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[2024] ZAECMHC 56
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Makau v S (CA&R 02/2024) [2024] ZAECMHC 56 (4 June 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE DIVISION – MTHATHA]
Case
no: CA&R 02/2024
In
the matter between:
MAQEBA
MAKAU
Appellant
and
THE
STATE
Respondent
APPEAL
JUDGMENT
HINANA
AJ:
[1]
This is an appeal judgment which originates from the Mount Fletcher
District Court. The appellant
had been convicted and sentenced to a
period of (3) three years. He filed an application for leave to
appeal which was dismissed
and he filed a petition which was granted
on 24 January 2024.
[1]
On
facts
[2]
The appellant was, on 09 May 2023 found guilty of having contravened
the protection order which
was granted against him by insulting one
Lulisile Mlamla by calling him a “dog” and threatening to
kill him.”
[2]
[3]
Grounds of Appeal
3.
AD Conviction
In his notice to appeal,
the appellant lists the following grounds of Appeal:
3.1. (a)The learned
magistrate erred in not explaining the appellant’s rights in
terms of section 35(3)(
f
) of the Constitution, Act 108 of
1996, as amended, after non availability of his legal representative;
3.1. (b)The learned
magistrate erred in not affording the appellant an adequate
opportunity to engage services of another legal
representative if the
legal practitioner of record was not available;
3.1. (c) The learned
magistrate failed to adequately inform the appellant about choices he
had in respect of legal representation
and possible implications of
having no legal representation at the trial;
3.1. (d)The learned
magistrate erred in not affording the appellant adequate time to
prepare for the trial;
3.1. (e)The learned
magistrate erred in failing to safeguard the rights of the appellant
in terms of section 35 of the Constitution
Act 105 of 1996; (sic)
3.1. (f)The learned
magistrate erred in admitting exhibits (Protection Order and Return
of Service) without applying a proper procedure
for admissibility on
such exhibits;
3.1. (g)The learned
magistrate erred in admitting the protection order by consent even
though the appellant did not consent in respect
of the admissibility
of the protection order;
3.1. (h)The learned
magistrate erred in relying on the contents of the protection order
which contents were not proven by the State;
3.1. (i)The learned
magistrate erred in relying on the interim protection order and
confirmed final protection order even though
there was no evidence
led to that effect;
3.1. (j) The learned
magistrate erred in concluding that the appellant insulted the
complainant with the word “asshole”
even though no such
evidence was led;
3.1. (k)The learned
magistrate erred in not applying the provisions of section 342
A
of the
Criminal Procedure Act 51 of 1977
, as amended, in the
circumstances;
3.1. (l)The learned
magistrate erred in not assisting the applicant as an unrepresented
accused;
3.1. (m)The learned
magistrate erred in concluding that the State witnesses corroborated
each other and they had no reason to falsely
implicate the appellant
to the commission of the offence;
3.1. (n)The learned
magistrate erred in finding that the State had proved its case beyond
reasonable doubt.
4.
AD Sentence
4.1
The learned magistrate erred in sentencing the appellant to undergo
three (3) years direct imprisonment
which sentence induces sense of
shock and disproportionate to the crime.
[3]
5.
ANALYSIS
The
grounds of appeal are, to a large extent, interwoven and relate to
the appellant’s constitutional rights. The Preamble
to the
Constitution
[4]
provides that:
“
We,
the people of South Africa, …. [l]ay the foundations for a
democratic and open society in which government is based on
the will
of the people and
every
citizen
[5]
is
equally
protected by the law.”
(My
underlining.)
6.
The Bill of Rights
[6]
is the cornerstone of South Africa’s democratic government and
it is for everyone to enjoy the constitutional rights contained
in
section
35 of the Constitution.
7.
This appeal is founded on the failure
by the presiding magistrate to properly apply his mind to
the
prescripts of section 35(3) (
a
)-(
o
) of the
Constitution, these include a right to fair trial; a right to give an
accused sufficient time to prepare for his defence;
right to legal
representation, or to have one allocated to him in the event that the
accused is unable to secure his or her own
legal representative.
8.
In this matter, the magistrate committed serious misdirections. The
following hereunder is
the extract from the record:
8.1.
“
Court
: - I have called your attorney Mr Makau, he said
that you are giving him problems. He is unable to consult with you in
that you
are saying that is too far Matatiele and I am not going to
postpone this case. We will proceed.
A
ccused
: - Sorry
sir, can I talk please
Prosecutor:
- Yes, you can
Accused
:
- Sir, can you please not listen to my lawyer, Because sorry,
Sir, he, my lawyers have ended behaving like this because
Mr Lande is
the one who always have communication with my lawyers without my
consent.”
[7]
(sic)
9.
Further, the debate between the magistrate and the appellant appears
below:
“
Court
:
I cannot come here Mr Maqeba, each and every day and this case is not
proceeding. Because of you.
Accused
:
Yes
Court:
Non representation. I cannot travel all the way
from Matatiele to be from (sic)
Accused
:
Yes
Court
:
Maluti
Accused: Yes
Court
:
In fact. To come here and stay and postponed the case I
cannot. I am not willing to do that.”(sic)
10.
It is always important for judicial officers not to directly
communicate with one legal representative in the absence of another.
It is trite that justice must be seen to be done. The magistrate
should have communicated with both legal representatives at the
same
time and same place. This would have been possible to ask his
clerk to call both of them to his office.
11.
Van der Westhuizen J in
s
v
Jaipal
[8]
had this to say:
“
The
right of an accused for a fair trial requires fairness to the
accused, as well as fairness to the public as represented by the
State. It has to instill confidence in the criminal justice system
with the public, including those close to the accused, as well
as
those distressed by the audacity and horror of crime.
…
The
fairness of a trial is threatened if a court is not independent, does
not apply the law impartially, or does not function free
from
interference.
Inappropriate contact by a
judicial officer with any of the parties in a trial,
or with witnesses, outside the formal
court proceedings and especially in the absence of the parties on the
other side
, cannot be conducive to the
fairness of the trial. The principle of that justice must not only be
done but also seen to be done
is well known, and has been recognized
by this Court as at the heart of a fair criminal trial.”
(My underlining.)
12.
It was the legal duty of the magistrate to have explained to the
appellant the implications of being
unrepresented, and even inform
the appellant to apply for Legal Aid. The magistrate should
have encouraged the appellant
to be legally represented.
[9]
13.
In
s
v Melani and Others
[10]
,
Froneman
J had this to say:
“
The
purpose of the right to counsel and its corollary to be informed of
that right…is thus to protect the right to remain
silent, the
right not to incriminate oneself and the right to be presumed
innocent until proven guilty.”
Submissions
by the parties
14.
The State conceded that trial was unfair and the sentence was harsh,
and further prayed that both sentence
and conviction should be set
aside. The appellant’s counsel did not make submissions in view
of the concession by the State.
15.
I have alluded to the fact that the grounds of appeal are interwoven
and in view of the position I take;
I do not deem it appropriate to
deal with every ground of appeal, suffice to find that in my view,
the trial of the appellant was
unfair and concession by the State was
correct. The misdirection by the Magistrate has led to the
injustice. The right to
legal representation is central to the
fairness of criminal trial.
[11]
As a result, the conviction and sentence must be set aside.
16.
Conclusion
Accordingly, I make the
following order:
1.
The appeal is upheld.
2.
The decision of the court
a
qou
is set aside and substituted with
the following:
The accused is found
not guilty and is discharged.
HINANA
AJ
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered
MAKAULA
J
JUDGE
OF THE HIGH COURT
Matter
heard on
30
April 2024
Judgement
Delivered on
04
June 2024
APPEARANCES
For
the APPELANT
MR
JACA
Instructed
by
Jaca
& Partners Inc
C/O
Inga Njingolo Attorneys
60
Wesley Street
MTHATHA
For
the RESPONDENT :
MR
BIDLA
Instructed
by
The
Director of Public Prosecutions
94
Sisson Street
Fortgale
MTHATHA
[1]
See
order granting Leave to Appeal, p 7
[2]
Page
6, the charge.
[3]
Pag
es
1-7
of the separately bound index
.
[4]
Act
108 of 1996
[5]
The
Preamble of the
Constitution,
Act
108 of 1996.
[6]
Ibid
section
7
.
[7]
Page
line 11 of the record.
[8]
[2005] ZACC 1
;
2005
(1) SACR 215
(CC)
at
paras 29 and 31.
[9]
S
v
GR
2015
(2) SACR 79 (SCA).
[10]
1996
(1) SACR 335
(E) at p 348.
[11]
S
v Luwani & Another
2004 JDR 0500 (E).