Dyoyi v S [2006] ZAFSHC 151 (23 March 2006)

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[2006] ZAFSHC 151
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Dyoyi v S [2006] ZAFSHC 151 (23 March 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Appeal No.: A248/2005
In the appeal between:
DALINGEBO ISAAC
DYOYI
Appellant
and
THE
STATE
Respondent
_____________________________________________________
CORAM:
RAMPAI, J
et
MATHEBULA,
AJ
_____________________________________________________
HEARD ON:
13 MARCH 2006
JUDGEMENT:
MATHEBULA, AJ
_____________________________________________________
DELIVERED ON:
23 MARCH 2006
_____________________________________________________
[1] The appellant was
convicted by a district magistrate, Welkom of assault with intent to
do grievious bodily harm and sentenced
to three years imprisonment.
The appeal is against both conviction and sentence.
[2] It is an undisputed
fact that the appellant stabbed one John Sekamoto (Sekamoto) three
times with a knife on the 27
th
March 2005. As a result of the injuries sustained, Sekamoto was
hospitalised for three days. The attack on him was without
provocation
and unwarranted.
[3] On the 19
th
April 2005 the appellant appeared before magistrate Ruthernberg. The
right to legal representation was explained to him. He chosed
to
conduct his own defence. The trial commenced on the 5
th
May 2005 and was concluded on the 30
th
August 2005. Throughout the hearing he appeared in person.
[4] Counsel for the
appellant submitted that the appellant was not afforded the right to
a fair trial. The basis of his submission
is that the court
a
quo
did
not before the commencement of the trial explain to the appellant his
right to legal representation. This prejudiced the appellant
as he
was unable to conduct his defence. He did not ask the crucial
questions nor adequately challenge the evidence led by the
respondent.
This was also unfair that the appellant did not have
preview to the respondent’s case prior to the commencement of the
trial.
He argued that the court
a
quo
did
not assist the appellant in the conduct of his defence.
Inter
alia
the appellant was not informed that the attendance of his witness can
be secured by means of a subpoena. This led to the appellant
opting
for a prejudicial stance of proceeding with the matter without the
crucial witness.
[5] He conceeded that the
conviction was correct based on the evidence before the court
a
quo.
He
submitted that the sentence imposed was shockingly inappropriate. It
was disproportionate to the crime committed, the appellant
and
interest of society. In imposing the sentence, the court
a quo
over-emphasised the seriousness of the offence and interest of
society over the personal circumstances of the appellant. The
appellant
was a first offender, gainfully employed and a young family
to support. He therefore urged me to interfere with the sentence
imposed
by the court
a
quo
.
[6] Counsel for the
respondent submitted that the issue as to whether the appellant has
been denied a fair trial or not depends on
the circumstances. He
argued that the right to legal representation was explained to the
appellant and he independently chose to
represent himself. However,
he conceeded that on the day of the trial the same was not explained
to the appellant. The appellant
was aware of the existence of his
right to legal representation. He did not insist on it. He further
submitted that the appellant
informed the court
a
quo
that he will make his own arrangements to secure the attendance of
his witness at the trial. He was given three opportunities to
bring
the witness to court but all in vain. He did not seek the assistance
of the court to secure the attendance of his witness.
On the third
occasion he made a decision to proceed with the matter without his
witness. He was not influenced or forced to decide
to continue with
the trial.
[7] On the issue of
sentence, he argued that the appellant had committed a serious
offence. He had stabbed Sekamoto three times after
he had missed him
almost ten times. He had the direct intention to grievously injure
him. As a result of the injuries sustained,
Sekamoto spent three
days in hospital. The appellant was fortunate that he was not
charged of attempted murder. He therefore urged
me that there is no
basis to interfere with the sentence imposed by the court
a
quo
.
[8] The constitution
guarantees that an accused person has a right to a fair trial. This
right includes the right to a legal representative
of one’s choice
or assigned by the state at the expense the state. A right to a
legal representation has been held in
STATE
v PHILEMON
1997 (2) SACR 651
(W) as a fundamental right and one of the
cornerstones of a civilised legal system.
[9] It is common cause
that the appellant conducted his own defence and the right to legal
representation was not explained to him
on the day of the trial.
However, considerable period of time elapsed between the 19
th
April 2005 and the conclusion of the trial. The appellant was aware
of his rights to legal representation and chosed to conduct
his own
defence.
[10] In
HLANTLALALA
AND OTHERS v DYANTYI NO AND ANOTHER
1999 (2) SACR 541
(SCA) at 545 F – H the court said the following:
¡°
The
crucial question to be answered is what legal effect such
irregularity had on the proceedings at the appellants' trial. What
needs
to be stressed immediately is that failure by a presiding
judicial officer to inform an unrepresented accused of his right to
legal
representation, if found to be an irregularity, does not per se
result in an unfair trial necessitating the setting aside of the
conviction on appeal.”
This was approved in an
unreported case of
STATE
v MAY
SCA, case number 376/2004.
[11] In my view the
practice of not informing an unrepresented accused of his rights
before the commencement of his right to legal
representation before
the commencement of the trial is undesirable. It is important that
an unrepresented accused is informed of
his right to legal
representation before the trial commences in order to ensure that he
still wants to exercise the option he has
previously chosen. This is
even more important in situations where an unrepresented accused
appear before a different presiding
judicial officer to the one who
previously postponed the matter. In this matter there is nothing
that prejudiced the appellant to
the extent that he was not afforded
a fair trial. The trial was conducted in accordance with the law.
[12] I shall not deal
with the issue of conviction as the counsel for the appellant has
conceded that based on the evidence before
the court
a
quo
,
the conviction was in order. I also confirm that the conviction is
in order.
[13] The trial court has
discretion when it comes to sentence. The court of appeal will
undoubtedly interfere if there is striking
disparity between the
sentence imposed and that it will have imposed if sitting as a court
of first instance. See
STATE
v PILLAY
1977 (4) SA 531
A at 535 E – F and
STATE
v SALCEDO
2003
(1) SACR 324
(SCA).
[14] In this matter, the
court
a
quo
imposed a sentence which in its own admission is harsh but not
shockingly inappropriate. It seems to me, with respect, that the
seriousness of the offence and interest of the society were over
emphasis at the expense of the personal circumstances of the
appellant.
Although the court
a
quo
made mention of other sentencing options, they were not considered.
The same goes for the personal circumstances of the appellant.
[15] The appellant is a
first offender and was 22 years at the time of the conviction and
sentence. He was gainfully employed with
a family to support.
Although Sekamoto was seriously injured he had made complete
recovery. There is no evidence of criminal propensity
on the part of
the appellant and that he is beyond rehabilitation.
[16] As counsel for the
appellant correctly argued, direct imprisonment should not be the
first and only option in sentencing. Stabbing
a person with a knife
is a serious offence but it does not follow that only direct
imprisonment is appropriate sentence.
Section 276
(i) of the
Criminal Procedure Act no. 51 of 1977
provides
inter
alia
in
subsection (h) correctional supervision and in (i) imprisonment from
which such a person may be placed under correctional supervision
in
the discretion of the Commissioner of Correctional Services. These
are some of the sentencing options that the court
a
quo
may
consider in imposing an appropriate sentence.
[17] It is not always
desirable that direct imprisonment should be imposed on first
offenders. The court
a
quo
in
its own admission is also aware that there is criticism in imposing
direct imprisonment on young first offenders. In this matter,
the
appellant is a young person and direct imprisonment imposed upon him
makes the sentence harsh and inappropriate. I am not convinced
that
the appellant cannot be rehabilitated by correctional supervision.
In my view he is a candidate who might benefit from programs
of
correctional supervision to deal with
inter
alia
his temper and learn some responsibility. I am at liberty to
interfere with the sentence.
[18] I
make the following order:
Conviction is
confirmed.
The sentence is set
aside.
The matter is remitted
to the court
a
quo
for an appropriate sentence.
___________________
M.A.
MATHEBULA, AJ
I
concur.
______________
M.H.
RAMPAI, J
On
behalf of the appellant: Adv. T. B. van Rensburg
Instructed
by:
Legal
Aid Board
BLOEMFONTEIN
On
behalf of the respondent: Adv. S. Chalale
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/em