S v Cornelius and Another (SS135/2006) [2007] ZAWCHC 54; 2008 (1) SACR 96 (C) (14 September 2007)

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[2007] ZAWCHC 54
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S v Cornelius and Another (SS135/2006) [2007] ZAWCHC 54; 2008 (1) SACR 96 (C) (14 September 2007)

REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
CASE NUMBER: SS135/2006
In the matter between
THE STATE
vs
PHILLIP CORNELIUS AND ANOTHER
JUDGMENT DELIVERED ON
14 SEPTEMBER 2007
SAMELA, AJ
[1] This matter came before me by way of committal of
the accused to the High Court for consideration of appropriate
sentences after
conviction in the regional court. The alleged
offences referred to fell under Part 1 of Schedule 2 of the Criminal
Law Amendment
Act 105 of 1997 (hereinafter called the Minimum
Sentences Act). Both accused were charged in the regional court,
Wynberg, for kidnapping,
rape and attempted rape. The allegations
against both accused were that on 22 October 2004 at or near Ottery,
within the regional
division of the Western Cape, the accused, both
adult males, wrongfully and intentionally kidnapped and had sexual
intercourse with
the complainant, one J H, an adult female person,
without her consent.
[2] The
trial culminated in the conviction of both accused. Accused 1 was
convicted of rape only, while accused 2 was convicted
of attempted
rape and as well as being an accessory to rape. After the
conviction, the Regional Magistrate was of the view that
the offences
which the accused were convicted of, were offences referred to in
Part 1 of Schedule 2 of the Minimum Sentences Act.
The component of
the Act referred to above carries punishment in excess of the
jurisdiction of the regional court, hence the Regional
Magistrate’s
referral to this court for consideration of appropriate sentences.
[3] The
issues in this matter were, whether:
(i) the
regional court is a court of record;
(ii) there was a constitutional duty on the part of the
Presiding officer to one more time explain in detail accused’s
constitutional
rights to legal representation;
the Presiding officer had a duty not only to explain
accused’s constitutional rights but also to encourage the accused
to seek
legal representation, especially in serious cases where life
imprisonment could be imposed;
the Presiding officer is expected to assist the
unrepresented accused in conducting their trial.
[4] Initially
when the trial commenced on 10 June 2005, both accused were
represented by a Legal Aid Attorney. After the completion
of
evidence of the first state witness, the Legal Aid Attorney’s
mandate was terminated by both accused on 21 June 2005, as the
trust
between the accused and their legal representatives was alleged to
have broken down. The attorney had told the court that:
“
ME AMOS: Dankie Edelagbare. Edelagbare na konsultasie met my
kliënte was my mandaat beëndig Edelagbare. Die
vertrouensverhouding
tussen my en my kliënte is verbreek Edelagbare.
Om daardie rede gaan verdediging versoek om vandag te onttrek as
prokureur op
rekord.
HOF:
Mnr
Cornelius is dit
korrek soos juffrou Amos die Hof meedeel?
BESKULDIGDE 1: Ja.
HOF: Mnr Plaatjies?
BESKULDIGDE
2: Korrek.
HOF: U is verskoon
juffrou Amos.
ME AMOS: Dankie
Edelagbare.
The
Magistrate then addressed both accused in the following manner:
HOF: Mnr Cornelius met betrekking tot regsverteenwoordiging wat is
die situasie nou.
BESKULDIGDE 1: Wel
Edelagbare … (onduidelik) die klaer dat sy getuig dat sy …
(tussenbeide)
HOF: Meneer, ek wil
nie hoor van die saak nie ek vra vir nè u het nou u mandaat van die
prokureur beëndig. Gaan u self met die
saak voort of wil u ʼn
ander prokureur aanstel of wat is die situasie?
BESKULDIGDE 1: My Edelagbare ek het nie eintlik my witness by my
nie omdat ek nie in my plek gaan nie daarom moet ek maar …
(onduidelik)
want ek het haar reeds benader dat ek die community het
dat ek gemeenskap en sy getuig nou in die hof dat sy vir my ontken …
(tussenbeide)
HOF: Meneer, meneer hoor u wat ek vir u sê?
BESKULDIGDE 1: Ja,
mevrou maar ek sal vir my ʼn ander prokureur aanstel mevrou.
HOF: Wanneer gaan u
dit doen meneer?
BESKULDIGDE 1: Ek
sal vir my ene kry hier op die hof.
HOF: Maar u het nie
ʼn prokureur dan nie meneer. Wanneer gaan u ʼn prokureur aanstel.
BESKULDIGDE 1: So
gou as moontlik my Edelagbare as ons nou ʼn volgende datum kry dan
sal ek in die tyd ʼn way maak vir ʼn prokureur.
HOF: Mnr Plaatjies?
BESKULDIGDE 2: Ek gaan self praat Edelagbare.
HOF: Gaan u self u
saak behartig?
BESKULDIGDE 2: …
(onduidelik) liewerste klaarmaak volgende datum.
HOF: Hʼn?
BESKULDIGDE 2: …
(onduidelik) dan sal ek … (tussenbeide)
HOF: Ek sal vir u sê
wanneer u u getuies hier moet hê. Is u seker dat u op u eie wil
voortgaan?
BESKULDIGDE 2: Dit
is korrek Edelagbare.
HOF: U wil nie ʼn ander prokureur aanstel nie. Mnr Cornelius
wanneer sal u prokureur gereed wees om voort te gaan met die verhoor?
BESKULDIGDE 1: Wel
as ek nou ʼn datum dan sal ek na hom toe gaan mevrou om vir hom te sê
volgens die saak wat ek het en hy sal my
kom verdedig hier.
HOF: Watter
prokureur het u in gedagte meneer?
BESKULDIGDE 1: Wel, ek sal maar enige Staatsprokureur neem mevrou.
HOF: Maar meneer u
het nou net die Staatsprokureur se mandaat beëndig.
BESKULDIGDE 1: Ja,
ek het mos gesê ek sal voortgaan met hulle my Edelagbare.
HOF: Maar u kan nie dit doen nie meneer as u ʼn prokureur wil
aanstel dan met u nou vir my sê want die mense wag hier buitekant
die
Hof.
BESKULDIGDE 1: Ek
sal my ʼn prokureur aanstel my Edelagbare.
HOF: Meneer jou saak
word uitgestel na komende Vrydag die 24ste Junie sodat beskuldigde
nommer 1 ʼn prokureur kan aanstel, wat kan
voortgaan met die
verrigtinge. U borg word verleng en u word beide gewaarsku om kwart
voor nege op 24 Junie by streekhof M teenwoordig
te verstaan u beide?
[5] On reading the court record, I noticed that the
Regional Magistrate gave accused 1 only three (3) days within which
to obtain
the services of a privately paid legal representative (that
is from 21 June 2005 to 24 June 2005). In the record, there were no
recordings by the Regional Magistrate of explanation of the minimum
sentence one more time to both accused, the seriousness of the
offences and the punishment likely to be imposed should they be found
guilty. I did not also find any recordings of encouragement
to the
accused to seek legal representation. After reading the record, I
addressed a letter to the Regional Magistrate raising
my concerns and
requested reasons for convictions. The Regional Magistrate
responded, even though her response has not addressed
my concerns.
[6] With
regard to the recording of criminal cases in the Magistrates’
Courts, section 65(5) of the Magistrates’ Courts Act 32
of 1944 (as
amended) is relevant and it provides that:
“
The judicial officer presiding at the hearing shall himself
record in the criminal record book any sentence imposed or other
order
of disposal made by him including acquittal, or other
discharge, postponement of sentence, adjournment, remand to another
court or
committal for trial.
”
The recordings in the criminal book is peremptory.
Regional Magistrates are not exempted from the abovementioned
section. The
recording in the criminal book assists in indicating
what happened to proceedings in courts when accused appear before
Magistrates,
especially where the information is not on tape. In
the present matter, the Regional Magistrate’s recordings leave much
to be
desired. The section mentioned above clearly indicates that
all Magistrates Courts are courts of record. There is no excuse on
the part of the Regional Magistrate to omit recording the events in a
criminal case on the day/s accused appear before him/her.
[7] Section
35(3) of the Constitution of the Republic of South Africa Act 108 of
1996 provides that:
Every accused has a right to a fair trial,
which includes the right –
to have adequate time and facilities to prepare a defence; and
to have a legal practitioner assigned to the accused person by
the state and at the state expense, if substantial injustice would
otherwise result, and to be informed of this right promptly.
In this matter, both accused were not given enough time
to find legal representatives. I am of the view that three (3) days
was
too short a time for the accused to obtain legal representation.
This is even more so, as the accused person was going to engage
the
services of privately paid legal representative. Taking into
consideration the known poor socio-economic background of the accused
persons, they ordinarily would have had to auction whatever assets
they possessed. In the rural areas, for example, it is not uncommon
for poor people to auction their cattle or other domestic animals, in
order to secure funds for the engagement of the services of
legal
representatives. Regarding the importance of a legal representative
to the unrepresented accused, Goldstone, J (as he then
was) in
S
v Radebe
,
S v Mbonani
1988 (1) SA 191
(T) at 196 F-G said the
following:
“
If there is a duty upon judicial officers to inform
unrepresented accused of their legal rights, then I can conceive of
no reason
why the right to legal representation should not be one of
them. Especially where the charge is a serious one which may merit
a
sentence which could be materially prejudicial to the accused, such
an accused should be informed of the seriousness of the charge
and of
the possible consequences of a conviction.
Again, depending
upon the complexity of the charge, or of the legal rules relating
thereto, and the seriousness thereof, an accused
should not only be
told of this
right but he should be encouraged
to exercise it. He should be given a reasonable time within which
to do so. He should also be
informed in appropriate cases that he
is entitled to apply to the Legal Aid Board for assistance. A
failure on the part of a judicial
officer to do this, having regard
to the circumstances of a particular case, may result in an unfair
trial in which there may well
be a complete failure of justice.
”
[8] In
summary the right to legal representation has three (3) separate and
distinct forms, namely,
(a) the
right to a legal practitioner of one’s choice;
(b) the right to a legal practitioner assigned to one at
the state expense; and
(c) the right to a legal practitioner furnished by the
Legal Aid Board.
The first
two forms are recognized and entrenched in the Constitution. Section
35(3) of the Constitution provides that the right
to a fair trial
includes the right:-
(f) to choose, and be represented by, a legal
practitioner, and to be informed of this right promptly; and
(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.
The third form is based upon common law. See
S
V Hlantlalala and Others v Dyantyi N.O. and Others
1999 (2) SACR 541
(SCA) at 544 d-j and 545 a-e.
[9] The
second and third forms are generally confused by Magistrates and the
Legal Aid Board. After the adoption of the Constitution,
no
mechanisms were put in place to make it possible for accused persons
to invoke and assert their right to legal representation
at the state
expense. Instead the Legal Aid Board was used as a vehicle for
providing legal representation at the state expense.
In this regard
the amended section 3 of the Legal Aid Act 22 of 1969 reads:
“
The objects of the board shall be to render or make available
legal aid to indigent persons and to provide legal representation at
state expense as contemplated in the Constitution…”
(Such amendment came into effect on 1 October 1998.)
[10] It is
significant to note that two distinct tests apply in determining
whether a person is entitled to legal representation under
common law
or at state expense. Under common law, one must be indigent and the
board has its assessment criteria to determine whether
indeed the
person is poor and qualifies for legal aid assistance. This is
normally referred to as the means test.
[11] There is only a single test for an accused person
to qualify for legal representation at the state expense. Every
accused person
coming before our courts is entitled to legal
representation at state expense if substantial injustice would occur
in the case, if
the trial is conducted without him being legally
represented. This has nothing to do with his poverty status and it
is completely
wrong for the board to apply the means-test in the
latter instance because that is not what the Constitution requires.
This, the
majority of Magistrates, fail to point out to the accused.
Consequently, the board turns down their applications on the basis
that
they do not qualify. The constitutional right of many accused
persons is violated when their trials proceed without legal
representation
pursuant to the boards’ refusal. It must be
emphasized that the board has no authority to replace the
constitutional requirement
with its own criteria, nor does it have to
treat every request made for legal representation as if they are all
made under common
law. Although the Constitution does not define
“substantial injustice”, our courts have construed the phrase to
include instances
where direct imprisonment is the likely punishment
to be imposed. See
Mgcina v Regional
Magistrate, Lenasia and Another
1997 (2) SACR
711
(W),
S v Chauke and Another
1998 (1) SACR 362
(V) and
S v Du Plessis
[1995] ZACC 5
;
1995 (2) SACR 125
(CC),
[1995 (3) SA 292
;
1995 (7) BCLR 851
par 15].
[12] It is
the duty of the Presiding officers to first determine before the
trial commences whether the offence warrants direct imprisonment
especially in cases where the accused’s request has been turned
down by the board. If the answer thereto is in the affirmative,
then the board’s attention should be brought to the fact that it is
constitutionally obliged to provide legal assistance to the
accused
in order that he/she should realize his/her right to legal
representation at state expense.
[13] As a
result when an accused person is advised of his/her right to legal
representation, the distinction between three forms of
the said right
should be clearly made in order for the accused to understand them.
Indeed the Constitution does not only confer
the right to a legal
representation but it also requires, in peremptory terms, that the
accused be informed promptly of the said
right. It must be borne in
mind that the exercise of the right to legal representation is of
critical importance in any trial as
it is the only source through
which the other rights can be effectively exercised. It also
eliminates the need for the Presiding
officer to assist an accused
which is an onerous task, demanding a delicate and balanced approach
lest the Presiding officer be accused
of having descended into the
arena of trial.
[14] Furthermore it is not unusual to come across
records indicating that, in spite of the accused having been advised
of his rights
to legal representation through the Legal Aid Board,
they would have chosen to act in person even where they faced serious
charges.
Although it ultimately depends on the individual decision
of the accused whether or not to have legal representation. In some
cases
such decision is based on misconception or misunderstanding of
the system relating to free legal representation. It is therefore
incumbent upon Magistrates to go an “extra mile” in cases where
the accused declines legal representation particularly in cases
of
serious charges. They must find out what motivated the decision to
act in person in the light of the complexities in court procedures.

See
S v Nkondo
2000
(1) SACR 358
(W) at 360b-e and
S v Manele
2000 (2) SACR 666
(NC) at 669e-670. Failure to investigate the
reason for declining free legal representation might defeat the very
objects of the
right to a fair trial entrenched in section 35 of the
Constitution.
[15] Dlodlo, J in
S v Ambros
2005(2) SACR 211 (C) at 217g-I has succinctly explained the
importance of legal representation at the state expense. The
learned
Judge said that:
“
…
the presiding officer should inform the accused person:
That he or she has a right to legal representation at state
expense if substantial injustice would otherwise result.
That he or she has a right to appeal to the director of the Legal
Aid Board against the refusal of legal aid by the legal aid officer,
and how to exercise that right;
That if the Legal Aid Board refuses to provide legal
representation, he or she may ask the court to make an order that he
or she
be provided with legal representation at state expense (the
procedure and matters to have regard to, are set out in s3B of the

Legal Aid Act).
The
learned Judge correctly pointed out that a failure by the Presiding
officer to inform the unrepresented accused of the above rights,
is
an irregularity, which is not capable of being condoned or cured in
subsequent proceedings.
[16] The Supreme Court of Appeal again in
S
v Sikhipha
2006(2) SACR (SCA) 439 at 443f-g
per Lewis, JA one more time, emphasized the duties of Presiding
officer, when Lewis, JA said that:
“
It should be said, however, that where an accused is faced with
a charge as serious as that of rape, and especially where he faces
a
sentence of life imprisonment, he should not only be advised of his
right to a legal representative but should also be encouraged
to
employ one and to seek legal aid where
necessary.
It is not desirable for the trial court in such cases merely to
apprise an accused of his rights and to record this in
notes: the
court should, at the outset of the trial, ensure that the accused is
fully informed of his rights and that he understands
them, and should
encourage the accused to appoint a legal representative, explaining
that legal aid is available to an indigent accused.”
A thorough
explanation of accused constitutional rights is the thrust of a fair
trial. A failure by the Presiding judicial officer
to tender such
explanation, may result in an irregularity which may vitiate the
proceedings, especially where accused would be prejudiced
by such a
failure. In this matter, the Regional Magistrate failed to explain to
the accused thoroughly their constitutional rights,
which resulted in
them being prejudiced, as they faced direct imprisonment. In my
judgment this was undoubtedly an irregularity
which cannot be
condoned.
[17] Magistrates as part of the judiciary, are expected
to apply and uphold the constitution, as was correctly pointed out in
S v Lukhandile
1999(1)
SACR 568 (C) at 570e-g per Ntsebeza, AJ when he said:
“
Magistrates, being part of the judiciary, are as much obliged
to conduct themselves in a way that is consistent with the
Constitution
as is anyone else. In their daily conduct of their
affairs in their courts, magistrates must realize that for the proper
administration
of justice in a constitutional democracy, especially
when they deal with unrepresented accused, they must forever have in
the forefront
of their minds the dictates of the supreme law of the
land. To conduct themselves otherwise, is to render their actions
not only
irregular but unconstitutional to the extent of their
actions’ inconsistency with the Constitution.”
[18] In
this matter, the Regional Magistrate as reflected in the court record
failed to explain to the accused their constitutional
rights. She
also did not encourage the accused to seek legal representatives as
the accused cases were of serious nature. Also the
Regional
Magistrate failed to assist the unrepresented accused in conducting
their trial, for example, conducting cross examination.
All the
above mentioned omissions by the Regional Magistrate did prejudice
both accused in their trial, resulting in their trial
being unfair.
These were irregularities, which, in my judgment, are incapable of
being condoned.
[19] It is
on the basis of the aforementioned reasons that on 17 August 2007 I
ordered that the conviction in the instant matter be
set aside.
____________________
SAMELA, AJ