S v Jafta (306/2005) [2006] ZANCHC 16 (10 March 2006)

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[2006] ZANCHC 16
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S v Jafta (306/2005) [2006] ZANCHC 16 (10 March 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 306/2005
Date
delivered: 10 /03/2006
In
the matter:
STATE
versus
JAFTA
M
Coram:
Kgomo JP
et
Molwantwa AJ
JUDGMENT ON REVIEW
KGOMO
JP et MOLWANTWA AJ
This
is a review matter which came before us whilst
Tlaletsi
J
who initially dealt
with it was out on circuit. The accused appeared before an acting
District Magistrate who convicted him on
his plea of guilty on a
charge of driving a motor vehicle on a public road whilst the
alcohol concentration in his blood exceeded
0.24 miligrams per 1000
mililiters to with 0.88 milligrams per 1000 milliliters. This is a
contravention of Section 65 (5) (a)
of Act 93 of 1996. The accused
was sentenced to R1 000,00 or, in default of payment, to
undergo 6 (six months) imprisonment.
Tlaletsi
J
was not satisfied with
the circumstances under which the accused pleaded guilty and
directed the following query to the Magistrate:
“
1. I
note that it was the choice of the accused to have legal
representation in his trial. After the adjournment for him to
consider
the advice of the Magistrate not to have a legal
representative because he is pleading guilty, the issue of legal
representation
has not been entertained again nor was he asked what
his decision regarding legal representation was. Has this conduct
not denied
the accused his right to legal representation, and if so,
what is the effect thereof on the trial. Is the fact that the
accused
now has a previous conviction not on its own prejudicial to
him?
2. On what basis and
at what stage did the Magistrate form an opinion that the offence
does not merit punishment of imprisonment or
any other form of
detention without the option of a fine or a fine exceeding the amount
of R1500,00?”
Unfortunately,
or is it fortunately, the Magistrate’s contract has expired and
was no longer available to respond to
Tlaletsi
J’s
query. The record
shows that the accused applied for legal aid but this was turned
down. The reason for this disqualification
is not apparent from the
record. The accused when notified through the prosecutory that his
defence would not be funded by the
Legal Aid Board intimated to the
Magistrate that he will endeavour to secure private funding and
asked for a postponement for one
month. In future the Legal Aid
Board must furnish documentary proof that legal aid has been denied
to an accused. It is undesirable
for the court to rely on the mere
ipse dixit
of a prosecutor who, afterall, represents the very, this is not so
much an issue of calling the honesty or integrity of the prosecutor
into question , but it has more to do with the principle that
justice must also be seen to be done. We would expect the Legal
Aid
Officer who considered the application to state in broad outline why
legal aid funding has been denied. This will enable an
accessed
person to make an informed decision on whether he should appeal
against the decision to a higher authority or to take
the decision
on review or to abide the decision.
Instead
of granting the postponement, which was an eminently reasonable
request in the circumstances, or at least determining the
accused
ability to secure the funds within the foreseeable future, this is
what happened:
“
Hof
;
Mnr Jafta war is u prokureur?
Beskuldigde
:
Ek vra uitsteldatum tot na die einde van die maand toe…
Hof
:
Wat beoog u om te pleit in die aangeleentheid?
Beskuldigde
:
Skuldig
Hof
:
Hoekom kan ons
nie voortgaan met die saak nie en dit klaarmaak vandag nie?
Beskuldigde
:
Geen antwoord.
Hof
:
Kan ons nie die saak vandag klaarmaak nie? As u beoog om skuldig te
pleit wat sal u rede wees om die saak uit te stel tot die
einde van
die maand?
Beskuldigde
:
Vir my eie prokureur Agbare.
Hof
:
Wat gaan jy maak met ‘n prokureur as jy skuldig pleit, het jy ‘n
prokureur nodig?
Beskuldigde
:
Geen antwoord.
Hof
:
Die saak kan maar afstaan vir twee minute. Dink maar mooi daaraan.”
When
the trial resumed the court asked the accused:
“Watter
besluit het u nou geneem”
.
He responded:
“Ek
gaan skuldig pleit Edele”
.
The prosecutor proceeded to put the main charge and its alternative
to him. The accused, true to his undertaking, pleaded guilty
but to
the alternative charge referred to in par 1 (above). On the enquiry
by the Magistrate to the prosecutor the latter intimated
that he
accepts the plea of guilty on the alternative charge. There was no
questioning in terms of
Section 112
(1) (b) of the
Criminal
Procedure Act, 51 of 1977
. The query by Tlaletsi J therefore makes
good sense.
On
the basis discussed hereinbefore the accused was convicted and
sentenced. Legal representation is a fundamental right entrenched
in
the Constitution in the form of Section 35 (2) (b) and (c) thereof
which provide:
“
(2) Everyone
who is detained, including every sentenced prisoner, has the right-
……………………………………………………………………………………………
To
choose, and to consult with, a legal practitioner, and to be
informed of this right promptly;
To
have a legal practitioner assigned to the detained person by the
state and at state expense, if substantial injustice would otherwise
result, and to be informed of this right promptly.”
In
Shabalala & Others
v Attorney-General of Transvaal & Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC
) at
740H-741G whereat
Mahomed
DP
(as he then was) said
the following:
“
[28]
The fact that the Constitution contains, in material respects, a
fundamental commitment to human rights and is not merely a
contemporisation
and incremental articulation of previously accepted
and entrenched values shared in our society, is illustrated by the
approach of
the Appellate Division in the cases of
S
v Rudman and Another
;
S v Mthwana
1992
(1) SA 343
(A)
.
Nicholas AJA
,
giving the judgment of the Court, rejected the suggestion that
recourse could be had to the principle of a 'fair trial' to justify
the finding that an indigent accused person who did not have the
means to pay for his or her own defence was entitled to be provided
with legal representation, if necessary, at the expense of the State.
(
S v Davids
;
S v
Dladla
1989
(4) SA 172
(N
) at
178C-E) He stated that none of the authorities relied on in the case
of
S v Davids
.
(
S
v Dladla
1989 (4) SA 172
(N
)
at 178C-E)
'when
viewed in their contextual setting, afford any support for the
learned Judge's basic premise that the touchstone in a procedural
appeal is whether the trial was unfair . . . The Court of Appeal does
not enquire whether the trial was fair in accordance with "notions
of basic fairness and justice", or with "the ideas
underlying . . . the concept of justice which are the basis of all
civilised
systems of criminal administration". The enquiry is
whether there has been an irregularity or an illegality, that is a
departure
from the formalities, rules and principles of procedure
according to which our law requires a criminal trial to be initiated
or conducted
. . .' (
Rudman’s
case supra n 46 at 376J-377C)
[29]
The basic distinction made by
Nicholas
AJA
is between an
attack made on behalf of an accused person on the general ground that
his or her 'right to a fair trial' was breached
and an attack on the
narrow ground that certain specific rules and formalities which were
entrenched in the law were not satisfied.
The latter attack was held
to be competent. The former was not. It is precisely this distinction
which is affected by s 25(3) of
the Constitution, which expressly
guarantees to every accused person the right to a fair trial. If
such a fair trial is denied to
an accused it can found a competent
attack on any ensuing conviction. The accused is not limited to an
attack on any specific rules
and formalities entrenched in the
Criminal Procedure Act. The
Constitution imports a radical movement
away from the previous state of the law.”
See
also
S v Pienaar
2000 (2) SACR 143
(NC
) at
158j-160f.
The
Magistrate acted grossly irregularly in advising or influencing the
accused that because he believed he was guilty and prepared
to
tender such a plea therefore he can dispense with legal
representation. Further, to allow the accused a mere two minutes or
even only a few days to make up his mind on whether, in the light of
the magistrate’s ill-considered advise, he still requires
the
assistance of an attorney is grossly unreasonable, irregular and
unfair. On this basis alone the case ought to be set aside.
The
conviction ought to be set aside for another reason. The Magistrate
ought to have established by means of questioning him whether
he
fully appreciated what was meant to drive a motor vehicle on a
public road with the alcohol content in his blood exceeding the
legal limit, as described in the charge sheet. The Magistrate
should also through this method of interview have tried to establish
whether the accused admitted all the elements of the offence
preferred against him.
We
are satisfied that the accused, for the aforegoing reasons, did not
receive a fair trail and that the conviction and sentence
ought to
set aside.
Order
:
The
conviction and sentence of the accused are set aside.
If
he has paid the fine imposed on him or part thereof same must be
refunded to him.
_______________________ _______________________
F
D KGOMO BC MOLWANTWA
JUDGE
PRESIDENT ACTING JUDGE
NORTHERN
CAPE DIVISION NORTHERN CAPE DIVISION