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[2017] ZAFSHC 201
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S v Sokoi (R75/2017) [2017] ZAFSHC 201 (10 August 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: R75/2017
In
the matter between:
THE
STATE
Applicant
and
MOLIFI
SOKOI
Respondent
CORAM:
LEKALE,
J
et
MBHELE,
J
JUDGMENT
BY:
LEKALE, J
DELIVERED
ON:
10 AUGUST
2017
REVIEW
JUDGMENT
SUMMARY:
Criminal Procedure and Bill of Rights-Abuse of right to legal
representation Whether or not right
abused depends
on
reason advanced for termination of representative's
mandate.
Right substantial in nature and
contemplates representation
by representative
with full and proper instructions to ensure that accused person gets
fair trial. Accused to be afforded opportunity
to furnish reasons for
termination of mandate or for withholding Instructions
before
representative
Is
excused
from
proceedings.
BACKGROUND
AND INTRODUCTION
[1]
On 4 August 2016 the accused Mr Sakai,
who was not legally represented following the withdrawal of his
attorney, appeared before
the Magistrates' Court at Bloemfontein as
accused number
two
together
with another accused person on a charge of housebreaking with intent
to steal and theft and was found guilty as charged.
He was,
thereafter, sentenced to ten (10) months imprisonment.
[2]
The matter, thereafter, served before
Ramdeyal, AJ in this division on review in the ordinary course
as provided by Section
302 of the Criminal Procedure Act 51 of
1977(the CPA) and she directed a query in,
inter
alia,
the following terms to the
trial magistrate:
“
4.
Section 35 (3) of the Constitution
of the Republic
of
South Africa 1996 specifically makes reference to an accused person's
rights to a fair trial including his right legal representation.
5.
Were the accused person's rights
not infringed by
him
being
"forced" by the Magistrate to conduct his own defence
bearing in mind that he constantly required legal
representation?”
[3]
The learned Magistrate has gratefully
since responded as follows, among others:
“
3.
The
Court
takes
cognisance of
the
provisions
of
the
section
so
cited. The court dealt extensively with this aspect in its judgment
from page 219 at paragraph [20] until
page 223 at paragraph [20]. The court is
well aware that her honourable judge is familiar
with
this passage from S v Shaik
[2007] ZACC 19
;
2008 (2) SA
208
at para
[43]
but for easy reference same willbe quoted.
.
..
My further submission
on this specific point can be supported by my attitude towards the
accused throughout the entire proceedings.
The accused was treated
with the necessary courtesy and respect deserved by all parties
before a court of law.
5.
The Court although accepts that in
retrospect it may appear that the
accused person's right to legal
representation
may
have been infringed, but in truth an(sic) in fact that was not the
case
.
the
accused simply abused his right to be legally represented as he would
have legal aid and along the way just simply wanted to
conduct his
own and
then
again wants
legal aid.
this
is
something that
is well documented from the
entire record of the proceedings. even
on the trial
date
a different legal aid practitioner was in court and confirmed that
she was ready to proceed but the attitude of the accused
was simply
not to get the case started. it can be pertinently seen
In page
2
paragraph [10] of the record.
the
court
even at some stage long before the trial started invoked the
provisions of section 342 A of the criminal procedure act since
in
order to investigate and eliminate those unreasonable delays caused
by
the
accused
persons.
I therefore requested
the Honourable Judge on review to make the following order:
(a)
Confirm
both
the
conviction
and
the
sentence imposed, or
(b)
Make
an
appropriate
order
under
the
circumstances.”
[4]
The matter is now before us for
finalization of the automatic review
.
As
correctly conceded by the trial Magistrate the sentence has already
been fully served
and
the record was only received
by
the
Registrar
of
this
Court
on
7
June
2017.
The
delay in dispatching the record has
,
however, been adequately
and
satisfactorily explained by
the Magistrate who attributes the same to the transcribers as well as
the fact that the record was returned
to them on at least three
occasions due to incomplete transcriptions.
SALIENT
FACTUAL POSITION
[5]
A perusal of the record reveals, as
correctly noted by the trial court in his judgment, that the accused
and his co-accused first
appeared in the Reception Court on the 1st
of September 2014 and their rights to legal representation were
explained,
whereupon, the accused elected to apply for assistance
from Legal Aid SA. The matter was first received by the trial court
for
plea and trial on 13 January 2015, whereupon, the accused's right
to legal representation was once again explained and he opted
for
assistance by
Legal
Aid
SA.
The
matter was,
thereafter, postponed on numerous
occasions for reasons unrelated to the accused's legal representation
until 16 April 2015 when
the accused terminated the mandate of his
Legal Aid SA provided representative
electing
to
conduct
his
own
defence.
[6]
On 25 April 2015 the matter could not
proceed to trial as one of the accused had a new private attorney
while the accused still
appeared in
person. On
26 June 2015 the trial court determined,
in terms of section 342 A of the CPA, that the unreasonable delays
involved in the finalization
of the matter were attributable to all
the accused. On 23 July 2015 the accused's newly provided legal
representative withdrew
from the matter on the basis that the accused
refused to give her instructions
although
she, on her part, was
ready to proceed with the trial. The trial court excused the relevant
legal representative from the proceedings
and directed that the trial
was to proceed without the accused being legally represented
notwithstanding his protestations and
explanation of the differences
between him and the legal representative in question.
[7]
The trial, thereafter, proceeded with
the accused refusing to plead and the trial court entering a plea of
not guilty on his behalf
in terms of section
109 of
the
CPA. The accused
refused
to participate in the proceedings by declining to cross examine
the first two witnesses called
by the
State. On 22
October
2015, when the State was about to call a
third witness, the accused placed on record that he was not feeling
well and, further,
enquired after the whereabouts of an attorney who,
according to him, was supposed to consult and represent him
in
the proceedings on Legal Aid
South Africa's
brief.
The
trial
court entertained his concerns about his
ill health but refused point blank to allow him an
opportunity to acquire or
consult a legal representative pointing out
that the accused would not be allowed to abuse the right to legal
representation by
changing attorneys provided
by
Legal
Aid
SA
"left,
right
and
centre."
[8]
On 26 November 2015, when the trial
resumed after an adjournment following the accused's indisposition,
the accused once again informed
the trial court that he had secured
another legal representative from Legal Aid SA but the court rejected
the idea effectively
reiterating that the
status
quo ante
would prevail until the
trial was finalised. The matter, thereafter, proceeded to
finality with the accused participating to the extent of even
testifying in his defence and in mitigation of sentence.
APPLICABLE
LEGAL POSITION
[9]
It is true that the right to a fair
trial, which is conferred on every accused person by the Constitution
of the Republic of South
Africa, 1996 (The constitution), includes
the right to legal representation as well as the right to have their
trial begin and
conclude without unreasonable delay. (See
Section
35 (3)(d);
(fl
and
(g) of the
Constitution).
[10]
It
is
equally
correct
that
in
the
words
of
the
Constitutional
Court
"the
right to a fair trial requires a substantive, rather than a formal or
textual approach. It is clear also that fairness
is not a one-way
street conferring an unlimited right on an accused to demand the most
favourable possible treatment
A fair trial also requires
-
fairness
to the public as represented by the State. It has to instil
confidence
in
the
criminal justice system with the public, including those close to the
accused, as well as those distressed by the audacity and
horror of
crime. (See
S v Shaik and
others
supra
at paragraph
[43])"
[11]
Failure to advice an accused person of the right to request a
postponement and, thus, allowing her an opportunity to acquire
the
services of another legal representative after her attorney withdrew
constitutes gross irregularity insofar as she is, as such,
given no
choice and opportunity as to the exercise of her constitutional right
to legal representation. It in fact, amounts to
failure of justice in
the context of section 322 (1) of the CPA.
(See
Mafongosi
v Regional Magistrate Nel
&
Another
[
2007]
JOL 20706
(Ck) and
S v Shaik
&
others
supra
par [44]
[12]
In the context of the doctrine of abuse
of rights
"[o]ne of several
meanings of the term ..abuse of rights" provides that
there is an abuse of right when the
exploitation of an
individual right injuriously affects the interests of the
community." (See
Abuse of
Rights: An Old Principle, A New Age
by
Michael Byers (2002) 47 McGill L. J. 389)
APPLICATION
OF LEGAL POSITION AND FINDINGS
[13]
It is not inconceivable that an accused
person may abuse the right to legal representation by changing legal
representatives
"left, right and
centre"
as found by the trial
court without just cause for the purpose of delaying commencement or
finalisation of the trial
in
the hope that witnesses would simply
lose interest or die in the process and, thereby, compromise and
frustrate the interests of
justice
.
[14]
It is, however, equally conceivable that
an accused person may have sound reasons for moving from one legal
representative to the
other all with the view to ensure that his
rights are well protected and
he,
as such, gets a
fair
trial.
[15]
It is, further, possible that an accused person, who initially
elected to conduct his own defence, may, in the course of the
trial
and when the going gets tough, decide to enlist the services of a
legal practitioner either because he wants to delay the
process
maliciously or because he simply needs expert assistance in the
process in order to ensure that he gets a fair
trial. The question as to whether or not the accused person in the
context of the
instant matter abused the relevant right depends, in
my view, on the answer to the question whether or not he terminated
the services
of the relevant legal practitioners and, if so, whether
or not he had good cause for
doing
so
.
[16]
The answers to the preceding questions are apparent
ex
facie
the judgment of the trial
court as well as the record
.
According
to the trial court the accused terminated the services of his first
legal representative
because
they could
not
understand each
other due to language differences. He,
thereafter, elected to conduct his own defence but before the trial
could commence he secured
another legal representative, once again
through Legal Aid SA, with whom he could communicate without any
hiccups
.
The
practitioner in question, however, withdrew on the morning of the
trial because she could not get instructions from the accused.
A look
at the record reflects that the practitioner in question was excused
from
the
proceedings without
the
accused
being afforded an opportunity to consent to and confirm the reasons
advanced by
the
relevant practitioner for
the
withdrawal. Only after she was excused
did the accused give his side of the story without being invited
thereto. It is clear from
the explanation furnished by the accused
that, in his view, there existed no sufficient time for consultation
between him and the
relevant practitioner insofar as the contents of
the docket were only provided to the relevant practitioner on the
morning of the
trial and in the presence of the accused
.
There was
a
need, according to
the
accused, to
consult with his representative at the
Correctional Centre. The trial
court,
however, rejected his explanation holding that he decided for
the practitioner that the latter was not ready for trial when, in
fact, the practitioner had informed the court that she was ready. The
practitioner could, obviously, not have been ready for trial
when the
accused was refusing to give her instructions.
[17]
In my opinion the accused's version
should have been presented before the practitioner could be excused
in order for her to get
an opportunity to respond thereto all in an
endeavour to get to the bottom of the matter and resolve any possible
misunderstandings
between the two of them. In short the accused did
not terminate the mandate of the practitioner in question but simply
needed
more time to consult with her before the trial
could commence. He insisted on legal representation to the
extent
of refusing to plead and to take the first two witnesses for
the prosecution under cross examination. He sought representation
before the third witness was called but the court maintained that a
ruling had already been made to proceed without any legal
representation
on his part. The witness in question was called in
terms of section 204 of the CPA and was the former accused
number
3 in the matter.
[18]
The accused, in his request for legal
representation, effectively pointed out to the trial court that he
needed a lawyer because
there were discrepancies between the relevant
witness's first statement on which he consulted with his previous
representative
and the second statement which was then in his
possession. The witness in question was an accomplice and the
accused, probably,
needed an expert, in the form of a lawyer, to
assist him in,
inter alia,
proving
previous inconsistent statements against such a witness. It is,
further, possible from his utterances, which were made without
any
clarity-seeking questions from the trial court, that such first
statement was still in the custody of his previous attorney.
[19]
It is clear to me that the accused only
terminated the services of one attorney and had just cause for doing
so insofar as there
existed a language barrier between him and such
representative. He elected to proceed on his own but the trial never
proceeded
during the relevant period. He secured the services of a
second representative before the trial commenced but the latter
withdrew
on the day of the trial. I am, further, persuaded by the
material before the trial court that the accused had good reason to
doubt
that the relevant practitioner was ready to proceed insofar as
the contents of the docket were only secured that morning and she
never consulted with him before that date. As the accused correctly
and effectively pointed out to the trial court, his liberty
was
at stake and it was necessary that he developed trust and confidence
in his representative.
[20]
Such confidence and trust, in my
opinion, needed to be cultivated and nurtured through proper
consultations between attorney and
client, in the comfort and privacy
of the attorney's office or at a place regarded as familiar and
private enough by the accused
such as the Correctional Centre which
was his place of abode at the relevant time. Meeting and consulting
with one's lawyer for
the very first time along court corridors
or in the holding cells on the morning of the trial can hardly
inspire one with confidence.
It
has the reasonable potential to create the impression, right or
wrong, in the mind of an accused person that the lawyer has little,
if any, interest in the matter regard being had to failure on her
part to make time to consult the accused, as her client, in time
to
prepare. Substantive approach to
the right to a fair
trial,
within the contemplation of
S
v Shaik and Others
(supra)
reveals that the right to legal
representation, as integral part of the right to a fair trial,
is substantial and does not
only allow representation by a
practitioner simply because such a practitioner is academically
qualified and has audience in criminal
courts but, in essence,
ensures that the accused gets a fair trial by securing, if he so
desires, the services of a practitioner
who is well armed to assist
him to get a fair trial. Well-armed, in my view, includes having full
and proper instructions obtained
through proper consultations with
the relevant accused person, all with a view to securing enough
ammunition to ensure that the
latter, as a client, gets a fair
trial.
[21]
All that was required in the
circumstances of the present matter was for the trial court to
explain the situation to the accused,
in consultation with the
relevant practitioner, before the latter could be excused. In this
regard it should be noted that the
accused insisted that he required
the services of the same representative and only needed to consult
with her properly before trial.
Practical experience and common sense
indicate that in most, if not all, cases Legal Aid SA- provided legal
representatives first
have to make deliberate or extra efforts to win
the trust and confidence of accused persons before
they
may hope to get full and
proper
instructions simply because they are not necessarily the
choice of and are often unknown to such accused persons.
[22]
I am, further, convinced that there
existed reason for the accused to desire legal representation before
his former co-accused could
testify in the light of the nature of the
latter's testimony as his former co-accused.
[23]
In my judgment it cannot be said that the accused
was
guilty
of abusing his constitutional right to
legal representation in the circumstances of the instant
matter. His exercise of the
right
in
question was not
unreasonable.
The delay in commencing
the
trial was clearly not attributable to his exercise of that right
regard being had to the fact that it is not apparent
ex
facie
the record that the matter was
ever postponed, in the main, for the purposes of allowing him
legal
representation. On many occasions
the
trial
was postponed because not all of the accused were before the
trial court. It is, further, clear from the record that
the accused
was in custody as at the date of trial following refusal of bail. He
had been so in custody for almost 2 years when
trial was concluded.
In my view it could, therefore, on a balance of probabilities, not
have been easy and comfortable,
to the extent of
being reasonably impossible, for him to decide to delay commencement
and finalisation of the trial
regard being had
to human experience.
[24]
The trial court appears to have been
motivated by the desire to reach finality in the matter regard being
had to the need for expeditious
finalisation of matters of the
present nature, the costs of protracted trials on the
State and the
decision the court had
already
taken in terms of section 342 A of the CPA to the effect that the
matter should proceed to trial without further delays.
The trial
court, thus, failed to strike a healthy balance between the right to
speedy trial and the interests of society, on the
one hand, and the
right to legal representation on the other hand with the result that
he placed undue emphasis on the former to
the prejudice of the
latter. In denying the accused legal representation the trial court,
in fact, committed gross irregularity
which rendered the trial unfair
and, as such, vitiated the proceedings.
[25]
The proceedings were, therefore, not in
accordance with justice and, as such, fall to be set aside. The
accused has already served
the
sentence in
full
and
it would, therefore, not serve any
purpose whatsoever in law and equity to remit the matter to
the trial court.
ORDER
[26]
In consequence the conviction and sentence imposed on accused number
2, Molifi Sokoi are set aside.
__________________
L.J.
LEKALE, J
I
concur
__________________
NM
MBHELE, J