was examined and a report was prepared. Mr. Van Niekerk was called to testify about the said Report. The Report was an audiogram audiology. Mr. Van Niekerk did not purport to be an expert, but he testified that he worked for the National Institute for the Deaf in Worcester.

[5] His capacity is that of a communications facilitator, meaning that he facilitates communication between hearing people who experience hearing loss. This is what accused 1 was experiencing. Explaining his expertise, Mr. Van Niekerk testified that his work entails sign language interpretation to the deaf people with hearing loss and who are sign language proficient. He also interprets for people who do not use sign language, but have the skill of speech reading. He has nine (9) years practical experience of doing lip speaking/interpreting. Mr. Van Niekerk told the Court that the instant matter was very different in that accused 1 was not sign language proficient nor does he have speech reading skills. Consequently Mr. Van Niekerk had to approach the National Director of DEAF SA for advice on how to proceed in this matter. The advice given was that he should bring along a deaf person i.e. born deaf. This Mr. Van Niekerk did, but the lady he brought along attempted to no avail to communicate with accused 1.

[6] Mr. Van Niekerk, however, could communicate with accused 1 by using lip speaking skills. Accused 1 would, however, merely nod his head or just answer what he would want to hear. Mr. Van Niekerk would alternate i.e. he would use his voice and not use it and he found that accused 1 understood both on a 50/50 basis. This moved Mr. Van Niekerk to a conclusion that accused 1 does indeed face communications barriers and Mr. Van Niekerk requested an audiogram. The communications barriers were very obvious despite the fact that accused 1 was using a hearing aid. Mr. Van Niekerk then testified about the audiogram. He found accused 1 to be suffering hearing loss of approximately seventy (70) decibels in the right and seventy five (75) decibels in the left ear. In Mr. Van Niekerk's testimony, to communicate with accused 1, one has to be very patient, speak slow, using simple words. The longer the word, the harder it is to read on the lips. According to Mr. Van Niekerk, one needs to make sure that accused 1 understands; the best is to stand in front of him and to ensure that he looks at your face. Only five (5) letters of the alphabet can be read on the lips - the rest is guesswork.

[8] The Magistrate put a statement to Mr. Van Niekerk that the Court observed that some of the answers accused 1 gave were totally irrelevant to the questions asked and needed to know why that was the case.

Mr. Van Niekerk castigated the hearing aid saying it only hears from the microphone. Even though Mr. Van Niekerk is not an expert (he never claimed to be one) it is very clear that he has sufficient knowledge on the subject matter at hand. He also has years of experience to his credit. I do not have doubts about his evidence. The trial Court also heeded the danger of proceeding with a matter the proceedings of which were possibly not heard and understood by the accused concerned.

[9] Our Constitution guarantees every accused person a right to a fair trial. Another right which is constitutionally enshrined is a right to be tried in your language or the language you best understand. This particular accused has a clear disability as far as hearing is concerned. If the accused did not hear what was testified in his own case, how can one even start talking about understanding the proceedings? One first hears before one understands. I salute the Magistrate for having been so alert that he detected that accused 1 has a particular problem. I say so because other Presiding Officers would have accepted that he answered irrelevantly merely because he is a lying witness.

[10] Section 35 (3) (k) of the Constitution Act 108 of 1996 provides as follows:

"The common law right of the parties to be heard and understood by a court and the right to understand what is going on in court is not a language right but an aspect of the right to a fair hearing. It is a broader and more universal right than language rights...It belongs to the category of rights which in the Charter are designated as legal rights. "

I agree.

								FORTUIN, AJ