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[2016] ZAFSHC 15
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S v Mafika (236/2015) [2016] ZAFSHC 15; 2016 (1) SACR 623 (FB) (4 February 2016)
IN THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Review no: 236/2015
In
the review between:
THE
STATE
and
THABA
MAFIKA
CORAM:
VAN ZYL, ADJP et EBRAHIM, J
JUDGMENT
BY:
EBRAHIM, J
DELIVERED
ON:
4 FEBRUARY 2016
[1]
This is a review in terms of
section 304(4)
of the
Criminal Procedure
Act 51 of 1977
. The accused was charged with 2 counts of
housebreaking with intent to steal and theft. At the plea stage
of the proceedings
he informed his legal representative he was
unaware of one of the charges against him. It appears that this
led to a conflict
arising between them as the accused refused to give
instructions to his legal representative in regard to that charge.
As
a result the said legal representative withdraw from the matter
due to lack of proper instructions.
[2]
The presiding magistrate went ahead and insisted on the charges being
put to the accused who refused to plead and requested
that his trial
be adjudicated before another magistrate. The magistrate noted
a plea of not guilty in respect of both charges
and proceeded to act
in terms of section 115 of the Criminal Procedure Act 51 of 1977 (as
amended).
[3]
The accused’s response was as follows:
“
Die
Hof is teen my want ek het gevra dat die saak voor ‘n ander hof
….
want daar
is aspekte wat ek nie verstaan nie en
die
klagtes teen my is gelê … ander persone gearresteer en
die polisie het die persone laat gaan …”
(Record
page 2, line 1 – 5)(the underlining is mine)
Despite
the accused’s objections the magistrate instructed the
prosecutor to proceed with the state case. In his judgment
on
the merits he provides the following reason for adopting this stance:
“
Dit
was vir die hof duidelik dat die beskuldigde nie ‘n probleem
het met die prokeur nie, maar dat hy sê dat hy weier
om verhoor
te word op ‘n spesifieke aanklag. ‘n Ander
prokureur sou nie die saak verander het nie.”
(Record,
page 58, lines 20-23)
[4]
The trial was finalised with the accused appearing in person, despite
his request for legal representation. At page
14 of the
record lines 22 – 23 the accused advised the presiding
magistrate:
“
I
am asking for a lawyer. I cannot represent myself.”
This
occurred after the state had led the evidence of the complainant on
the second housebreaking charge, which was the charge the
accused had
objected to at the outset of the trial. When called upon to
cross examine the witness, the accused informed the
magistrate he was
unable to do so as he did not have the required experience.
Once
again the magistrate refused the accused the opportunity to obtain
legal representation. The following exchange then
ensued:
“
Hof
:
Ons gaan voort met die saak, u kry ‘n
geleentheid om die getuie
te kruisondervra, dit beteken dat waarmee u nie saamstem nie moet u
betwis. U kan dit doen by wyse
van vrae en stellings aan die
getuie. As u dit nie doen nie dan gaan die hof aanvaar dat u
met sy getuienis saamstem.
Dan kan u nie later argumenteer of
betoog dat hy nie die waarheid gepraat het nie.
Accused
:
I am not educated. I cannot represent myself.
Hof:
Meneer het u dan geen vrae nie?
Accused:
If I was educated I would …
had some questions, but unfortunately I am uneducated. I don’t,
I cannot, I am not
able to ask questions.”
[5]
After each witness for the state testified the presiding magistrate
explained the accused’s rights of cross examination
to him.
The accused made no effort to respond to the magistrate’s
explanation at all. The following extracts
from the record of
the trial proceedings demonstrates this:
5.1 At page 8, line 6 – 20:
“
Nou
meneer, het u die getuienis van die getuie gehoor en verstaan?
BESKULDIGDE:
…
HOF:
Geen antwoord. Meneer, u kry
nou geleentheid o die getuie te kruisondervra. Dit beteken dit
waarmee u nie saamstem nie
moet u betwis en u kan dit doen by wyse
van vrae en stellings aan die getuie. As u dit nie doen nie
gaan die hof aanvaar
dat u met haar getuienis saamstem. Dan kan
u nie later argumenteer of betoog dat sy nie die waarheid gepraat het
nie.
Verstaan u dit?
BESKULDIGDE:
…
HOF:
Beskuldigde staar net voor hom uit,
gee geen antwoord nie. Meneer, ‘n laaste keer. Is daar
enige vrae?
BESKULDIGDE:
…
HOF:
Beskuldigde swyg. Dankie
mevrou, u kan maar afstaan.”
5.2 At page 14, lines 14 – 25,
page 15, lines 1 – 2, page 15, lines 8 -14:
“
HOF:
Meneer, het u die getuienis van die getuie gehoor en verstaan?
ACCUSED:
…
HOF:
Meneer, het u die getuienis van die
getuie gehoor en verstaan?
ACCUSED:
…
HOF:
Staan op meneer. Meneer, het u
die getuienis van die getuie gehoor en verstaan?
ACCUSED:
I am asking for a lawyer. I
can’t represent myself.
HOF:
Meneer, ons het reeds by die begin
met die aanvang van die saak die situasie met betreking tot die
prokureur uitgeklaar. Ons
gaan voort met die saak. …
ACCUSED:
I am not educated. I cannot
represent myself.
HOF:
Meneer, het u dan geen vrae nie?
ACCUSED:
If I was educated I would …
(indistinct) had some questions, but unfortunately I am uneducated.
I don’t, I cannot,
I am not able to ask questions.
HOF:
Any re-examination.”
5.3 At page 8 lines 11 – 22:
“
HOF:
Nou meneer, het u die getuienis van die getuie gehoor en verstaan?
BESKULDIGDE:
…
HOF:
Beskuldigde swyg. U kry die
geleentheid om die getuie te kruisondervra. Dit beteken dat
waarmee u nie saamstem nie moet
u betwis. U kan dit doen by
wyse van vrae stellings aan die getuie. As u dit nie doen nie
gaan die hof aanvaar dat
u met sy getuienis saamstem. Dan kan u
nie later argumenteer of betoog dat hy nie die waarheid gepraat het
nie. Verstaan
u dit, het u vrae?
ACCUSED:
…
HOF:
Beskuldigde swyg.”
5.4 Page 26, lines 13 – 16 and
line 21 – 22; page 27, line 9:
“
HOF:
Meneer het u die getuienis van hierdie getuie gehoor en verstaan?
BESKULDIGDE:
Ja.
(The magistrate goes on to explain to the accused his
rights of cross examination)
HOF:
Verstaan u , het u vrae?
BESKULDIGDE:
Ja, dit is ‘n ander saak.
Ek het vrae hierso.
(The accused proceeds to ask one question.)
HOF:
Nog vrae?
BESKULDIGDE:
No further questions, your worship.”
5.5 Page 32, lines 22- 24; page 33,
lines 1 – 4:
(The
accused’s rights of cross examination are explained)
Lines
5 – 9:
“
KRUISONDERVRAGING
DEUR BESKULDIGDE:
Ek kan dit nie betwis nie. I cannot deny it when it is said
that these are my fingerprints because I cannot
see it.
HOF:
Is dit al?
BESKULDIGDE:
Ja”
5.6 Page 37, lines 8 -17:
“
(Accused’s
rights of cross examination explained by the magistrate)
Page
37, lines 18 -19:
“
CROSS
EXAMINATION BY ACCUSED:
I do understand, but I do not have questions for this witness.”
5.7 Page 42, line 6 – 9:
“
ACCUSED:
Your worship, concerning the second count I have been requesting
my
lawyer.
HOF:
Ja meneer, daardie aansoek is reeds
van die hand gewys. U kry ‘n geleentheid om die getuie te
kruisondervra.”
Line
15 – 22:
“
ACCUSED:
Your
worship, it is my right to get a lawyer, to be given a lawyer.
HOF:
Meneer, ek het daardie versoek van u
reeds hanteer. Vir die laaste keer, is daar enige vrae aan
hierdie getuie?
ACCUSED:
I did not undertand your worship when
you forbid me the opportunity to get a lawyer while I still need that
lawyer.
HOF:
Goed, daar is geen vrae van die
beskuldigde se kant nie.”
[6]
On convicting the accused of both counts of housebreaking the
presiding magistrate referred the matter to the regional court
for
the imposition of sentence in terms of section 116(1)(b) of Act 51 of
1977. The regional magistrate allocated the case
was of the
opinion that the accused had not been given a fair trial because he
had been denied his constitutional right to legal
representation as
embraced by the provisions of
section 73(2A)
and (2B) of the
Criminal
Procedure Act 71 of 1977
. The matter was accordingly forwarded
to this court for special review in terms of
section 304(4)
of the
Criminal Procedure Act, 71 of 1977
.
[7]
The extracts of the record quoted reflect an arrogance on the part of
the presiding magistrate vis-à-vis the accused
as well as an
authoritarian stance in taking a summary decision not to afford the
accused any opportunity to obtain legal assistance.
In
S
v Radebe; S v Mbonani
1988 (1) SA 191
(T)
Goldstone J referred at 195B to:
“…
a general duty on the part of
judicial officers to ensure that unrepresented accused fully
understand their rights and the recognition
that in the absence of
such understanding a fair and just trial may not take place.”
At
196 F – I, he added:
“
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 a 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 or the absence of the
suggested advice to an accused
person 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.”
[8]
An accused’s right to legal representation was recognised as
fundamental to his right to a fair and just trial long before
the
enactment and coming into operation of the Constitution. See
S
v Seheri en Andere
1964 (1) SA 29
(A);
S
v Shabangu
1976
(3) SA 533
(A). It is now, since the advent of the new
constitutional dispensation imperative that an accused person should
be informed
promptly of his rights in terms of section 35(3)(e)(f)
and (g) which provides:
“
Every
accused person has a right to a fair trial which includes the right:
…
(e) to be
represented when being tried;
(f) to choose, and be
represented by a legal practitioner, and to be informed of this right
promptly;
(g)
to have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial
injustice would otherwise
result, and to be informed of this right promptly.”
[9]
9.1 In the case of a self-confessed unlettered, and unsophisticated
person such as the accused the dictum of the United States
Supreme Court in
Powell
vs Alabama
287
US 45
(1932) at 68 – 29 comes to mind:
“
Even
the intelligent and educated layman has small and sometimes no skill
in the science of law. If charged with a crime, he is
incapable,
generally, of determining for himself whether the indictment is good
or bad. He is unfamiliar with the rules of evidence.
Left without the
aid of counsel, he may be put on trial without a proper charge, and
convicted upon incompetent evidence, or evidence
irrelevant to the
issue or otherwise inadmissible. He lacks both the skill and
knowledge adequately to prepare his defence, even
though he have a
perfect one. He requires the guiding hand of counsel at every step in
the proceedings against him. Without it,
though he be not guilty, he
faces the danger of conviction because he does not know how to
establish his innocence.”
9.2
How much more apt and applicable must those remarks be in the
accused’s case? Not even his direct appeal to the
presiding magistrate’s apparent sense of fair play, by
repeatedly alluding to his lack of legal expertise and his feeling
of
impotence in the conduct of his defence on his own without the
assistance of a lawyer as well as his need for a lawyer to bring
proper legal skills to bear in the presentation of his case had any
effect whatsoever in jolting the magistrate out of his state
of
anaesthesia as regards the accused’s fundamental right to be
legally represented. Despite repeated requests from
the accused
the magistrate ignored the constitutional imperatives contained in
section 35, and dispassionately proceeded to inform
the accused of
his rights of cross examination, well knowing that the failure of the
accused to challenge the state case rested
squarely on his refusal to
allow the accused an opportunity to obtain someone legally qualified
to assist him to properly prepare
and conduct his defence. Nor
was the accused informed at any time during the trial of his right to
apply for legal aid,
Had he obtained the assistance of a legal
representative, with knowledge and expertise to properly cross
examine the state witnesses
the outcome of the trial might well have
been different.
[10]
The failure by the magistrate to accord to the accused these
fundamental rights to which he was entitled constituted a gross
irregularity in the proceedings such as to amount to a failure of
justice. The accused, in my view, was not properly tried.
He was, in fact, deprived by the magistrate of a fair trial.
The magistrate’s refusal to allow the accused the opportunity
to obtain the services of a legal representative was calculated to
prejudice the accused in the conduct of his defence and did
in fact
do so. The accused informed the magistrate that he was not in a
position to properly and adequately cross examine
the state witnesses
so as to elicit evidence which he considered necessary to establish
his defence and/or his innocence.
The deprivation of the
services of a legal representative for the accused was fundamental
and resulted in the trial proceedings
being vitiated by
irregularity. It was essential for the presiding magistrate to
stop the proceedings at the very outset
of the trial when the accused
refused to plead without legal assistance. He did not do so but
proceeded to hear evidence
prejudicial to the accused, whilst at the
same time ignoring the accused’s pleas for legal assistance.
The charges
levelled against the accused were serious with severe
consequences for the accused upon conviction. In these
circumstances
the irregularity was fatal and a failure of justice
occurred.
[11]
The convictions are set aside and the matter is remitted to the
magistrate, Bloemfontein for the trial to be commenced
de
novo
before a
different magistrate. In passing I wish to express my
appreciation to the office of the Director of Public Prosecutions,
Bloemfontein for the very helpful opinion written by Advocate Giorgi
in response to my request therefor.
_____________
S. EBRAHIM, J
I concur.
________________
C. VAN ZYL, ADJP
/eb