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2023
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[2023] ZAFSHC 26
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Blom v S (A95/2022) [2023] ZAFSHC 26 (6 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Appeal
number: A95/2022
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
THEMBA
BLOM
Appellant
and
THE
STATE
Respondent
CORAM:
LOUBSER, J
et TSANGARAKIS, AJ
HEARD
ON:
6 FEBRUARY 2023
JUDGEMENT
BY:
LOUBSER, J
DELIVERED
ON:
6
FEBRUARY 2023
[1]
This is an appeal where the duties of the presiding officer in cases
where the accused
is unrepresented, again forms one of the grounds of
appeal. It is contended on behalf of the appellant that the presiding
officer
failed to assist or guide the appellant during his
cross-examination of the complainant.
[2]
The appellant was found guilty of rape by the Regional Court
Magistrate of Bloemfontein
in 2014 and sentenced to 20 years
imprisonment. He thereafter battled for a long time to be assisted in
preparing an application
for leave to appeal, which application was
eventually only heard in 2022. He was granted leave to appeal against
his conviction
and sentence by another Regional Court Magistrate in
July 2022.
[3]
The appellant was charged with the offence of rape, and at the
commencement of the
proceedings, he was duly informed by the
Magistrate of his right to legal representation, and of the minimum
sentence applicable
should he be found guilty. He was also duly
informed that he should put his version to state witnesses where ever
he disagrees
with their evidence, otherwise it could count against
him. The appellant indicated that he understood what he was told, and
he
was then adamant that he wanted to conduct his own defence.
[4]
The appellant, who was 23 years old at the time, pleaded not guilty
to the charge.
He told the court that he did have sexual intercourse
with the complainant, but with her consent. He explained that when he
arrived
at the complainant that night, he found her with another man,
who then left. It later transpired that the complainant is the wife
of the appellant’s brother.
[5]
The complainant was then called to testify, and she told the court in
chief how she
was raped that night by the appellant in her house
after the appellant had threatened her with a fire-arm and a knife.
She testified
that she did not consent to sexual intercourse.
[6]
When the appellant cross-examined the complainant, he never put to
her the proposition
that there were consensual intercourse. He only
asked a number of questions that had little to do with his actual
defence. The
presiding Magistrate did nothing during the course of
the cross-examination to guide or to assist the appellant to deal
with the
aspect of consent.
[7]
After the closure of the State case, the appellant himself testified.
He told the
court that he found a strange man in the house of the
complainant when he went there that night. The man left. The
complainant
came to stand between his legs where he was sitting, and
she begged him not to tell his brother about the other man who was
there.
She then started to fondle him and to kiss him, he testified.
They then went to the bedroom where they had sexual intercourse.
[8]
None of these things were mentioned by the appellant when he
cross-examined the complainant.
As already mentioned, the Magistrate
also did nothing to remind him that he should deal with the
allegation of consent. Notwithstanding,
the Magistrate held this
failure to deal with the aspect of consent against him in his
judgement, and it became one of the pillars
on which the appellant
was found guilty.
[9]
The essential question is now whether it can be said that the
appellant had enjoyed
a fair trial. In
R v Ramulifho
2013 (1) SACR
388
(SCA)
the Supreme Court of Appeal has confirmed that the
right to a fair trial in terms of Section 35(3) of the Constitution
includes
the obligation on court to assist an undefended accused to
present his defence properly. The Regional Court Magistrate was
obliged
to act as a guide to the appellant at all stages of the
trial, the Court found.
[10]
In
S v Mofokeng
2013 (1) SACR 143
(FS)
the Free State High
Court specifically ruled that where an undefended accused fails to
cross-examine a state witness on a material
issue, the judicial
officer should question the witness on the issue so as to reduce the
risk of a possible failure of justice.
See also in this respect
S
v Mula
2019 (2) SACR 579
(FS).
[11]
The position is therefore that an irregularity has taken place in the
trial of the accused, which
in turn led to an unfair trial which
constituted a failure of justice. The conviction and sentence
therefore cannot stand. The
following orders are made:
[12]
1. The conviction and sentence are set aside.
2.
The matter is referred
to the Director of Public Prosecutions, Free State, for a decision
whether the appellant should be tried
de novo before another
Magistrate.
P.
J. LOUBSER, J
I
concur:
S.
TSANGARAKIS, AJ
For
the Appellant:
Mr P. L. van der Merwe
Instructed
by:
Bloemfontein Justice Centre
For
the Respondent:
Adv. S. M. Mthethwa
Instructed
by:
The Director of Public Prosecutions, Bloemfontein
/roosthuizen