About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 243
|
|
Mnisi and Another v S (A450/2005) [2009] ZAGPPHC 243 (8 May 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION)
Appeal
case A450/05
DATE:08/05/2009
In
the matter between:
MNISI,
MTHOBIAI CHARLES First Appellant
NDUBANE,
SIBUSISO MAFIKA Second Appellant
and
THE
STATE Respondent
CORAM
BOTHA et MAVUNDLA JJ et EBERSOHN AJ
DATE
HEARD 6 MAY 2009
DATE
JUDGMENT HANDED DOWN 8 MAY 2009
JUDGMENT.
EBERSOHN
AJ.
[1]
The two appellants were convicted by a regional magistrate on a count
of rape and both were sentenced to a period of imprisonment
of 10
years.
[2]
The offence was allegedly committed on the 5th March 2003 and both
appellants were arrested on the 6th March 2003.
[3]
The first appellant was bom on the 31st October 1988 and at the time
of the commission of the alleged offence he was 14 years
4 months and
5 days of age. The second appellant was born on the 11th September
1987 and at the time of the commission of the alleged
offence he was
15 years 5 months and 24 days old.
[4]
Leave to appeal against sentence was granted by the magistrate and he
released both appellants on bail.
[5]
The appeal against the sentences imposed initially came before two
judges of this court on the 28th August 2006. The Presiding
Judges,
however, raised certain issues regarding the convictions and granted
leave that the appeal be argued on the basis that
leave to appeal was
granted against the convictions as well. They then ordered that
supplementary heads of argument be filed regarding
the convictions as
well as certain other issues which were raised by the Presiding
Judges.
[6]
The appeal was argued before two other judges of this court on the
10th September 2007 and as they were not ad idem the matter
was
referred to a full court for argument and the matter was postponed.
[7]
The matter the came before a fill bench.
[8]
The two appellants at the time of the trial obviously were in fact
still immature and unsophisticated children.
[9]
At p. 11-12 of Du Toit et al: Commentary on the Criminal Procedure
Act, the following is stated:
"In
S v Khanyile 1988(3) SA 795 (N) Didcott J (Friedman J concurring)
held that a presiding officer has a duty, prior to the
commencement
of the trial, to determine whether the absence of legal
representation will place an indigent accused at so great
a
disadvantage that the ensuing trial would be grossly and palpably
unfair. It was held that in determining this question, the
presiding
officer should conduct an enquiry into the following three aspects
(p. 815D-H):
(a)
the inherent factual or legal simplicity or complexity of the case;
(b)
the personal resources of the accused (eg. how mature, sophisticated,
intelligent and articulate he looks and sounds); and
(c)
the gravity of the case and the possible consequences of a conviction
(eg. imprisonment, a crippling fine, loss of employment
or means of
earning a livelihood).
Having
determined the necessary answers, the presiding officer should decide
whether (816B-G):
’
their
cumulative effect is such that the man would be placed at a
disadvantage were it to go ahead without a lawyer for the defence.
But I do not see what room our constraints leave us for improvement
on it. The judicial officer will no doubt try his best, at
all
events. If he answers the question in the affirmative, he should
refer the case at once to those administering the legal aid
scheme or
to one or another of the various associations of lawyers that are
willing and keen nowadays to offer assistance pro bono.
He should
decline to proceed with the trial, furthermore, until representation
is procured through some other agency
(See
also S v Mokoena
2005 (1) SACR 594
(T) at 597d-f).
[10]
It does not appear that the magistrate, in fact, conducted such an
enquiry. Before him he had two children as accused, both
immature,
unsophisticated and obviously without the means to afford counsel.
The charge facing them was that of rape being a most
serious case
with possible consequences of a very long term of imprisonment if
convicted.
[11]
Had he conducted such an enquiry he undoubtedly would have concluded
that the absence of legal representation would place the
two indigent
accused at so great a disadvantage that the ensuing trial would be
grossly and palpably unfair and an irregularity.
[12]
Du Toit et al op cit. p. 11-12 stated the following in this regard:
"In
S v Ramuongiwa
1997 (2) BCLR 268
(V) it was held
constitutionalization had revived the ’’Khanyile rule":
where lack of legal representation renders
the trial unfair, the
conviction must be set aside. See further the discussion below, sv
’The Supreme Court of Appeal and
the indigent accused’.
See also Mgcina v Regional Magistrate, Lenasia & Another
1997 (2)
SACR 711
(W) and S v Makhandela
2007 (2) SACR 620
(W) at 634i.”
[13]
In review case 209216/03 (Transkei Local Division) of S v Molose and
Another I ruled as follows regarding this aspect:
"[11]
There is the problem with and indeed a fatal irregularity with regard
to legal representation of the two accused. S 73(2C)
of the CPA
introduced a novelty. Where an accused fails to appoint a legal
advisor, a court may in certain circumstances take steps
to secure
legal representation on behalf of the accused. At some stage the
discretion of the magistrate no longer is a discretion
but becomes a
legal obligation and if the magistrate then fails in this respect the
proceedings before him become irregular. For
the reasons that follow
this is such a case where the Court had to order that legal
representation be assigned to the two accused.”
[14]
The trial of the two appellants commenced before the magistrate on
the 19th February 2004. It does not appear from the transcript
of the
proceedings, which were mechanically recorded in court, that the
magistrate informed the two appellants of their right to
legal
representation. The trial was, but for a short period, conducted in
English.
[15]
Page 2 of the record, however, contains a printed form in the
Afrikaans language with the heading "VERDUIDELIKING VAN
’N
BESKULDIGDE SE REG OP REGSVERTEENWOORDIGING”. It is dated the
15th July 2003, some 7 months before the trial of
the appellants
commenced. There is also a notification in the record that a some
stage, also many months before the actual trial
commenced, the two
appellants were informed of their right to legal representation. The
full contents of what was stated to them
on this occassion was,
however, not stated. It is not recorded whether the mothers of the
two accused were present at these information
sessions or not.
Counsel for the State was asked, during argument, whether that was
enough and sufficed, and he conceded that by
the time the actual
trial commenced, they would most likely have forgotten most of the
contents of what the magistrate informed
them about legal
representation.
[16]
The fact that the mother of each accused "assisted" her son
is meaningless and of no legal significance in view of
the fact that
it is clear from the record that they were both equally
unsophisticated and lay persons and could not really be of
assistance
to their sons with regard to the conduct of the case. It appears that
the trial commenced on the 19th February 2004
and the evidence of the
complainant was led. There is no indication or reference on record
that the mothers of the two accused
were present in court on that
day. First appellant commenced with some cross-examination of the
complainant and the matter was
then postponed to the 23rd April 2004.
[17]
The record relating to the 23rd April 2004 commenced as follows:
"HOF:
Dankie, nomraer een u is besig met kruisondervraging. U kan
voortgaan.
BESKULDIGDE
EEN: Waarom het jy nie die Polisie daarvan vertel. HOF: Van wat
vertel?
BESKULDIGDE
EEN: Nadat jy saam met beskuldigde twee was, na
hierdie
voorval? — Ek het die Polisie daarvan vertel.
Geen
verdere vrae.
HOF: Nommer
twee? Die tw ee beskuldigdes is hulle broers of
wat?
BESKULDIGDE
TWEE: Ja Edelagbare.
HOF:
So hulle het een moeder?
BESKULDIGDE
TWEE: Nee.
BESKULDIGDE
2: Ja.
HOF:
Want ek sien hier sit twee vrouens in die hof.
Goed
Nomtner een se moeder dan. Het sy vrae aan die getuie."
It
was apparently only at this stage that the magistrate became aware of
the existence of the two mothers.
[18]
After the medical practitioner, who examined the complainant,
testified neither the first appellant nor his mother had any
questions for the witness. Second appellant asked the witness three
questions and his mother asked no questions. Neither first
appellant
nor his mother put any questions to the witness. In all likelihood
they neither understood the evidence nor the significance
thereof.
[19]
After the state witness Lukhele, to whom the complainant allegedly
made a report, testified neither first appellant nor his
mother put
any questions to the witness. Second appellant put only 3 questions
to her and his mother none.
[20]
After the state case was closed the first appellant didn't testify
and closed his case. The record (p.73) in this regard reads
as
follows:
"COURT: Number
one? Speak up I can't hear you.
ACCUSED
1: I elect to remain silent Your Worship.
COURT: Have
you got witnesses?
ACCUSED
1: No witnesses.
COURT: Is
that your case?
ACCUSED
1: That is my case Your Worship."
At
this stage and having noticed that the first appellant elected to
remain silent the magistrate should have pointed out to him
the need
to testify in view of the prima facie case against him. The silence
on the part of the first appellant also prejudiced
the second
appellant because his evidence could have corroborated the evidence
and version of the second appellant.
[21]
When the second appellant called a witness the magistrate unduly
interfered and took over her cross-examination from the prosecutor
and cross-examined the witness for about three pages in a manner
which was unbecoming (record p.86-89).
[22]
After the defence case was closed the prosecutor addressed the court
on the merits and he asked for a conviction.
[23]
The magistrate then called upon the two appellants to address him and
the record in that regard reads as follows:
"COURT: Accused
on the merits whether you are guilty or not guilty. Would you like to
address the Court number one?
ACCUSED
1: I am not guilty.
COURT: His
mother?
ACCUSED
1 GUARDIAN: He is not guilty Your Worship.
COURT: Number
2?
ACCUSED
2: I'm not guilty Your Worship. The guilty part is those complainant
Your Worship. They are guilty.
COURT: His
mother?
ACCUSED
2 GUARDIAN: I see accused number two guilty Your Worship. he is
guilty because he says that there was consent but the complainant
testified here that she did not consent to sexual intercourse. He is
guilty Your Worship."
[24]
The invitation by the magistrate to the appellants to state whether
they were guilty or not was misleading and in actual fact
the
magistrate should have asked them to address him on the evidence as a
whole and the evidence of the complainant and the other
States
witnesses and not just to state whether they regarded themselves as
guilty or not guilty. When he noticed the cryptic response
of the
appellants he should in any case, on his own, have taken up the
matter and caused the two appellants to address the court
regarding
the evidence of the various witnesses.
[25]
It is clear that with regard to the admission of the birth
certificate of the complainant in terms of section 42(3) of Act
81 of
1963 the magistrate erred as that act was repealed by Act 51 of 1992.
The magistrate merely accepted, under reexamination
of the
prosecutor, the birth certificate and did not ask the appellants for
their views and/or consent and also did not invite
the appellants to
even look at it and also did not ask them whether they had any
questions regarding the alleged birth certificate.
The record in this
regard reads as follows (record p.72):
"PROSECUTOR:
As the court pleases Your Worship. Your Worship the court is in
possession of a birth certificate of the complainant
Your Worship.
It's (sic) repeats that she was born on the t day of October 1988.
Your Worship the State will apply that said be
handed in Your Worship
to form part of the evidence of the case?
COURT:
The birth certificate is then accepted in terms of section 42-3 of
Act 81 of 1063(Sic) s exhibit B.
PROSECUTOR:
As the Court pleases Your Worship.
STATE
CASE.”
[26]
It also appears that the magistrate was under the impression that the
provisions of Act 105 of 1997 regarding minimum sentences,
were
applicable. On page 108 of the record, when sentencing the two
accused the magistrate said the following:
”
The
offence you have committed is indeed a serious offence. In terms of
Act 105 of 1997, you qualify for a compulsory sentence of
lifelong
imprisonment in view of the fact that you raped a girl under the age
of 16 and in respect of the fact that two of you
raped one girl.”
[27]
In view of the abovementioned aspects I am of the view that the
proceedings before the magistrate were not in accordance with
justice
and in terms of the inherent review powers of this court the
convictions and sentences of both appellants will be set aside.
It is
up to the Director of Public Prosecutions to decide whether the two
appellants be re-charged or not.
[28]
I accordingly make the following order:
The
convictions and sentences of both appellants are set aside on review
P.Z.
EBERSOHN
ACTING
JUDGE OF THE HIGH COURT
I
AGREE
C.
BOTHA
JUDGE
OF THE HIGH COURT
M.
MAVUNDLA
JUDGE
OF THE HIGH COURT