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[2009] ZAGPJHC 116
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Nyembezi v S (1458/2008) [2009] ZAGPJHC 116 (9 June 2009)
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
Case No. 1458/2008
Magistrate’s Serial No. 2/2009
High Court Ref. No. 62/2009
Date:09/06/2009
In the matter between:
VUYISANE
NYEMBEZI
........................................................................................
Accused
and
THE STATE
REVIEW JUDGMENT
MEYER, J
[1] This is a review matter. The charge against the accused, Mr.
Vuyisane Nyembezi, was that he contravened certain provisions
of the
Firearms Control Act 60 of 2000
. It was alleged that he, on 22
November 2008, and at or near Somalia Park, Boksburg, unlawfully
pointed a firearm at another person,
Mzwandile Gabriel, without good
reason to do so. The accused was tried in the Magistrates’
Court, Boksburg on 20 January
2009. On 3 February 2009, he was found
guilty as charged and sentenced to eighteen months imprisonment. He
was also declared
unfit to possess a firearm.
[2] The record of the proceedings was originally laid before Coetzee,
AJ, who, in terms of the provisions of
ss 304(2)(a)
of the
Criminal
Procedure Act 51 of 1977
, required from the judicial officer who
presided at the trial, Mr. JVZ Vivier, a statement setting forth his
reasons for convicting
the accused, and he directed the following
questions at the learned magistrate:
‘[1] Whether Mr Nyembezi knew and understood his rights in
regard to legal representation. If so, how that can be found
in the
face of his ineffective cross examination. If not, why that did not
result in a failure of justice.
[2] Whether it can be found that Mr Nyembezi was sufficiently
competent to conduct his defence in person without causing a failure
of justice.’
The learned magistrate responded as follows:
‘The case record reflects inaudible parts which I could not
rectify. I apologize for the lacuna. Steps have been taken
by the
Office Manager of the Boksburg Magistrates’ Court to have the
recording machines improved, repaired and replaced where
necessary.
I agree with the Honourable Judge’s concern and queries
regarding the clumsy way in which the accused had conducted his cross
examination. The court should have explained in more detail the
benefit of legal representation and the availability of a legal
aid
attorney. From the case record it appears as if there was a failure
of justice.’
[3] I am of the view that the learned magistrate’s concessions
were correctly made. The record of the proceedings does not
reflect
that the accused was informed of his right to legal representation
and the availability of legal aid. The record further
shows that
the accused was a lay person and undeniably incapable of representing
himself. Even if the accused had declined legal
representation,
which does not appear from the record, this matter would serve as a
classroom example of one where it would have
been incumbent upon the
presiding magistrate to have encouraged him to exercise his right to
legal representation [see:
S v Radebe; S v Mbonani
1988 (1)
SA 191
(T), at 196 F-I], and if he nevertheless declined, to have
gone ‘the extra mile’ by ascertaining from him what
motivates
his decision to act in person [see:
S v Cornelius &
Another
2008 (1) SACR 96
(C), at [14]]. Substantial injustice
within the meaning of s 35(3)(f) and (g) of the Constitution of the
Republic of South Africa,
1996 resulted. Direct imprisonment was the
likely punishment to be imposed and it was indeed imposed.
[4] The failure to have provided the accused with an explanation of
his constitutional rights in regard to legal representation
had the
effect of depriving him of legal representation at his trial. See:
S v Ndlovu; S v Sibisi
2005 (2) SACR 645
(W), at p 654b –
c. He was not competent to conduct his own defence. He was
prejudiced. His trial was not fair. There
was a fundamental
irregularity in the proceedings and a complete failure of justice.
The accused’s conviction and sentence,
in my view, must
accordingly be set aside.
[5] In the result:
The accused’s conviction in the Magistrates’ Court,
Boksburg, on 3 February 2009, of the statutory offence of unlawfully
pointing a firearm, the sentence of eighteen months imprisonment
imposed upon him pursuant to such conviction, and the declaration
that he is unfit to possess a firearm, are hereby set aside.
SALDULKER, J
[6] I agree with the judgment of my brother Meyer J.
P.A. MEYER
JUDGE OF THE HIGH COURT
H.K. SALDULKER
JUDGE OF THE HIGH COURT
9 June 2009