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[2013] ZAFSHC 77
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S v Mahooa (79/2013) [2013] ZAFSHC 77 (16 May 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 79/2013
In
the review between:
THE
STATE
versus
THEBE
JOHN MAHOOA
_____________________________________________________
CORAM:
KRUGER, J
et
LEKALE, J
_____________________________________________________
JUDGMENT BY:
LEKALE, J
DELIVERED ON:
16 MAY 2013
_____________________________________________________
[1] On 28 February 2013
the accused appeared before the Magistrates’ Court at
Bothaville on a charge of assault with intent
to cause grievous
bodily harm. At the commencement of the proceedings the public
prosecutor informed the court that the accused
was conducting his own
defence and the trial proceeded accordingly.
[2] The accused tendered
a plea of guilty which was later changed to not guilty in terms of
section 113 of the Criminal Procedure
Act (the CPA).The State,
thereupon, called its first witness and, during her testimony in
chief, a legal representative attached
to Legal Aid South Africa
interrupted the proceedings pointing out that she was assigned to
represent the accused.
[3] The proceedings were,
thereupon, adjourned and the learned magistrate sent the matter on
review pointing out that:
“
In view
of the fact that the court in this instance has a doubt as to the
correctness of the proceeding where the matter was proceeded
with in
the absence of the accused legal representative, I would like to
forward the record to the Reviewing Judge in terms of
section 304A
of
the
Criminal Procedure Act 51 of 1977
that the Honourable Judge make
an order:
That the legal representative be
given an opportunity to go through the record and be allowed to
start her cross-examination and
proceedings be continued if that
would not prejudice Mr. Mahooa, or
Make an order that the proceedings
be stopped and the matter to start
de novo
before
another magistrate.
”
[4]
Section 304A
of CPA
can only be invoked after a conviction and before a sentence is
imposed. In the instant matter there is no conviction and,
as such,
the review machinery of
section 304A
of CPA is not available. (See
S
v Engelbrecht and Others
[2005] ZAWCHC 11
;
2005 (2) SACR 383
(C) at 384i –
j.)
[5] The aforegoing is,
however, not the end of the enquiry because, in circumstances where
grave injustice may result unless the
Review Court exercises its
inherent powers , such a court does not hesitate to intervene in the
middle of the proceedings (
in medias res
). The question is,
therefore, whether or not the circumstances of the present matter are
such that a gross injustice may ensue
if this court does not
intervene
.
(See
Ishmail and Others v Additional
Magistrate, Wynburg and Another
1963 (1) SA 1
(A) and
S
v Burns
1988 (3) SA 366
(C).)
[6] The practice, where
the accused engages the services of a legal representative
in
medias res
after voluntarily flying solo with full knowledge of
his right to legal representation, is for the newly employed legal
representative
to be allowed to qualify herself for trial by perusing
the record in order to represent the accused effectively and
properly. A
close perusal of the record reveals that on 21 November
2012 the accused elected to be provided with a legal practitioner at
State
expense. It is, further, not apparent
ex facie
the
record that the trial court invited the accused to confirm the
prosecutor’s
ipse dixit
to the effect that he was
conducting his defence and that he, in fact, did confirm the same.
[7] An accused person has
a constitutional right to a fair trial which includes the right to
legal representation. In proceeding
with the trial without the
accused’s legal representative despite his clear election the
trial court, effectively, and inadvertently
violated his fundamental
right to a fair trial and, thus, committed an irregularity so gross
as to vitiate the proceedings (See
section 35(3)(f) of
The
Constitution of Republic of South Africa 1996
(the
Constitution) and generally
S v Pitso
2002 (2) SACR 586
(O).)
[8] The admissions made
by the accused in his plea remained after the guilty plea was changed
in terms of section 113 of the CPA.
Such admissions would clearly
prevent the legal representative from operating on a clean slate when
she undertakes the accused’s
defence and are, thus, likely to
impede, unfairly, the accused’s proper and effective
representation. Grave injustice may,
therefore, result. (See proviso
to section 113 subsection (1) of CPA.)
ORDER
[9] In consequence the
proceedings are set aside.
[10] The matter is
remitted to the Bothaville Magistrates’ Court for trial
de
novo
before another magistrate.
_____________
L.J. LEKALE, J
I concur.
____________
A. KRUGER, J
/spieterse