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[2016] ZAGPPHC 56
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Tjale v S (A265/15) [2016] ZAGPPHC 56 (26 January 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
26/01/2016
CASE NUMBER A 265/15
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MALESELA
FRANS
TJALE
APPLICANT
and
THE
STATE
RESPONDENT
JUDGEMENT
AC
SASSON, J
[1]
The applicant, a 22-year-old male was charged with the offence of
rape and was tried in the Mankweng regional court for the
contravention of
section 3
of the
Criminal Law (Sexual Offences and
Related Matters) Amendment Act, 32 of 2007
together with a
co-accused. The applicant was tried as accused number 1. Accused
number 2 is not party to the present proceedings.
[2]
The applicant was convicted as charged and sentenced to life
imprisonment in terms of section 51(1) of the Criminal Law Amendment
Act, 105 of 1977.
[3]
The applicant now approaches this court in terms of Rule 53 of the
Uniform Rules of Court with an application to have the proceedings
in
the court
a quo
reviewed and set aside.
[4]
According to the applicant various irregularities occurred during the
course of the trial which warrants this court to set aside
the
proceedings in the court
a quo.
From the record it appears
that both accused - the applicant (accused number 1) and accused
number 2 were represented by the same
legal representative from Legal
Aid South Africa (cited as the 3rd respondent in the review
application). This, the applicant submitted
constitutes a serious
irregularity as his legal representative must have been aware of the
existence of a serious conflict of interest
between the applicant and
accused number 2. In elaboration the applicant explains in his
affidavit that he did in fact admit in
his warning statement
to the police that he did have sexual
intercourse with the complainant but
that he did so because he was
threatened with a firearm by accused number 2. Accused number 2's
defence, on the other hand, was
one of a complete denial. It was
accordingly submitted that a serious conflict existed between the two
accused and that in these
circumstances they therefore could not be
represented by the same legal representative. This, so it was
submitted, constitutes
a gross irregularity and warrants the setting
aside of the conviction and sentence of the applicant.
[5]
At the commencement of the trial the applicant entered a plea of not
guilty. Whilst the complainant was still being cross-examined,
the
legal representative on behalf of the applicant informed the court
that the applicant wished to change his plea from one of
not guilty
to one of guilty and that she had had drafted a section 112(2)
statement which she proceeded to read into the record.
It appears
from the record that the contents of the statement were interpreted
to the applicant. When the presiding magistrate
enquired from the
applicant whether he agreed with the statement, he responded by
saying that it was not in accordance with the
initial statement that
he had made to the police and that he therefore disputed the contents
of the statement. The legal representative
on behalf of the applicant
explained to the court that when she drafted the section 112(2)
statement she did not merely copy the
contents of the warning
statement. She further indicated that she wished to withdraw as the
attorney of record in light of the
applicant's view that the
statement read into the record was not his statement. Without
enquiring from the applicant why he disagreed
with the content of the
statement, the court granted the legal representative an opportunity
to consult with the applicant. When
the trial resumed the legal
representative informed the court that she had explained to the
applicant how she drafted the section
112(2) statement and that they
went through the warning statement that he gave to the police. She
then requested the court to enquire
from applicant whether he wished
to proceed with his plea. Again, without questioning the applicant,
the court merely enquired
from the applicant whether he wished to
confirm or dispute the contents of his statement. The applicant
responded by saying that
he confirmed the statement. The court then
required that both applicant and the third respondent sign the
statement.
[6]
In his affidavit, the applicant explains that he
instructed his legal representative to change
his
plea to one of guilty on the charge of rape in light of what is
contained in his warning statement and because he was under
the
impression that a plea of guilty would eventually lead to a lesser
sentence imposed on him. He further explains that he was
under the
impression that the fact that he was threatened at gunpoint by
accused number 2 to have sexual intercourse with the complainant,
would be conveyed to the court. He also states that he did not know
that a plea of guilty would be inconsistent with the fact that
he was
threatened at gunpoint. He further explains that, although he
confirmed the contents of the statement in court and although
he had
signed the statement, he was still under the impression that the
court was aware of the fact that he was threatened at gunpoint
to
have sexual intercourse with the complainant.
[7]
Unfortunately the warning statement does not form part of the record
before this court as it cannot be found. The court is therefore
not
in the position to compare what is contained in the warning statement
to what is contained in the section 112 statement. It
does, however,
appear from the record that the legal representative was in
possession of the police docket containing the warning
statement and
that she was in possession thereof when she later drew up the section
112 statement changing the plea of the applicant
from one of not
guilty to one of guilty.
[8]
The fact that the applicant had a possible defence (as being alleged
now in his affidavit in the Rule 53 review application),
was also not
raised during the proceedings. What the applicant does state in his
affidavit is that he did indeed convey these facts
to the legal
representative who then advised him to plead not guilty to the charge
(which he initially did).
[9]
On behalf of the respondent it was submitted that, although it is
conceded on behalf of the Sate that the irregularities referred
to by
the applicant did indeed occur, the State was of the view that the
concession that irregularities occurred does not result
in the
inference that the trail was unfair.
[10]
The test to be applied is whether the irregularity (or in this
instance irregularities) is so fundamental, that it amounts
to a
failure of justice. If the irregularity is so fundamental that it
nullifies the proceedings, the proceedings should be set
aside.
[11]
Although the evidence of the complainant, at least up until the stage
when the proceedings were interrupted by the entering
of a plea of
guilty, does not support the allegation that the applicant was
threatened at gunpoint to have sexual intercourse with
her, there are
indications on the record that the applicant may have conveyed these
facts to the police and that it is contained
in the warning statement
to the police: Immediately after the section 112 statement was read
into the record, the applicant stated
that this statement was not in
accordance with his initial statement.
[12]
I am in agreement with the submission that, at the very least, the
court a
quo
ought not to have admitted the statement and
should not have accepted the plea of guilty without first having
establishing exactly
what the applicant's objection was and why he
was not satisfied with the statement. The presiding magistrate merely
proceeded to
ask the applicant whether he confirmed or disputed the
statement despite the fact that the applicant explicitly stated that
he
was not satisfied with the statement. In this regard I am in
agreement with the submission that the fact that the applicant never
had an opportunity to put his version to the trail court resulted in
the court a
quo
never considering his version of having been
threatened at gunpoint to have sexual intercourse with the
complainant. On the face
of it, had these facts been conveyed to the
court, the presiding magistrate may well have decided that the
applicant's version
discloses a possible valid defence to the charge.
Consequently, the fact that he was not afforded an opportunity to
place this
version before the court resulted in him not receiving a
fair trial.
[13]
A further irregularity occurred in the trail when sentence was
imposed on the applicant. It is clear from the pre-sentence
report
that the applicant informed the probation officer that he was
threatened at gun point by accused number 2. A disconcerting
fact is
that the pre-sentence report reveals that the complainant herself
informed the probation officer that accused number 2
instructed the
applicant to rape her and that accused number 2 proceeded to rape her
when the applicant defied the order. She informed
the probation
officer that accused number 2 thereafter took his firearm and ordered
the applicant to rape the complainant.
[14]
If the content of the pre-sentencing report is considered (although I
am mindful of the probative value of the report) it does
appear that
it affords some credence to the applicant's version that he was
forced to have sexual intercourse with the complainant.
At the very
least, the presiding magistrate should, at that stage of the
proceedings, have stopped all proceedings and should forthwith
have
had the record remitted for a special review to this court. This was
not done.
[15]
In light of the aforegoing it cannot therefore in my view be
concluded that the applicant had received a fair trial.
[16]
In the result the following order is made:
1.
The conviction and sentence imposed by the court
a
quo
is set aside.
2.
The matter is referred to the Director of Public
Prosecutions for a decision on whether to prosecute the matter
de
nova.
_________________________
AC SASSON
JUDGE OF THE HIGH COURT
I
concur
___________________________
HJ DE VOS
JUDGE OF THE HIGH COURT