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[2021] ZALMPPHC 13
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S v Mugera and Another (16/2021) [2021] ZALMPPHC 13; 2022 (1) SACR 53 (LP) (6 May 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
Review
no: 16/2021
In
the matter between:
THE
STATE
And
MARTIN
MUGERA
FIRST
ACCUSED
MMASEGATLA
MAVIS MOREMI
SECOND
ACCUSED
REVIEW
JUDGMENT
KGANYAGO
J
[1]
The two accused are facing one count of fraud, in the alternative
theft read with the provisions
of section 51(2) of the
Criminal
Law Amendment Act
[1]
,
and money laundering. Both accused are legally represented. Accused
one is being represented by Ms Maloko a private legal practitioner,
whilst accused two is being represented by Mr Mathebula from Legal
Aid South Africa. Both accused have pleaded not guilty on both
counts.
[2]
After the closure of the State case, accused one applied for
discharge in terms of section 174
of the
Criminal
Procedure Act
[2]
,
which application was refused. Accused two did not apply for a
discharge. Thereafter, accused one took the witness stand and
testified
under oath in his defence. During cross examination of
accused one by counsel for accused two, the presiding magistrate
noticed
that the behaviour of counsel for accused one was somehow
peculiar. The presiding magistrate suspected that counsel for accused
one was under the influence of a substance, and she enquired whether
counsel for accused one was well. Counsel for accused one
responded
by stating that she was well. Thereafter there was an engagement
amongst the presiding magistrate, counsel for both accused
and the
prosecutor relating to the manner in which counsel for accused two
was cross examining accused one.
[3]
During the engagement, the prosecutor raised some concern about the
state of mind of counsel for
accused one and enquired whether accused
one was still been legally represented, and whether it was advisable
for the trial to
proceed. The court enquired from counsel for accused
one whether she was feeling fit to proceed with the trial that day,
and counsel
for accused one stated that she was fit. The presiding
magistrate
mero motu
decided to stand the matter down raising
some concern that it appears that counsel for accused one was not in
her sound and sober
senses to proceed with the trial. Counsel for
accused one requested that the matter be stood down until the
following day, and
that she will come to court being intelligent,
proper and fit. At that stage counsel for accused one asked for
forgiveness from
court and stated that she was conveyancer, she does
not know court things, she was very drunk and she thought that the
court would
not have picked it up.
[4]
The presiding magistrate has brought this matter as a special review
stating that from the outset
of the proceedings, counsel for accused
one was absent at court without any reasonable explanation, and the
investigating officer
had to assist the court in securing the
attendance of counsel for accused one. That after the attendance of
counsel for accused
one was secured, she did not ask any questions or
put the version of accused one to the State witnesses. The presiding
magistrate
is requesting the reviewing court to determine whether
accused’s one right to a fair trial, encompassing the right to
legal
representation has not been infringed by the behaviour of his
counsel who was not in her sound and sober sense during the
proceedings
of the 1
st
December 2020.
[5]
I have requested the comment from the Deputy Director of Public
Prosecutions (DDPP). The DDPP
has provided me with a valuable opinion
and I am indebted to them. According to the DDPP, accused one was not
properly represented
and that there was failure of justice. It is the
DDPP’s submission that the proceedings were not in accordance
with justice,
and should be set aside, and that the proceedings start
de novo
before another magistrate.
[6]
An accused person has a fundamental right to be legally represented
during trial. In terms of
section 35(3) of the Constitution, every
accused person has a right to a fair trial. The right to fair trial
will entail the accused’s
trial being conducted in accordance
with the basic notions of fairness and justice.
[7]
In
NDPP
v King
[3]
Harms DP said:
“
The right to a
fair trial is, by virtue of the introductory words to s 35(3) of the
Bill of Rights, broader than those rights specifically
conferred by
the fair trial guarantee therein and embraces a concept of
substantive fairness that is not to be equated with what
might have
passed muster in the past. This does not mean that all existing
principles of law have to be jettisoned, nor does it
mean that one
can attach to the concept of a ‘fair trial’ any meaning,
whatever one wishes it to mean. The question
remains whether the
right asserted is a right that is reasonably required for a fair
trial. A generous approach is called for.
This is a question for the
trial judge and there is in general not an
a priori
answer to
the question whether the trial will be fair or not. Potential
prejudice may be rectified during the course of the trial
and the
court may make preliminary rulings depending on how the case unfolds
and may revoke or amend them. Irregularities do not
lead necessarily
to a failure of justice.”
[8]
From the commencement of the trial the first accused has been legally
represented by a legal practitioner.
The legal practitioner who was
representing the first accused has conceded that she was very drunk
in relation to the proceedings
of 1
st
December 2020. In
her own words she said she was “
very drunk”.
She
had represented the first accused whilst she was not in her sound and
sober senses. The question is whether the legal practitioner
for the
first accused had conducted the defence of the first accused properly
whilst she was very drunk, and also a conveyancer
who knew nothing
about court processes.
[9]
In
S v
Halgryn
[4]
Harms JA said:
“
The constitutional
right to counsel must be real and not illusionary and an accused has,
in principle the right to a proper, effective
or competent defence.
Compare S v Majola
1982 (1) SA 125
(AD) at 133D-E. Whether a defence
was so incompetent that it made the trial unfair is once again a
factual question that does not
depend upon the degree of
ex post
facto
dissatisfaction of the litigant. Convicted persons are
seldom satisfied with the performance of their defence counsel. The
assessment
must be objective, usually, if not invariably, without the
benefit of hindsight. Compare S v Louw
[1990] ZASCA 43
;
1990 (3) SA 116
(A) at 125D-E.
The Court must place itself in the shoes of the defence counsel,
bearing in mind that the prime responsibility in
conducting the case
is that of the counsel who has to make decisions, often with little
time to reflect (cf R v Matonsi
1958 (2) SA 450
(A) at 456C as
explained by S v Louw (supra). The failure to take certain basic
steps, such as failing to consult, stand on a different
footing from
failure to cross-examine effectively or the decision to call or not
call a particular witness. It is relatively easy
to determine whether
the right to counsel was rendered nugatory in the former type of the
case but in the latter instance, where
counsel’s discretion is
involved, the scope for complaint is limited. As the US Supreme Court
noted in Strickland v Washington
[1984] USSC 146
;
466 US 668
(1984) at 689:
‘
Judicial
scrutiny of counsel’s performance must be highly deferential.
It is all too tempting for a defendant to second-guess
counsel’s
assistance after conviction or adverse sentence, and it is all too
easy for court, examining counsel’s defense
after it has been
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.’
Not everyone is a
Clarence Darrow or FE Smith and not every trial has to degenerate
into O J Simpson trial.”
[10]
Counsel for the first accused has stated that she was a conveyancer
and knows nothing about court processes,
yet she took the
instructions to represent the first accused. Since she knew nothing
about court processes, I doubt whether she
had properly prepared for
the case. If she did not prepare for the case, she would not have
been in a position to conduct the first
accused defence properly. Her
state of sobriety would also have affected her ability to represent
the first accused properly on
1
st
December 2020.
[11]
According to the presiding magistrate the first accused counsel did
not ask State witnesses any questions
or put the version of the first
accused. It would seem as if the first accused was unrepresented
during trial. If it was made clear
from the beginning of the trial by
the first accused that he will appear in person, he would have
been in a better position
as it would have been the duty of the
presiding magistrate to assist an unrepresented accused person.
[12]
The trial started on 3
rd
August 2020, and accused one has
pleaded not guilty to all the counts and elected not to disclose the
basis of his defence. The
State called Johannes Manamela, Godliep
Lesiba Ratlou, Ephraim Doctor Ratlou, Matome Samson Madia, Johanna
Khumalo and Michael
Benny Moffat as its witnesses. Counsel for
accused one has cross examined Madia, Khumalo and Moffat. The
witnesses that were implicating
the first accused were Khumalo and
Moffat. The version that counsel for accused one has put to Khumalo
and Moffat was just a bare
denial. It was only when one accused one
took the witness stand that he gave full details of his defence,
which was a version which
was not entirely put to the State
witnesses. It is therefore not correct that counsel for accused one
did not cross examine the
State witnesses. The State witnesses that
she did not cross examine did not implicate the first accused, and
there was no need
for her to cross examine them. With regard to
putting the version of accused one to the State witnesses, counsel
for accused one
did not put that version in detail, and that will
result in prejudicing accused one when he testified in his defence.
[13]
Failure by counsel for the first accused to put the version of the
accused in an articulate manner had serious
consequences for the
first accused. When he took the witness stand and gave the version
that was never put to the State witnesses,
it was like he was
adjusting his evidence as the trial progresses. Failing to put an
accused version to the State witnesses in
an articulate manner will
not be rectified by an accused person when he/she took the witness
stand as that will be regarded as
an afterthought. That in itself has
prejudiced the first accused in presenting his defence.
[14]
An accused person has the right to effective legal representation. An
effective legal representation
denotes that the legal representative
must act in the best interest of his/her client, whilst still
ensuring that his/her inherent
duty towards justice is maintained.
(See
S v
Mofokeng
[5]
).
Failure by counsel for first accused to put in detail the version of
accused one to State witnesses might be as a result of her
not
knowing court processes. By taking instructions from the first
accused whilst not knowing court processes was a disservice
to the
first accused.
[15]
The other area of concern in this matter occurred on 1
st
December 2020 when counsel for accused one came to court and
represented accused one whilst very drunk. The objection that she
had
raised against the line of questioning of Mr Mathebula on the first
accused did not make sense at all, and that is what alerted
the
presiding magistrate that something was wrong with counsel for first
accused. It was clear that counsel for the first accused
was not
following the proceedings as a result of her intoxication. I agree
with the State prosecutor that on 1
st
December 2020
accused one was not represented, as his counsel was not in his sound
and sober senses. In my view, taking into consideration
that the
first accused’s counsel was very drunk, and was a conveyancer
who knew nothing about court processes, the first
accused did not
have the benefit of effective legal representation during trial. That
has tainted the whole proceedings. The proceedings
were therefore not
in accordance with justice, and stand to be reviewed and set aside.
The conduct and behaviour of the first accused’s
counsel is an
issue of great concern as that is the conduct and behaviour not
expected from an officer of the Court. Copy of this
judgment need to
be brought to the attention of the Legal Practice Council for their
investigation of the conduct and behaviour
of counsel of the first
accused in this matter.
[16]
In the result I make the following order:
16.1. The proceedings of
this matter in its entirety are reviewed and set aside.
16.2. The matter is
remitted to the trial court for a trial
de novo
before another
Magistrate.
16.3. Copy of this
judgment to be sent to the Legal Practice Council.
MF.
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
I
AGREE
MV
SEMENYA J
JUDGE
OF THE HIGH COURT OF SOUTH
AFRICA,
LIMPOPO DIVISION, POLOKWANE
DATE
DELIVERED: 6
TH
MAY
2021
[1]
105 of 1997
[2]
51 of 1977
[3]
2010 (2) SACR 146
(SCA) at 151d-g
[4]
2002 (2) SACR 211
(SCA) at para 14
[5]
2004 (1) SACR 349
(W) at para 18