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[2019] ZAGPPHC 321
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Moloi and Others v S (A25/2018) [2019] ZAGPPHC 321 (17 April 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
Case
No: A25/ 2018
HEARD
ON: 17 APRIL 2019
DELIVERED
ON: 17 APRIL 2019
In
the matter between:
OUPA
ALPHEUS MOLOI
First Appellant
XOLANI
JAMES NTSHALINTSHALI
Second Appellant
And
THE
STATE
Respondent
JUDGMENT
MOHLAMONYANE AJ:
INTRODUCTION:
[1]
The First Appellant (Accused no 3 in the Court a
quo)
and the
Second Appellant (Accused no 4 in the Court a
quo)
were
charged with and convicted of the crime of robbery with aggravating
circumstances as in tend ed in section 1 of the Criminal
Procedure
Act, no 51 of 1977
("the CPA" )
read with sections
51(2), 53 and Schedule 2 of the Criminal Law Amendment Act , no 38 of
2007. They were each sentenced to undergo
imprisonment of (10) years.
THE RELEVANT FACTS:
[2]
On
17 July 2015 the two Appellants appeared with two others, Accused nos
1 and 2 in the Regional Court sitting at Sebokeng. Except
for the
First Appellant, the rest of the accused were on bail. From what the
learned Regional Magistrate indicates on record, on
17 July 2015 the
two Appellants and the other co-accused were represented by lawyers.
On the latter date the case was postponed
for trial to 10 November
2015. The matter was in effect se t down for trial for three (3)
consecutive days, viz., 10, 11 and 12
November 2015.
[3]
On
10 November 2015 the two Appellants and the other co-accused
appeared. Accuse d no l was represented by Mr Museze and Accused
no 2
by Mr Landman. Mr Mumbo, who was representing the two Appellants, was
absent. It is apparent from the record of proceedings
that these
three dates were arranged with the three legal representatives
representing the Appellants and the other two co-accuse
d . For
completeness sake, the relevant portion of the record reflects the
following :
"On 17 July 2015, the y
appeared before me and their legal representatives. By practice, I do
not give lawyers dates for trial.
They are the ones who give me dates
of trial, as their diaries allow them to be in my Court on the given
date. It is a result of
that that I was given three dates, that is to
say this matter was set down for three dates.... To give us those
dates that we are
going to do the matter and the next thing you do
not pick (sic) up in Court, you are doing a great injustice and
putting the Department
of Justice into disrepute. That means we must
go on a working day, we must lock, close the Court doors and go and
play golf ".
[4]
The
abovementioned rem arks were made by the learned Regional Magistrate
castigating the absent Mr Mumbo. He expressed a very strong
sentiment
about the
"great injustice"
being perpetrated by Mr Mumbo, who
failed to make an appearance in Court after dates were arranged as
set out above.
[5]
I
can safely presume that the learned Regional Magistrate held a very
strong view that the Department of Justice was being put
"into
disrepute"
because the Chie f
Justice had set out norms and standards for judicial officers, which
were, in a sense, trampled upon if an arranged
trial cannot
potentially be proceeded with as a result of the absence of a legal
representative. I say this because the learned
Regional Magistrate
felt obliged to refer to the guidelines to judicial officers as
published in a Government Gazette. The subheading
of the guidelines
is capped
"Finalisation of all
matters before a judicial officer".
In
the record the learned Regional Magistrate quotes the relevant
paragraphs verbatim. I do no t deem it necessary to quote them
in
full in this judgment . Suffice to mention that in a nutshell, the
guidelines require of judicial officers to attempt to finalise
criminal cases as speedily as possible in the circumstances. They
also urge judicial officers to cause accused persons to plead
to a
charge(s) within three (3) months from the date of first appearance.
Lastly, judicial officers are urged to strive to finalise
criminal
matters within six months after the accused has pleaded to the
charge.
[6]
In
the proceeding s of 10 November 2015 it was the Prosecutor who
informed the learned Regional Magistrate that the Appellants'
legal
representative was absent . In part, the Prosecutor's report went
thus:
“
Your
worship Mr Mumba, who is not before Court,
...
indicated to the Public Prosecutor
...
this
morning
...
that
accused 3 and 4, they did not pay him his fees, …”.
[7]
It
was clear that the legal representative did not appear because he was
not placed in funds by the two Appellants. Th e question
that
remained was as to whether the trial should proceed without the two
Appellants not being legally represented . I will immediately
hereunder deal with the right to leg al representation.
THE
RIGHT TO LEGAL REPRESENTATION:
[8]
At
the outset I quote in full the relevant portions of section 35 of the
Constitution of the Republic of South Africa , Act no 108
of 1996
("
the Constitution" ).
" 35(3) Every accused
person has a right to a fair trial, which includes the right
-
(f) to choose, and be
represented by, a legal practitioner, and to be informed of this
right promptly" .
[9]
The
learned Regional Magistrate was acutely aware of this entrenched
right in our Constitution. He retorts as follows from the record:
"I
am
aware that the two accused concerned,
three and four, they have
got
a
right in our constitution, namely the right to legal representation,
but that is not the only right in that constitution. There
are other
rights
as
well".
In an attempt to justify his point
of view the learned Regional Magistrate places reliance on the
reported case of S v Soule, 2009(1)
SACR1 96 (CkHC). The learned
Regional Magistrate commented thus regarding S v Soule:
"..
.where it was
indicated that an accused 's right to choose a legal representative
was not absolute, but subject to reasonable limitations,
and that
makes sense,
as
I
am
saying there are other rights a s
well. That is not the only right, and there fore it cannot be
absolute".
[10] I
have had occasion to read the relevant portions of the case of S v
Soule, referred to in the preceding
paragraph. Briefly , the case was
an appeal against both convictions and sentences by a magistrate. In
the course of dealing with
the merits of the case, the issue of the
right to a fair trial and the right to legal representation arose.
The Court stated the
following in paragraph 21:
" It
is
necessary
to
clarify that an accused person's
right to legal representation of his choosing is not unfettered.
Although
a
person
must be afforded
a
reasonable
opportunity to exercise this right it does not mean that
a
Court is compelled to grant
a
number of postponements for this
purpose. At
some
stage
the refusal of further postponements would certainly be justified and
the trial could then proceed without the accused being
legally
represented . Nee d les s to say, this will depend on the
circumstances o f e a c h
case
and
it would be ill-a d vised to prescribe w hen this may
occur.
In the circumstances of the present
matter, however, this stage had clearly not been reached".
Th e Court went on:
"[22] The denial to
the appellant of
a
reasonable
opportunity to secure the presence of his legal representative
was
an irregularity that rendered the
trial unfair. See S v Manguanyana 1996(2) SACR283 [E] ; and S v
Philemon
1997 (2) SACR 651
(W) .
"[23] The regional
magistrate's refusal to grant the appellant
a
postponement or, at the very least,
a
brief adjournment
was
not based on substantial grounds. He
manifestly did not exercise his discretion properly. The decision was
prejudicial to the appellant
and this court
is,
in the circumstances, competent to
intervene and required to do
so.
It
follows that the convictions and sentences must accordingly be set
aside. See S v Dangatye (supra) at 23f
-g;
S v Shabangu
1976 (3) SA 555
(A); and
S v Maduna en 'n Ander
1997 (1) SACR 646
(T )".
[11] After
placing reliance on the So u le case, the learned Regional Magistrate
was of the view that he
had given the Appellants sufficient time,
more than three months to be precise, to prepare their case. He was
also of the view
that even if there was, for example an issue of
changing attorneys, the three months or so afforded the Appellants
was sufficient
to so rt that out. I disagree. This is a clear
misdirection on the part of the learned Regional Magistrate, because
the Appellants
were not afforded an opportunity to find an
alternative legal representative. The Court inquired from the Second
Appellant as to
what his lawyer has told him as he was given a chance
to call him. The Second Appellant intimated that his attorney had
informed
him that he would be available the following day, which was
on 11 November 2015.
[12] It
has to be borne in mind that the case was set down for three days.
Despite having indicated that
the Appellant's attorney would be
available on the following d ay, the learned Regional Magistrate
ruled that the case be proceeded
with, which was done.
[13]
In his he a d s of argument, the legal
representative appearing for the Appellants submitted that the
Appellants did not receive
a fair trial because their section 35(3)
constitutional rights were infringed , by denying them the
opportunity to be legally represented.
In this regard he referred to
S v Lusu , 200
5 (2) SACR 538
(EC), in which Plasket J (Froneman J
concurring ) m a d e the following comment at paragraph 11:
" The right to legal
representation is a right that is central to the
fairness
of criminal trials. Kroon J, in S
v
Manguanyana , held that this right
was ' on integral part of our
legal
system ' , and the ' cornerstone
of
a civilised system of justice ' "
.
At paragraph 12 of the judgment
the following appears:
"The
purpose
of the right to
legal
representation is explained as follow
s by Professor Steytler:"
'The right to a lawyer is an
essential feature of the right to a fair trial
as
lawyers play a critical role in
ensuring that the accusatorial system, the foundation of
a
fair trial in the com mon-la w
tradition, produces
a
just
result. In an adversary system
a
court's decision rests primarily on
the evidence and arguments
advanced
by the parties
and
the system is predicated on the
assumption that parties will protect their own interests through
their vigorous participation in
the proceedings.
A
fair adversary system is thus
dependent on the prosecutor and the accused participating fully and
effectively in order to produce
a just decision.
Bec a use effective
participation requires legal knowledge
and
courtroom skills, accused need the
assistance of lawyers who have such knowledge and skills. With the
constitutionalisation of criminal
procedure, the need for legal
assistance is even greater; not only is a fair trial likely to emerge
through skilled participation,
but other constitutional rights, such
as
privacy,
can also be vindicated through the criminal process'.
[14]
He made further reference to S v Sibisi
2005 (2) SACR 645
(WLD). In fact, this judgment of the Full Court,
per Kriegler AJ, Kuny AJ and Whiting AJ (as they then were) was
concerned with
two appeals from trials in the regional court in which
the appellants were not legally represented. The Court remarked thus:
"And where an accused
wishes to obtain legal representation at State expense but his
application to the Legal Aid Board has
Apparently been unsuccessful,
it will be essential that the presiding officer should pursue the
question whether 'substantial injustice
' would result if the accused
were not provided with legal representation at his trial at State
expense".
[15]
The last one the Appellants' legal
representative referred to in support of his argument is S v Mafika
2016 (1) SACR 623
(FB). In this case , the legal representative of
the accused withdrew at the outset of the trial and accused requested
legal representation
since he did not understand the charge. The
magistrate pressed ahead with the case and insisted that the charges
be put to the
accused. It was held that despite repeated requests
from the accused for legal representation the magistrate ignored the
constitutional
imperatives contained in section 35 of the
Constitution.
[16]
In his he a ds of argument the Respondent's counsel, in opposition to
the Appellants' contention
that they did not receive a fair trial,
referred to S v Halgryn
2002 (2) SACR 211
(SCA). He submitted that
the Appellants' right to leg al representation is not an absolute
right, but is subject to reasonable
limitations. In Halgryn's case,
the appellant was assig ne d a legal representative by the State at
the insistence of the Court
a
quo.
Pertinent hereto are the
following comments by Harms JA (as he then was) Brand JA and Heher
AJA (as he then was); concurring .
"If
a
legal representative is assigned by
the State , the accused has little choice. The accused cannot demand
that the State assig n
to him counsel of his choice. That does not
mean he may not object to a particular representative, but the
grounds upon which it
can take
place
are severely limited".
(at
216 d e).
[17]
In
the book, The Bill of Rights Handbook 6
th
ed, by lain Currie and Johan de Waal , the learned authors stated the
following :
" The influence of the
Bill of Rights on the criminal justice system has been significant.
It provides grounds for reviewing
both the substantive and procedural
content of the intricate web of laws shaping criminal justice as well
as provide remedies for
breaches of the Constitution".
[18]
I now revert back to consider the
conduct of the learned Regional Magistrate . After ordering that the
trial should proceed, the
Prosecutor put the charge to the four
accused to which all four pleaded not guilty. The date w as 10
November 2015, the first day
of trial. Both Appellants elected to
remain silent by not disclosing the basis of their defences. So too
the other two accused.
On the same day, the first state witness was
called who testified. After accused nos 1 and 2's legal
representatives had cross
examined the witness, the First Appellant
was requested to cross- examine the witness. From the record, by the
learned Regional
Magistrate, the following emerges:
"Any cross-examination?"
ACCUSED 3: I
do
have questions but I
do
not have a lawyer.
COURT: So what you are saying
is you
do
not
have a lawyer, and therefore you are not cross-examining this
witness.
ACCUSED 3: Correct".
COURT: Thank you sir. Sit
down... Cross examination by accused 4?
ACCUSED 4: Yes".
[19] After
the exchange the Second Appellant commenced with his c ross
examination of the first state
witness. Both Appellants elected not
to c ross-examine the second state witness, who gave damning and
incriminating evidence against
them.
[20] At
the stage when the First Appellant (Accused No 3 in the Court a quo)
indicated that he wished to
cross-examine but did not have a lawyer,
one's sense of justice dictates that the learned Regional Magistrate
ought to have stopped
the proceedings and insisted upon the
Appellants being provided with legal representation at State expense,
as clearly set out·
in the Halgryn case,
supra.
In this regard, the learned Regional
Magistrate misdirected himself such that the Appellants, who were
facing a very serious charge,
were prejudiced.
[21]
On
the facts, Halgryn case is distinguishable to the present case.
Halgryn was provided with a legal representative by the Legal
Aid
Board, whereas in
casu
no
such legal representation was provided.
[22]
Reliance
by the learned Regional Magistrate on the Soule case, referred to
supra,
is
misplaced. In Soule, the trial had already been delayed for extended
periods, when the appellant terminated the mandate of the
attorney
appointed by the Legal Aid Board. In
casu,
that was not the case because had
the learned Regional Magistrate allowed the postponement , it would
have been for the first time
he did so.
[23]
The
learned Regional Magistrate over-emphasised the guidelines by the
Chief Justice at the expense of dispensing justice and affording
the
Appellants a fa r trial, as required by the Constitution, which is
the supreme law of this country.
[24]
I,
at this stage, pause to state that, with the view I take of the
matter, it is unnecessary to deal with the merits of the charge.
[25]
Having given consideration to the law and then prevailing
circumstances of the Appellants' case, it
is my view that the Court
a
quo
did not exercise its discretion
properly. As leave to appeal has been granted, by petition, against
both the convictions and sentences
of both Appellants, I reach the
conclusion that the Court a quo had misdirected itself and committed
a fatal irregularity by allowing
the trial to proceed whilst the
Appellants were legally unrepresented. As a result, such misdirection
amounted to a failure of
justice.
[26]
I
propose that the following order be made:
26.1
The appeal is upheld and the convictions
and sentences impose d pursuant thereto are set aside.
26.2
The concomitant order declaring both
Appellants unfit to possess firearms is similarly set aside.
M.D. MOHLAMONYANE
[Acting Judge of the High Court of
South Africa,
Gauteng Division, Pretoria]
I
agree.
J. W. LOUW J
[Judge of the High Court of
South Africa,
Gauteng Division , Pretoria ]
APPEARANCES:
For
the Appellants
:
Mr M.
B. Kgagara
For
the Respondent
:
Adv GJC
Moritz