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2008
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[2008] ZANCHC 35
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S v Kordom (7/08) [2008] ZANCHC 35 (4 July 2008)
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 7/08
Delivered:
04/07/2008
In
the matter between:
THE
STATE
VS
DEON
PATRICK KORDOM
CORAM:
BOSIELO AJP et MOKGOHLOA AJ
JUDGMENT
Mokgohloa
A J:
The
accused was charged and convicted of housebreaking with intent to
commit an offence unknown to the prosecution, and malicious
injury
to property in the Magistrate Court, Gordonia. He was sentenced to
imprisonment for three (3) years of which one (1)
year was suspended
on suitable conditions. He was further sentenced to three (3)
months on the second charge. Both sentences
were ordered to run
concurrently.
When
this matter came up for review, I had doubts that the proceedings
were in accordance with justice. I directed a query to
the
magistrate. The magistrate has since responded and maintains that
the proceedings were proper and in accordance with justice.
I
regret to state that I do not agree with the magistrate. I now
proceed to deal with the irregularities.
It
is clear from the record that several Legal Aid Board
representatives did appear on behalf of the accused. However they
all withdrew. On the day of the trial the accused informed the
magistrate that he will conduct his own defence. The prosecutor
put
the charges to the accused. The accused pleaded to the first charge
but had difficulty with the second charge. Ultimately,
he pleaded
guilty to the second charge although he stated that he does not
understand the charge. This misunderstanding led
him to deny all
the elements of the charge for which he pleaded guilty. The
magistrate, correctly so, changed his plea from
guilty to not guilty
in terms of section 113 of the Criminal Procedure Act 51 of 1977
(CPA)
It
is trite that the duty lies with the presiding officer to ensure
that the accused is fully aware not only of his right to legal
representation but also of the consequences of not having a lawyer
to assist him in his defence. This right is encapsulated
in section
35(f) and (g) of the Constitution. This is so especially in cases
where the accused is facing serious and complex
charges and the
possibility of substantial injustice looms large. As stated by
Jordaan
AJ
in
S v Nkondo 2000(1) SACR 358 W at 360d
that:
“
In
my view, when courts explain the right to legal representation to
accused persons and an accused person facing a serious charge
elects
to appear in person, the magistrate should ask the accused why do you
want to appear in person and if it appears that the
accused is under
some or other misunderstanding that must be put right.”
However
the court’s failure to adequately explain to the accused his
rights to legal representation does not necessarily vitiate
the
proceedings. The crucial question is, in my view, what legal effect
such irregularity had on the trial.
The
state led evidence of an expert witness Captain Diergaardt from the
Criminal Record Centre, Upington. Certain exhibits were
handed in
by the state. The magistrate accepted these exhibits without
enquiring from the accused whether he had any objection
to their
admission or not. These exhibits included finger prints, palm
prints and foliens. It is clear that the accused had
no
understanding of all these technical aspects. This is evident from
the fact that the accused did not cross-examine this witness
even
when it was testified that the prints on the exhibits matched that
of the accused’s hand and palm prints. It is true
that the
accused was asked whether he understand the evidence by Captain
Diergaardt and he answered in the affirmative. He was
further asked
if he was satisfied with the evidence, he further answered in the
affirmation. What is strange is that the accused
in his plea
explanation on the first charge stated that he has no knowledge of
the housebreaking. On the second charge, the
accused denied that he
was at the place on the 29 and 30 April 2007. (the dates of the
alleged commission of the crime) According
to the accused, he
worked at that place during February 2007 for only three weeks.
This should have triggered the magistrate’s
sense that the
accused does not actually understand Diergaardt’s evidence.
Furthermore, the magistrate should have assisted
the accused in
cross-examining this witness by putting the accused’s version
to the witness. Furthermore the exhibits
handed in court were not
even showed or explained to the accused. In my view the state’s
evidence was of such a technical
nature that the accused could
hardly cross-examine effectively, or at all. It follows that the
accused cannot be said to have
had a fair trial where he simply did
not understand the evidence led against him.
In
S
v Sebatana
1983 (1) SA 809
(O) Booysen J
remarked as follows regarding the court’s duty to assist an
unrepresented accused during cross-examination:
“
Experience
has repeatedly taught that, particularly in the case of illiterate
and untutored Black accused, they may put a few irrelevant
questions
to a State witness or no questions at all, and then subsequently give
evidence which conflicts with that of the State
witness in material
respects. This may be the result of ignorance about the true nature
and purpose of cross-examination, notwithstanding
an explanation by
the magistrate of the accused’s “rights” in that
connection. The presiding officer in such
a case has a duty to
assist the accused in presenting his defence by way of
cross-examination by, for example, expressly asking
him whether he
agrees with each material allegation made against him by a State
witness. In this way it should in most instances
rapidly become
clear which evidence is disputed, and the presiding officer can
himself put the necessary question or contention
to the State
witness. This would at least give the accused the impression that he
is being fairly treated during the trial.”
Regrettably
the magistrate
in
casu
failed to appreciate the duty that rested on him to assist the
unrepresented accused to properly cross-examine and dispute the
expert evidence which was tendered against him.
In
S
v Lekgetho
2002 (2) SACR 13
(O) at 17b – d Musi J
(as he then was), emphasized the duty of the presiding officer to
explain the accused’s right to cross examination as follows:
“
[10]
It is settled that there rests on the judicial officer a duty to
explain to the unrepresented accused the various procedural
rights
that the accused has in the conduct of his or her trial and when
necessary to assist him/her in the exercise of such rights.
(see S v
Radebe; S v Mbonani
1988 (1) SA 191
(T) and S v Rudman; S v Johnson;
S v Xaso; Xaso v Vank NO and Another
1989 (3) SA 368
(E).) The
explanation must be such that the accused understands the content of
the right.
‘
To let
him know of that right, yet not how to exercise it when he has no
idea and starts running into trouble, is not of much use.
Mere lip
service to the duty is then paid.’
Per Didcott J
in S v Hlongwane
1982 (4) SA 321
(N) at 323 C-D. Nor can such duty
be delegated to the interpreter. (See S v Kester
1996 (1) SACR 461
(B) at 473.)
[11]
The right to cross-examination is one such important right. Failure
to explain it and to assist the unrepresented accused
when necessary
in its exercise is an irregularity. (See S v Modiba
1991 (2) SACR
286
(T); S v Khambule
1991 (2) SACR 277
(W); S v Raphatle
1995 (2)
SACR 452
(T)).”
Another
disturbing factor is that after the state had closed its case and
the accused had started to testify, the magistrate for
the first
time informed the accused of competent verdicts. The position with
regard to competent verdicts has engaged our courts
over the years,
particularly when it relates to the position of an undefended
accused. It is a time-hallowed principle of our
criminal procedure
that an accused is entitled to be informed with sufficient detail
and clarity of the charges against him or
her. As
Bosielo
J
observed in
S
v Motsomi 2005 JDR 1080 T
as follows:
“
[4]
It is fundamental and time-honoured principle of our criminal law
that every accused must be fully and properly advised of the
charge
which he/she is facing with sufficient details to be able to answer
thereto. (See section 35(3) (a) of the Constitution).
This hallowed
principle is intended to avoid the possibility of “a trial by
ambush”. This requires that where the
state intends to rely on
competent verdicts in terms of section 256 to 270 to the Code, that
such an accused be informed of all
relevant competent verdicts even
before he pleads to the charge. Such a step will put such an accused
in a position to know and
make an informed decision inter alia as to
how to plead, which facts to admit and how to conduct his defence.
(See S v Velela
1979 (4) SA 581
(c) and S v Kester
1996 (1) SACR 461
(8) at 469i). Furthermore such an approach will avert any possible
prejudice to such an accused, particularly if he is illiterate,
unsophisticated and unrepresented”.
This
principle is now enshrined in our Constitution. Section 35 (3) (a)
entitles every accused person as an essential part of
the right to a
fair trial, to be informed of the charges he is facing with
sufficient detail to answer it. It is sometimes argued
that the
provisions of sections 256 -270 of CPA which enables the court to
convict an accused of an offence with which he is
not originally
charged is in conflict with this principle. This explains why, in
order to avoid such criticism, it is crucial
that all relevant
competent verdicts be timeously, clearly and fully explained to the
accused so that he/she knows what case
he/she has to meet.
Griesel
J
in
S
v Fielies and Another
2006 (1) SACR 302
C at 306 b-f
summarises safeguards that have to be taken to avoid such conflict
as follows:
“
[9]
In order to guard against the potential prejudice lurking in these
provisions, the courts have over the years developed certain
safeguards. The relevant principles in this regard may for present
purposes be summarized as follows:
(a)
The constitutional right to be informed of the charge includes the
right to be informed of competent verdicts on the charge.
.
(b)While
it is not essential to refer to competent verdicts in the charge
sheet, it is extremely desirable that an undefended accused
be
informed timeously of any competent verdicts that might be returned
on conviction. This requires the court ‘to diligently,
deliberately and painstakingly inform the said unrepresented accused
of his rights and to ensure and confirm that he accused understands
his rights’.
(c)
In order to give efficacy to this right, it is important that the
accused be informed of competent verdicts before pleading.
(d)These
principles have particular relevance but are not limited to the
situation where a statutory provision places an onus on
the accused.
(e)
Failure to inform an accused of a competent verdict does not per se
preclude the court from recording such competent verdict.
Everything
will depend upon the facts of each particular case and the extent to
which an accused may or may not be prejudiced
in the conduct of his
or her defence by such omission. Where there is the likelihood of
prejudice to the unrepresented accused,
the return of a competent
verdict would not be sanctioned.
(f)
In the ultimate analysis, the enquiry is simply whether the accused
has been given a fair trial.”
It
is unfortunate that the case against the accused on the merits
appears to be formidable and justifies conviction. However,
one can
never know what effect a properly conducted defence could have had
on the ultimate result. Having given this matter careful
consideration, I am of the view that the proceedings as a whole were
vitiated by a series of serious and gross irregularity to
an extent
that it cannot be said that the accused had a fair trial.
Having
said the above, I find that the proceedings were not in accordance
with justice and the conviction and sentence have to
be set aside.
I therefore propose the following order:
The
convictions and sentences imposed by the magistrate are hereby set
aside.
___________________
F
E MOKGOHLOA
ACTING
JUDGE
NORTHERN
CAPE DIVISION
I
agree, it so ordered.
______________________
L O BOSIELO
ACTING JUDGE
PRESIDENT
NORTHERN CAPE
DIVISION