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[2013] ZAKZPHC 18
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Munusamy v Regional Magistrate Port Shepstone and Others (AR 546/11) [2013] ZAKZPHC 18 (16 April 2013)
In the KwaZulu-Natal High
Court, Pietermaritzburg
Republic of South Africa
Case
No : AR 546/11
In
the matter between :
Logasiven
Munusamy
........................................................................................
Applicant
and
The
Regional Magistrate Port Shepstone
.............................................
First
Respondent
Jayshree
Juglal
................................................................................
Second
Respondent
The State
.............................................................................................
Third
Respondent
Judgment
Lopes J
[1] On the 1
st
September 2010 in the Port Shepstone Regional Court the applicant in
this matter was convicted of the crime of rape and sentenced
to
undergo four years imprisonment. It had been found by the court a quo
that on the 16
th
June 2006 he had raped a 17 year old
female.
[2] The applicant then
applied for leave to appeal against his conviction, and
simultaneously sought leave to adduce further evidence.
Both
applications were dismissed by the learned magistrate.
[3] The applicant now
applies to have the criminal proceedings reviewed and set aside. He
does so on two grounds :
that his attorney of
record, Ms Jayshree Juglal, had a conflict of interest, and should
not have represented him;
that his advocate at the
trial, Advocate Viljoen, failed to cross-examine the complainant and
witnesses in that his version was
not put to them, and he failed to
consult with, and call two crucial witnesses.
[4] In my view the first
ground of review has no merit. I say this because :
at the first hearing of
the matter on the 13
th
November 2008, Ms Juglal placed on
record that because the applicant was known to her, she had told the
Legal Aid Board, who
had instructed her, that she could not act for
the applicant;
despite her telling them
that, they again sent her an instruction to act in the matter. On
the 24
th
March 2009 Ms Juglal again told the court what
had happened, recorded that she had discussed the matter with the
applicant, and
said that she had referred the matter to one Advocate
Viljoen who would act in the matter;
on the 30
th
March 2009, Advocate Viljoen appeared for the applicant and recorded
at the outset that he was briefed by Ms Juglal. That statement
was
incorrect. As is clear from the opposing affidavit of Ms Juglal in
the review application, after receiving the second instruction
to
act on behalf of the applicant, she appeared at court and thereafter
contacted the Judicare officer of the Legal Aid Board
in Port
Shepstone and told her of the problem. The Judicare officer told her
that she should seek a colleague to attend to the
matter as a new
appointment would delay the proceedings. Pursuant to that Ms Juglal
obtained the assistance of Advocate Viljoen;
Ms Juglal confirms that
she at no stage played any part in the trial and did not attend the
hearings when evidence was led. The
contents of the police docket
were conveyed to Advocate Viljoen by the prosecutor and she had
nothing to do with that process.
[5] It is clear that what
happened was that Advocate Viljoen thereafter had the conduct of the
matter entirely, as an advocate would
have under the former pro deo
system. As I understand the position, the Legal Aid Board simply
hands the matter over to the advocate
who is then required to deal
with the matter in its entirety, and without the assistance of an
attorney. There is no attorney of
record and no attorney/advocate
relationship as one would normally have in a trial with the attorney
assisting the advocate.
[6] Accordingly, not only
did Ms Juglal not appear or attend at the hearings when evidence was
led, but she played no part in assisting
in the conduct of the trial.
[7] The applicant submits
in his review application papers that Ms Juglal had no authority from
the Legal Aid Board to brief Advocate
Viljoen and it was irregular
for her to have done so. That is dealt with by Ms Juglal in her
affidavit, and there is no basis upon
which this court should not
accept her explanation in that regard.
[8] Accordingly there is
no basis upon which the applicant can suggest that he was prejudiced
in any way by the conduct of Ms Juglal.
[9] The second ground
upon which the applicant seeks to have this court review and set
aside the criminal proceedings is to be found
in the conduct of
Advocate Viljoen. It is common cause that :
at the instance of the
members of the South African Police investigating the matter, two
affidavits had been deposed to, one by
Malanie Moodley and one by
Perumal Nadarajen Moodley. They are married to each other, and
Perumal is the complainant’s
brother. In her affidavit Malanie
recorded that the complainant had told her that she had slept with
the applicant, did not use
protection and was accordingly worried
about falling pregnant, and did not know what to do. She records in
her affidavit that
the complainant did not tell her that she had
been raped. Malanie also says that she went with the complainant to
visit a doctor
a few days later;
the affidavit of Perumal
records that he was never told that the complainant was raped at any
stage. He records that the applicant
is his wife’s cousin. His
affidavit records that the complainant did not want Perumal and
Malanie to disclose to the complainant’s
parents that she had
had sex with the applicant because she was afraid of her father.
Perumal’s stance was that he did
not want to be told later
that he had withheld information from their parents.
[10] In the founding
papers in the review application the applicant stated that these
statements had not been in the possession
of Advocate Viljoen during
the trial, and that was the reason why the witnesses had not been
called to testify to the information
contained therein. He made this
statement on the basis of an affidavit deposed to by Advocate Viljoen
in which he recorded that
he had never been given the statements of
Perumal and Malanie. He said that he had been shown them for the
first time by the applicant’s
attorney on the 13
th
December 2010. He recorded that the ‘witness
statements’ given to him had been handed to him by Ms Juglal.
He also records
that the applicant told him that he had witnesses and
he would ensure that they would come to court. They did not arrive at
court
despite the applicant having attempted telephonically to
contact them. Advocate Viljoen maintains that he closed the
applicant’s
case with his consent after consulting with him. He
records that the applicant agreed that he could close the applicant’s
case without calling his witnesses.
[11] In Ms Juglal’s
opposing affidavit, she records that after receiving the application
papers she approached Advocate Viljoen,
who
confirmed that he had signed his affidavit but had done so ‘
upon
the persistence and harassment of the Applicant’sAttorney
…’
. He then recanted on what he had said in
his affidavit and told Ms Juglal that on returning to his office
after signing the affidavit
he had checked his file and found the two
statements referred to by the applicant – i.e. the affidavits
of Malanie and Perumal.
He had not contacted the
applicant’s attorney ( Mr Morgan, who had obtained his initial
affidavit) because he could not remember
his name, and did not have
his contact details.
[12] What emerges from
the aforegoing is that Advocate Viljoen did, indeed, have in his
possession at all times during the criminal
trial, the two important
affidavits. That he must have done so and that he had read them
appears to emerge clearly from a record
of the proceedings. When
cross-examining the complainant Advocate Viljoen put to her that his
instructions were that Malanie would
come and tell the court ‘
because
she is coming to give evidence’
that the
complainant had told her a long time afterwards that she had slept
with the applicant. It was also put to her that she
was worried that
she might be pregnant. It was also suggested that Malanie would come
and tell the court that the complainant had
gone with her to the
doctor and that the complainant had told the doctor that she had
slept with a boy, without giving details
of that person.
[13] In the trial, and
after the applicant had given evidence in his defence, the learned
magistrate recorded that, on a previous
occasion when the matter was
adjourned (and it is clear from the record that the applicant was not
present at that hearing but
that Advocate Viljoen was present), Mr
Viljoen had recorded that he would conclude the case for the defence.
Mr Viljoen then asked
the learned magistrate if he could approach the
applicant. The learned magistrate agreed, and the record then shows
that he thanks
the magistrate, records that he is indebted to the
court,
and closes the defence case.
[14] The only extent to
which Advocate Viljoen casts any light on what happened after he had
asked the learned magistrate whether
he could confirm that the
defence case could be closed,
is what is recorded
in his initial affidavit. Given the extent to which he has recanted
on that affidavit, I would hesitate to place
any reliance on anything
contained therein.
[15] The position of this
court then is that we do not know what really transpired between the
applicant and Advocate Viljoen. The
applicant records in his founding
papers that he had told Advocate Viljoen that he wanted him to
consult with the two witnesses
and to call them. He said that he had
given Advocate Viljoen their contact numbers and that Advocate
Viljoen had undertaken to
contact them and consult with them. He
further records in his affidavit that on the 1
st
September 2010 (the date on which the defence case was
closed by Advocate Viljoen) Advocate Viljoen had asked him if his
witnesses
were present, he had told Advocate Viljoen that they were
not and Advocate Viljoen had then closed his case. He records that he
could very easily have arranged for them to be present.
[16] This version of
events as testified to by the applicant seems to be wholly
improbable. I say this because the applicant was
present throughout
the criminal proceedings and would have heard Advocate Viljoen
cross-examining the complainant and putting to
her what Malanie would
say. He also knew, as did Advocate Viljoen, that the versions of
Malanie and her husband indicated that
the applicant was innocent of
the crime of rape. Yet the witnesses were not called. There are a
number of possible explanations
for this, but the applicant has not
taken this court into his confidence, and the reasons remain
speculation.
[17] Mr
Morgan
who appeared for the applicant, submitted that the
failure by Advocate Viljoen to consult with,
and
call the two witnesses,
constituted such a
serious irregularity that it vitiated the proceedings and that the
conviction and sentence should be set aside.
[18] Mr
Truter
,
who appeared for the third respondent, the State, submitted that the
matter should be referred back to the learned magistrate
and the
applicant be given leave to call the witnesses. Mr
Truter
submitted that it was a matter of some concern that the
learned magistrate had made a finding of guilty without hearing all
the
available evidence. Two witnesses who made exculpatory statements
to the police did not give evidence on a very material aspect
of the
case. This was because Advocate Viljoen had not made available to the
court the previous inconsistent statements made by
the complainant.
Mr
Truter
submitted
that the court should have exercised its rights in terms of
s 186
of
the
Criminal Procedure Act, 1977
, to subpoena Malanie and her husband
to give evidence.
[19]
S 186
deals with the
powers of a court to subpoena witnesses and states :
‘
The
court may at any stage of criminal proceedings subpoena or cause to
be subpoenaed any person as a witness at such proceedings,
and the
court shall so subpoena a witness or so cause a witness to be
subpoenaed if the evidence of such witness appears to the
court
essential to the just decision of the case.’
[20] It is clear from the
section that the learned magistrate had a discretion to subpoena the
witnesses. If he had considered them
to be essential to the just
decision of the case then he had a duty to call them. However, he
does not appear to have considered
the matter in any way at all, at
least not prior to the giving of judgment.
[21] The problem with Mr
Truter
’
s
argument is that there is no evidence to suggest that the learned
magistrate was aware of the two statements. Hearing what Advocate
Viljoen put to the complainant about what Malanie would say when she
came to give evidence was insufficient to alert him to the
fact that
sworn statements had been made by her and her husband.
[22] The learned
magistrate cannot then be criticised for failing to act in terms of
s
186.
[23] What remains to
consider is whether Advocate Viljoen was so incompetent in his
conduct of the applicant’s defence that
a failure of justice
resulted such as would justify the setting aside of the conviction.
The crucial question is whether Advocate
Viljoen was told by the
applicant that he could close the applicant’s case without
calling Malanieand Perumal. When the applicant
deposed to his
founding affidavit in the review application, he had read, and relied
heavily on the initial affidavit deposed to
by Advocate Viljoen. That
affidavit recorded that Advocate Viljoen was not in possession of the
two statements and it was on that
basis that the applicant relied for
his allegation that there had been an irregularity in the conduct of
the trial. However, that
turned out not to be the case and the
applicant had to change his tack.
[24] Also contained in
the affidavit of Advocate Viljoen was the following :
‘
4
The Appellant did inform
me that he had witnesses. He stated that he would get them to come to
court. They did not arrive at court
and he tried telephoning them,
unsuccessfully.
5
I closed the case for the
defence after consulting the Appellant and with his consent. The
Appellant agreed that I could close the
case without calling his
witnesses.’
[25] The above extracts
from Advocate Viljoen’s affidavit are at odds with what the
applicant stated in his founding affidavit.
In his founding affidavit
the applicant alleged that Advocate Viljoen had undertaken to contact
the witnesses and consult with
them. His version of what happened
when Advocate Viljoen closed the case is materially different to that
testified to by Advocate
Viljoen. The problem faced by the applicant
when he was drafting his application papers seems an obvious one. If
he dealt with
paragraphs 4 and 5 of Advocate Viljoen’s
affidavit and admitted them, he would seriously weaken his case
because the calling
of the witnesses would then have been considered
by both him and his counsel, and he would be held to have elected to
close his
case without calling them. In those circumstances he would
not be able to complain of any irregularity.
[26] On the other hand,
if the applicant had stated in his founding affidavit that he
disputed what was said in paragraphs 4 and
5 of Advocate Viljoen’s
affidavit, that would have thrown doubt upon the other allegations by
Advocate Viljoen that he was
not in possession of the two witness
statements.
[27] The applicant’s
failure to take this court into his confidence in setting out fully
what transpired between himself and
Advocate Viljoen damages his case
to the point where it cannot succeed. That these difficulties may
have been occasioned by the
hurried and unwise circumstances in which
Advocate Viljoen deposed to his initial affidavit is neither here or
there. On the record
of the criminal proceedings there is no evidence
that Advocate Viljoen conducted himself in such an incompetent manner
during the
trial that the defence of the applicant was prejudiced. On
the papers before us, the reason why the evidence of the two
witnesses
was not given cannot be attributed to either the magistrate
or Advocate Viljoen. In those circumstances the review cannot
succeed.
[28] With regard to the
question of costs, Ms Juglal, the second respondent,
was
represented at the review hearing. It was submitted that she is
entitled to her costs because she was unnecessarily joined in
the
application by the applicant. The applicant’s reliance upon his
first ground of review as being an irregularity caused
by the second
respondent Ms Juglal,
occasioned her opposition
to the application. In that regard she has been exonerated and is
entitled to her costs.
[29] In the circumstances
I make the following order :
The application is
dismissed. The applicant is to pay the second respondent’s
costs.
___________________
___________________
Madondo J : I agree.
Date of hearing : 11
th
April 2013
Date of judgment : 16
TH
April 2013
For the Applicant : Mr S
Morgan (instructed by Govender, Pather and Morgan)
For the Second Respondent
: Mr P Hardeo (instructed by AK Essack, Morgan Naidoo & Company)
For the Third Respondent
: Mr A Truter (instructed by the Director of Public Prosecutions)