About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2012
>>
[2012] ZAFSHC 242
|
|
S v Chukudu (448/12) [2012] ZAFSHC 242 (20 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Review No. : 448/12
In the review between:-
THE STATE
and
LETSHEGO CHUKUDU
_______________________________________________________
CORAM:
KRUGER, J
et
DAFFUE, J
_______________________________________________________
JUDGMENT BY:
DAFFUE, J
_______________________________________________________
DELIVERED:
20 DECEMBER 2012
_______________________________________________________
[1] This matter was
referred to the High Court as a special review in terms of section
304(4) of the Criminal Procedure Act 51 of
1977 (“the Act”).
[2] On 4 October 2012 the
accused appeared before an acting magistrate in the Bloemfontein
Magistrates’ Court on a charge
of theft of liquor and cold
drink to the value of approximately R2 000,00. He pleaded guilty. The
magistrate invoked the provisions
of section 112(1)(a) of the Act and
convicted him accordingly. On the same day he was sentenced to pay a
fine of R400,00 or in
default to undergo 40 (forty) days’
imprisonment. He was not declared unfit to possess a firearm in terms
of
section 103
of the
Firearms Control Act 60 of 2000
.
[3] There is no proper
record of the proceedings before the court
a quo
. However the
record shows that the accused indicated that he wished to apply for
legal aid, but that the proceedings were finalised
whilst he appeared
in person. There is no indication as to the steps taken to ensure
that an application for legal aid was made
and if so, what the
outcome thereof was. Fact of the matter is that the accused was in
custody as he was arrested the previous
day and would not be able to,
on his own accord and without the assistance of the clerk of the
court or a representative of the
Legal Aid Office, apply for legal
aid. The matter was finalised the same day and it is uncertain how
much time was allowed to obtain
legal assistance.
[4] There is no
indication on record that the charge was properly put to the accused,
although it is recorded that he pleaded guilty
as indicated by the
magistrate. There is also no indication that the accused’s
constitutional rights contained in section
35(3) of the Constitution
have been explained to him.
[5] Furthermore there is
no indication that the accused was given an opportunity to address
the court or to lead evidence in mitigation
of sentence. The
accused’s right to appeal was not explained to him.
[6] It is appropriate to
quote some of the material constitutional rights contained in section
35(3):
“
(3) Every
accused person has a right to a fair trial, which includes the right-
(a)
to be
informed of the charge with sufficient detail to answer it;
(b)
to have
adequate time and facilities to prepare a defence;
(c)
.....
(d)
.....
(e)
.....
(f)
.....
(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;
(h)
to be
presumed innocent, to remain silent, and not to testify during the
proceedings;...”
[7] Although the accused
was informed of his right to legal representation, it is evident that
the court
a quo
proceeded with the hearing without adhering to
the accused’s wishes. There is no indication that the accused
on second thoughts
waived his right to be assisted by a legal
representative, and if so, whether he was fully informed of the
consequences of his
waiver. The proceedings before the magistrate
took place during the course of one day, i.e. 4 October 2012, and it
has to be accepted
in the absence of any record or explanation by the
magistrate that no proper opportunity was allowed to the accused to
obtain legal
representation.
[8] In the circumstances
the accused did not have a fair trial as the proceedings were not in
accordance with justice. It is unnecessary
to say anything further
pertaining to the finding that the accused is not unfit to possess a
firearm notwithstanding the fact that
no enquiry was conducted as the
ruling of the magistrate is in any event in favour of the accused. It
needs to be emphasised, however,
that no enquiry was called for as
section 103(2) read with item 7(c) of schedule 2 of Act 60/2000 did
not apply: the accused did
not receive a sentence of imprisonment
without the option of a fine.
ORDER
[9] Consequently the
conviction and sentence are set aside.
_____________
J.P. DAFFUE, J
I concur.
____________
A. KRUGER, J
/spieterse