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[2015] ZAGPJHC 129
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Maliwa v S (A352/2014) [2015] ZAGPJHC 129 (29 May 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(SOUTH GAUTENG LOCAL
DIVISION, JOHANNESBURG)
Case number: A352/2014
DATE: 29 MAY 2015
In the matter between:
LUVUYO
MALIWA
..........................................................................................................
APPELLANT
Versus
THE
STATE
....................................................................................................................
RESPONDENT
JUDGMENT
Date of hearing: 25 May 2015
Judgment: 29 May 2015
A.M.L. PHATUDI, J
[1] The appellant was charged at Protea
Regional Court with:
Count 1: Kidnapping
Count 2: Contravention of the provision
of Section 3 read with Section 1; 56(1); 57; 58; 59 ; 60 and 61 of
the Criminal Law ( Sexual
Offences and Related Matters) Amendment
act, Act 32 of 2007 (Rape).
Count 3: Robbery with aggravating
circumstances as intended in Section 1of
Criminal Procedure Act 51 of
1977
.
[2] The appellant conducted his own
defence. He pleaded not guilty to all counts. He was convicted as
charged and sentenced to two
(2); eight (8); and eight (8) years
imprisonment in respect of count 1, 2 and 3 respectively.
[3] The appellant who is now legally
represented, appeals, with leave of this Court on petition against
both conviction and sentence.
[4] At the commencement of the hearing
of this appeal, we condoned the late filling of his heads of
argument.
[5] It is trite that the state must
prove its case beyond reasonable doubt. It is further trite the
accused must be released if
his or her version is reasonably and
possibly true.
[6] The following are grounds for this
appeal. It is submitted that the magistrate failed:
(i) To enquire as to whether the lack
of legal representation will place the appellant at such a
disadvantage resulting in the trial
being unfair.
(ii) To properly assist the appellant
during the cause of the trial
(iii) To properly assist the appellant
to obtain his hospital records and
(iv) That the appellant’s version
is reasonably and possibly true
[7] In delivering the judgment, the
magistrate enquired if the Legal Aid would take over this matter
again in representing accused.
The legal representative employed by
Legal Aid South Africa assured the court that they (Legal Aid South
Africa) would not because
the accused had terminated their mandate.
[8] Ms Botha, for the appellant,
submits that the magistrate ought to have ordered the Legal Aid South
Africa to consider appointing
a “Judicare” to represent
the appellant after his termination of a specific legal
representative’s mandate employed
by the Legal Aid South
Africa.
[9] In rebuttal thereto, Mr Mbaqa for
the State, submits that the magistrate cannot be faulted for having
let the accused conduct
his own defence. The magistrate correctly
accepted the submission from an officer of this Court, who stated
that Legal Aid South
Africa would not reconsider acting for the
accused because of his termination of the mandate.
[10] Ms Botha explains that a
“Judicare” is an attorney in private practice who gets
instructed by Legal Aid South Africa
to represent accused persons at
the Legal Aid’s expense. She reiterates that the magistrate
ought to or was reasonably expected
to have ordered Legal Aid South
Africa to instruct a “Judicare” to represent the
appellant due to the nature and seriousness
of the offences the
appellant was facing.
[11] Considering the submission made
and what Goldstone J (as he then was) penned in S v Mbonani
1988 (1)
SA 191
(T) that:
“If there is a duty upon judicial
officers to inform unrepresented accused of their legal rights, then
I can conceive of no
reason why the right to legal representation
should not be one of them. Especially where the charge is a serious
one which may
merit a sentence which could be materially prejudicial
to the accused, such an accused should be informed of the seriousness
of
the charge and of the possible consequences of a conviction.
Again, depending upon the complexity of the charge, or of the legal
rules relating thereto, and the seriousness thereof, an accused
should not only be told of this right but he should be encouraged
to
exercise it. He should be given a reasonable time within which to do
so. He should also be informed in appropriate cases that
he is
entitled to apply to the Legal Aid Board for assistance. A failure on
the part of the judicial officer to do this, having
regard to the
circumstances of a particular case, may result in an unfair trial in
which there may well be a complete failure of
justice. I should make
it clear that I am not suggesting that the absence of legal
representation per se will necessarily result
in such an irregularity
or an unfair trial and the failure of justice. Each case will depend
upon its own facts and peculiar circumstances.”(
emphasis
added)
[12] I am persuaded to accept that the
magistrate ought to have informed the appellant of his further rights
to apply to the Legal
Aid South Africa to instruct a “Judicare”
who would have represented him further. The magistrate’s
failure to
do so is a failure of justice.
[13] The other issue to consider is the
court’s failure to assist the appellant to retrieve his
hospital records. Immediately
after the appellant pleaded not guilty
to all counts, he placed on record the basis of his defence. It is
recorded:
ACCUSED: “Understood your
Worship.
COURT: Right is there anything you want
to say or would you like to remain silent?
ACCUSED: Yes there is an explanation.
COURT: You may proceed
ACCUSED: I was not resident in
township, and at that stage I was sick, and I was only recuperated
after being arrested in this matter.
I deny the allegation because
even when I was at the police station an ambulance was summoned and
even in court during the my appearance
I was I also was sick I would
not be in a state to commit the said offence. On the said day of the
23rd it is one of those days
I was taken with an ambulance to the
hospital. When I requested assistance from the police officers to
assist in getting this information
or prove that I was in hospital on
the said day it was alleged that the hospital needed a parent or a
family member and I do not
have a parent who would be able to get
this information for me.”
[14] At the end of the defence case and
just before the delivery of the judgment, the appellant again
requested the court to assist
him in getting the hospital records. It
is further recorded:
COURT: “Did you get, what are you
going to do if you got the medical records?
ACCUSED: The hospital says it is only
the court that can make an order that information taken out to prove
as they wanted my blue
card so I did not have a blue card.(sic)
COURT: What does your blue card say?
ACCUSED: I no longer have the blue card
because when I got arrested everything that belonged to me got lost.
And there are witnesses
the people who took me to hospital.”
[15] The appellant’s version is
that he was sick on the day in question. He was taken to the hospital
by an ambulance. He
testified that the hospital records, if retrieved
from the hospital, will speak for themselves. The hospital refuses to
release
the records other than to the owner and or to his wife. He
indicated that he has no wife and, tipping the scale, he lost his
blue
card. He placed on record that ‘the hospital says it is
only the court that can make an order [for] that information be taken
out.’
[16] The court was appraised that the
hospital needs the court order or the blue card (Patient’s
hospital card). The appellant
was at pains to obtain the hospital
records which would have corroborated his version or even exenorate
him. The magistrate failed
to assist the unrepresented appellant to
obtain his hospital records notwithstanding his plea to the court.
[17] Considering the appellant’s
efforts and plea to obtain the hospital records that had fallen on
deaf ears, I am of the
view that the magistrate’s failure to
assist an unrepresented appellant renders the trial unfair. The
magistrate’s
failure to order the release of the appellant’s
hospital records is a complete failure of justice (see S v Mbonambi).
[18] Considering the appellant’s
version, I am of the view that it is reasonably and possibly true and
the appellant must
be released.
ORDER
[19] In the result, the appellant’s
appeal against conviction is upheld.
The trial court’s conviction is
therefore set aside and replaced with the following:
‘The accused is found not guilty
and must be released.’
AML Phatudi
Judge of the High Court
I agree
Hertenberger-Brack
Acting Judge of the High Court