THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
CASE NO: 376/2004
Reportable
In the matter between
PIETER MAY Appellant
and
THE STATE Respondent
Coram: Mthiyane, Lewis, Mlambo JJA
Heard: 10 May 2005
Delivered:
Summary: The trial of an undefended accused held not to have been
vitiated by any irregularity: no prejudice established. Convictions on two
counts of rape and one of theft c onfirmed. Sentences reduced to take
into account time spent in custody awaiting trial: sentence for theft
ordered to run concurrently with one sentence for rape.
JUDGMENT
LEWIS JA
2
[1] The trial of an unrepresent ed accused inevitably presents
problems. In this matter, the appellant, who conducted his own
defence in the trial court, argues that several aspects of the trial in
the Regional Court, Bellville, were pre judicial to him such that the
trial was unfair, and the convictions and sentences imposed in
respect of four counts should a ccordingly be set aside (a fifth
conviction was set aside in an appeal to the Cape High Court, per
Newdigate AJ, Selikowitz J concurring). The further appeal lies
with the leave of this court. The appellant argues also, on the
merits, that evidence of his identity was unreliable.
[2] The regional court convicted the appellant on two counts of
rape; one count of housebreaking with intent to steal; one count of
attempted housebreaking with intent to steal; and one count of
theft. He was sentenced to ten years’ imprisonment on each of the
counts of rape; six years’ im prisonment in respect of the
3
housebreaking on count 2; three years imprisonment in respect of
attempted housebreaking on count 3; and six years’ imprisonment
in respect of the convic tion for theft on count 4. The conviction on
the count of attempted housebreaking was set aside by the court
below. The appeal to this co urt lies against the other four
convictions and the respective sentences.
[3] The complaints raised by the appellant about the conduct of
the trial are that the regional magistrate (a) failed to explain to him
his right to legal representation, and that should he be unable to
afford a legal practitioner, one would be assigned to him at state
expense; (b) failed properly to expl ain to the appellant his rights
relating to cross-examination of state witnesses; (c) unfairly
curtailed cross-examination by insisting that questions be put
through him to the state witnes ses, disallowing or limiting
questioning by the appellant, showing irritation and intolerance of
4
the appellant’s questions, and failin g to assist the appellant in
questioning; and (d) did not conduct the trial in an impartial manner
in that, inter alia, he exami ned the state witnesses where the
prosecutor had not done so sufficient ly. The appellant argues also
that the evidence of his identif ication was flawed and that there
were material discrepancies in the evidence of the state witnesses
which affect their credibility.
The alleged failure by the magistrate to inform the appellant of his
right to legal representation
[4] Counsel for the ap pellant argues that the magistrate failed to
advise the appellant that he had th e right to legal representation,
and that the state would provide le gal aid. The Constitution now
firmly entrenches not only the ri ght to legal representation, but
provides also that an accu sed person has the right to
representation at state expense ‘if substantial injustice would
5
otherwise result’. The accused is entitled also to be told about this
right ‘promptly’.1
[5] The court a quo found that t he appellant’s contention about
the lack of explanation of the righ t to legal representation failed to
take into account the fact that prior to the commencement of the
trial the appellant did indeed have a legal representative. The trial
court noted (on 15 March 1999) as follows:
`Besk teenwoordig. Besk het voor aanvang van hof aansoek gedoen vir
regshulp wat goedgekeur is.’
The record states on a subsequent date (22 November 1999):
‘Advokaat vra te onttrek. Probeer met beskuldigde oor sekere aspekte van
saak. Vertrouens posisie word geraak. Sien nie kans vedediging waar te
neem. Beskuldigde was so ingelig. Hof aangedui gaan self saak doen.
Beskuldigde bevestig. Gaan self saak doen.’
1 Section 35(3)(f) and (g).
6
The matter was then postponed until 29 March 2000. It would have
been obvious to the magistrate, in the circumstances, that the
appellant was aware of his right to legal representation and that he
chose not to avail himself of it. There was, moreover, a substantial
period of time (when the appellant was in custody) between the
appearance with an advocate and the time when the accused
confirmed that he would continue with the trial without legal
representation. As an awaiting-t rial prisoner he would probably
have been made aware that he had a right to another
representative once the first advoc ate had withdrawn. But we do
not know that this is the case and the appellant himself presented
no evidence, either to the trial court or to the court below, of any
prejudice that he suffered by virtue of lack of representation.
2
2 S v Rudman; S v Mthwana 1992 (1) SA 343 (A) at 391H-J, where the court suggested that it
was open to an appellant to show that he was unaware of his right to legal representation and
that there has been a resultant failure of justice.
7
[6] Of course, the magistrate should have informed the appellant
of his right to legal representati on, at state expense, expressly in
court, and should have confirmed th at he was aware of the right to
have a different advocate or atto rney appointed at state expense.
It was apparently taken for granted that he was aware of his rights.
Judicial officers should not assume that accused p eople are fully
aware of their rights and of the implications of acting in their own
defence. Even if the assumption is correct, it is incumbent on the
person presiding over a criminal trial to ensure that the accused is
fully informed, in open court, no t only of the right to legal
representation but also of the consequences of not having a
lawyer to assist in the defence.
8
[7] However, as this court has previously said (in Hlantlalala v
Dyantyi NO, 3 ‘the crucial question to be answered is what legal
effect such irregularity had on th e proceedings at the appellant’s
trial. What needs to be stressed immediately is that failure by a
presiding judicial officer to inf orm 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.’ In additi on it must be shown that the
conviction has been tainted by t he irregularity – that the appellant
has been prejudiced.4
[8] Whether or not prejudice has res ulted from the lack of legal
representation is really a question that can be determined only by
having regard to the whole trial, and the way in which it was
conducted by the judicial officer; and the ability, as shown during
3 1999 (2) SACR 541 (SCA) at 545f-h.
4 See S v Radebe; S v Mbonani 1988 (1) SA 191 (T), approved in S v Rudman; S v Mthwana
above at 382C-H.
9
the course of the trial, of t he accused to represent himself
adequately; and to whether the evidence adduced has led
justifiably to the conviction and sentence.
[9] Counsel for the appellant co ntends further that the appellant
was prejudiced by the magistrate’s apparent failure, before
sentence was passed, to explain to the appellant that he should
adduce evidence as to his perso nal circumstances in order to
mitigate the sentence. Had he been represented such evidence
would undoubtedly have been pl aced before the court, and a
different approach to sentence taken.
[10] The complaints made by the appellant about cross-
examination, undue intervention by the magistrate both in so far as
cross-examination is concerned, and in so far as assisting the
state in the leading of its witnesses, and failure to present
mitigating evidence, all have a bearing on the question whether the
10
failure of the magistrate to explai n the right to legal representation
expressly, and after the appellant’s first representative had
withdrawn, did adversely affect the appellant. I shall accordingly
deal with these different complaints before making any
determination.
The right to cross-examine
[11] The argument as to the failure of the magistrate to explain to
the appellant his right to cross -examine is two-fold. First, the
appellant contends, the nature of cross-examination and its
importance were not fully explained. And secondly, when the
appellant did attempt to ask quest ions of state witnesses his
questioning was curtailed. The limitation lay in the fact that at the
outset of the trial the magistrate in structed the appellant to put all
questions through him, and in t hat when the appellant did ask
11
questions, admittedly repeating t he same ones again and again,
the magistrate became impatient.
[12] The importance of c ross-examination as part of a fair trial is
emphasised in S v Tyebela
5 and elucidated in S v Wellington .6
aTyebela deals with the impatient and sarcastic presiding officer,
of which the appellant in this ma tter complains too. Milne JA said
in aTyebela that an accused is entitl ed to a careful and patient
explanation of the rules of procedure and evid ence, one not
afforded to the appellant in that matter:7
‘I know only too well from experience how protracted and seemingly irrelevant
most of the cross-examination conducted by an accused person, appearing in
person, often is, and how irritating it can be. The Judge’s plain duty is,
however, to maintain his cool-headedness in the face of irritation . . . ‘.
5 1989 (2) SA 22 (A) at 31ff.
6 1991 (1) SACR 144 (Nm) at 148c-e. See also S v Raphatle 1995 (2) SACR 452 (T) at 454i-
455a; and S v Malatji 1998 (2) SACR 622 (W) at 625f-g.
7 At 31D-E, and 32I-33A.
12
[13] In Wellington, dealing not with an illiterate and uneducated
appellant, but with a man who could read and write, Frank AJ said
that he was entitled to an explanation that covered:
‘(a) that he had a right to cross-examine; (b) that it was his duty to put to the
state witnesses any points on which he did not agree with such witnesses;
and (c) that the purpose of cross-ex amination was to elicit evidence
favourable to himself and to challenge the truth and accuracy of the State
evidence’.
The court continued:8
‘Failure to explain to an unrepresent ed accused his rights with regard to
cross-examination is in my view t antamount to a failure to allow cross-
examination. The latter is, of course, a gross irregularity.’
[14] I shall deal first with t he argument that the importance of
cross-examination and what it entails were not properly explained
to the appellant. It is contended that he was not told of his right to
8 At 148d-f.
13
test the evidence of the state wi tnesses and to ask questions that
might prove his defence; that he should put his defence to
witnesses; and what the consequences would be if he failed
properly to cross-examine.
[15] The magistrate in fact spent some time explaining that
questions should be put to the wi tnesses and that the appellant
should contest any evidence he thoug ht to be incorrect. It is worth
setting out the initial explanation, and the appellant’s responses, in
full.
‘Hof: Ek dink dit is van belang dat u van die begin af vir my mooi verstaan, dat
ek en u mekaar nie misverstaan nie. Verstaan? - - - Ja, My Edele. - - -
Hierso is nou vyf klagtes, vyf klagtes en dit maak dit nou klaar vir my moeilik
by die verhoor aan die einde van die dag met die vyf klagtes. U verstaan
waar daar nou verskillende bewerings gemaak word. Daarom ek gaan nou vir
u sekere maatreëls verduidelik, u m oet nou mooi luister wat ek vir u
verduidelik en dan wil ek vi r u vra wanneer die getuies kom getuig dat u mooi
14
luister wat die getuies sê. U verstaan? - - - Ja. - - - Want as die getuies klaar
getuig het dan moet ek vir u vra of u verskil met die getuies, as daar iets is
waaroor u verskil ek gaan vir u geleentheid gee om di t waaroor u verskil om
daaroor vrae te vra . Maar ek wil ‘n reëling maak dat u die vrae vra hier deur
my sodat ek die vraag kan mooi form uleer dat almal dit verstaan en dan sal
ek so aan die getuie stel en dan hoor ons wat is die antwoord. Verstaan u dit
so? - - - Ek verstaan. - - - Ek wil nie hê daar moet ‘n oor en weer gestryery
ontaard hier tussen u die getuies want ons kom nêrens nie. Baie van die vrae
wat u miskien sal vra, gaan ek vir u sê dit maak nie sin nie of dit is nie
relevant nie, dit beteken niks nie, dan moet u maar so aanv aar dat dit wat ek
vir u sê dat ek in alle waarskynlikheid korrek is. U verstaan? Verstaan u wat
ek sê? - - - Ja, My Edele.’ (My emphasis.)
The magistrate then proceeded to explain other procedures and
rules to the appellant before the state called the first witness. The
court below, after examining the record, concluded that the
appellant’s right to cross examine had been adequately explained.
15
[16] I agree. The explanation migh t have been fuller; the purpose
of questioning might have been made clearer; but the appellant
was given a full opportunity to indicate whether he understood
what was expected of him, and t hat included his right to contest
the evidence of state witnesses, and to put his own version of
events to them. Moreover, on re peated occasions the magistrate
reminded him what he should be doing. I shall refer to instances of
this in due course.
The curtailment of cross-examination
[17] The first question to be ask ed is whether the insistence by
the magistrate that he put questions on behalf of the appellant was
in itself a curtailment of the right properly to cross-examine. In my
view, it is not inherently inappropria te for a judicial officer to
attempt to formulate questions more skilfully than an
unrepresented person would do himself. However, it is the manner
16
in which this is done that will suggest whether the right to ask
questions correctly has been curtailed. The instances where the
appellant was ‘assisted’ in this regard are far too numerous to list.
A few examples will suffice.
[18] At the end of the first state witness’s evidence in chief, the
court said to the appellant:
‘Is daar nou iets wat die beampte [a policeman] gesê het wat u nie saamstem
nie? - - - Mnr Edele, ek verstaan, m eneer sê, meneer het vir my . . . . - - -
Praat meer hier nama my toe. - - - Okay, ek verstaan wat meneer vir my sê
hier. En al dinge is bewerings wat meneer maak en aan my, sien meneer. - - -
Ja. -- - Hoekom, soos ek hoor in sy verklari ng wat hy aflê . . . - - - Meneer, is
daar iets wat die beampte gesê het wat u nie saamstem nie? - - - My Edele,
ek stem nie eintlik saam met die verk laring wat die beampt e . . . - - - Maar
wat is verkeerd in sy verklaring? - - - Verklaring is, hy het my gekry, ek het nie
oor drade gespring wat soos die meneer beweer nie. - - - Ja. Hy sê hy het nie
oor die drade gespring nie.’
17
The witness’s response follo ws. The appellant continued
thereafter:
‘Ek het gestap in die straat eintlik . --- Sê u nou u het daardie tyd van die
oggend doodnormaal in die straat ges tap toe kom die beampte enan hy
arresteer sommer vir u. Is dit wat u wil sê aan ons? --- Ja, my Edele’.
‘Stem u saam met hom?’ the court then ask ed the witness, who
said it was untrue.
‘Nog iets anders wat u oor wil stry? (My emphasis.)
[19] The record is replete with such interchanges. What this one
reflects is that the appellant wa s aware of a statement that had
been made previously by the wi tness, thus showing some
familiarity with proceedings. It shows also how the appellant
struggled to formulate what he want ed to ask, in effect giving his
evidence, albeit not under oath.
18
[20] The following extract from t he evidence of the complainant
on the first charge of rape shows the same pattern:9
‘HOF: Ja, dit is dan nou haar getuien is, weereens maar weer soos ons wat
gemaak het in die ander twee getuies, wi l ek eerstens net hoor oor dit wat sy
sê wat daar gebeur het, is daar vrae wat u wil stel aan haar daaroor? - - - My
Edele, ek het eintlik ni e baie vrae vir die dame nie ... (onduidelik) vir myself
kan ek maar net sê ek was nie daardi e dag op daardie t oneel gewees nie,
want ek het nie . . . - - - Kom ons st op eers daar. Hy sê eerstens dat as u sê
hy was binne-in die huis, da n maak u ‘n fout, hy wa s nie daar nie. - - -
[Complainant] Ek is verseker hy was daar.
HOF: Goed. Dit is die antwo ord daarop. Volgende vraag.
BESKULDIGDE: Nou dame, hoe verseker is u eintlik dat ek daar op die
toneel gewees het?
HOF: Hy wil weet hoe verseker is jy? - - - Ek is verseker want jy het ‘n paar
keer saam met my gestap in die hui s en jy was naby my en kon mos gesien
het in jou gesig dis jy.
The extract is taken directly from the record.
19
BESKULDIGDE: Kan dame enige beskrywi ng gee volgens, is dit toe die
‘person’ wat hier voor jou staan, is dit hy eintlik is? - - - Dit is hy, die lengte
van jou lyf en die gebou van jou lyf. - - - Is mevrou doodseker? - - - Ja, ek is. -
- - In die begin, van die begin tot hoe lank het die misdaad plek gevat nou.
HOF: Sy het gesê so 50 minute omtrent.
BESKULDIGDE: Nou watter maand het die misdaad plek gevat dame?
HOF: Ek kan nie hoor nie.
BESKULDIGDE: Watter maand?
HOF: Watter maand?
BESKULDIGDE: Ja, dit is mos nou 1999, wa tter, uit watter j aargetal uit kom
die saak aan. Haar getuienis was die 13de Mei van 1996. - - - Ja.
BESKULDIGDE: Die 13de, nou is u nog al tyd verseker dat dit ek is wat
hier voor jou staan? - - - Ek is verseker, ek sal dit nie vergeet nie. - - - Is u
dodelik verseker? --- Ek is verseker. - - - Ek glo ook nie, ek glo dit ook nie.
HOF: Ek kan nie hoor nie.
BESKULDIGDE: Ek sê ek glo nie ek is die ‘person’ wat hier voor staan
vanmore nie. - - - Ek is verseker .
20
HOF: Ja, sy het nou al ‘n paar maal nou al gesê sy is verseker en sy is
doodverseker en ek weet nie hoe versek er sy nou nog moet wees nie. Is
daar iets anders wat u nog vir haar wil vra?
BESKULDIGDE: Wat ek vra My Edele, ek ... (onderbreek).
HOF: Oor die kleredrag wat sy sê u aangehad het, daaroor iets wat u wil
vra?’
[21] This passage was referred to by the court below, which
concluded that the court’s impatience with repetitive questioning
did not render the trial unfair. Again, I agree. The passage shows
that the appellant’s questions were put repeatedly, that the
magistrate assisted in formulating them, and that he suggested a
further line of enquiry, as to the clothing that he was wearing.
When the magistrate states that the question has been asked and
answered repeatedly he is correct.
21
[22] Mr King, for the appellant , argued, however, that the manner
of the magistrate was intimidating. In particular the constant use of
the question ‘Nog iets?’ is said to imply that the appellant should
not continue with his questions. But the appellant, in my view,
appears not to have been affected. He continued despite any
possible implicit suggestion that he should refrain from asking
further questions. One passage referred to by Mr King does indeed
reflect the magistrate’s repeated putting of the question ‘Nog iets?’.
But the same passage also reflects the appellant’s persistence in
asking questions. It reads:
‘HOF: Enigiets aan die getuie wat u wil vra, beskuld igde? Vra maar so deur
die tolk as daar is?
BESKULDIGDE: My Edele, weens myself meedeel ek maar net dat ek was
nie op daardie toneel gewees nie.
HOF: U was nie op die toneel nie.
22
BESKULDIGDE: Ek was nie op die ton eel nie en hierdie man wat vanmôre
hier staan, hy het nie vir my gesien op die toneel nie, dit is alles leuens stories
en dit is opgemaakte dinge.
COURT: The question is that you didn’t saw him on the premises, it is all lies.
What is the answer to that? - - - [Witness] No, I saw him, it was him.
HOF: Nog iets?
BESKULDIGDE: Mag ek vra die skoe ne wat ek aangehet het, hoe het dit
gelyk. - - - ‘Sorry’, what about the shoes? - - - Die skoene wat ek aangehet
het hoe het dit gelyk? ... Net een sk oen opgehet, ‘n tekkie en dit was op jou
regtervoet.
HOF: Anything else? Nog iets? ... (geen hoorbare antwoord).
Is dit al?
BESKULDIGDE: Agter daai wat meneer, t oe het meneer, hoe het meneer vir
my eintlik soos meneer vanm ore sê is hy, hoe verseker is meneer eintlik dat
ek die ‘person’ is wat vanmôre hier staan?
COURT: Do you follow his questions in Afrikaans? - - - Ja. Hy wil weet
hoe verseker is u dat - - - Verseker ek is?
23
Uhm, is u verseker? - - - Ek is baie verseker, meneer.
Ja. Nog iets?’
I do not consider that the repeated use of the question ‘nog iets?’
did in fact have the effect of curtailing questioning. Indeed, the
appellant continued questioning, albeit repeating himself.
[23] Similarly, where the appel lant persisted in questioning a
police witness, Mr Abdul Ederies , and the court did not see the
reason for the questions, I consider that he was correct to suggest
that the appellant explain why he was asking the questions. The
magistrate said, interrupting a line of questioning:
‘Kyk beskuldigde, ek verstaan nie eint lik wat u probeer bereik met die vrae
nie. Ek moet eerlik vir u sê vir dit wat die Hof moet bevind, weet ek eintlik nie
wat u probeer vasstel by die getuie nie, maar wat is die doel van die vraag
nou? . . . . Luister wat ek vir u wil sê. Hoekom wil u weet of daar ‘n voertuig
op die perseel was dat ek kan probeer agterkom wat die belang is van die
vraag.’
24
[24] The appellant persisted for a while before the magistrate
gave him an opportunity to ask a la st question. As counsel for the
state argued, there are several instances where the magistrate
assisted the appellant in framing his cross-examination. Some are
referred to above. It is not necessary to deal with them all.10
Lack of impartiality on the part of the trial court
[25] The appellant cont ends that the magistrate was not impartial.
Several factors, he argues, bear this out. The complaint about the
failure to explain the purpose of cross-examination, and the
curtailment of cross-examination are argued to be demonstrative
of lack of impartiality. As indica ted the argument is not borne out
by the record. The appellant cont ends also that the magistrate
unfairly assisted the state in presenting its case. The clearest
instance of this, the appellant argues, is the questioning of the
10 Counsel referred to pages 69, 71, 120-123, 139-143, 146-148, and 163-164 of the record.
All the passages referred to bear out the contention that the appellant was properly assisted
in cross-examining.
25
complainant, Beauty Mnyateli, in respect of the charge of
housebreaking and rape. When the prosecutor had finished his
examination, and before the appellant was given the opportunity to
cross-examine, the court question ed the complainant extensively.
This amounted, argues counsel fo r the appellant, to making the
case for the state. The magistrate’s questioning is set out below:
HOF: Ja, nou los u my weer met ‘n paar vrae. Ons het nou hierso op ‘n
belangrike stadium van u getuienis het ons nou wegge draai, heeltemal op ‘n
ander koers, laat ons dit net klaar m aak. U het gesê dat u werkgewer het
daar opgedaag, die man en die vrou en hulle het die polisie gebel. En ek
neem aan die polisie het toe nou daar gekom. Korrek? - - - Ja. - - -
Het u op enige stadium aan iemand gesê van die feit dat u na bewering
verkrag was? - - - Ja, ek het vir hulle gesê. - - - Vir wie het u gesê? - - - Die
vrou. - - - Die vrou, die werkgewer? - - - Ja. - - -Was sy die eerste persoon
aan wie u dit gesê het? - - - Nee, my su ster was die eerste persoon. - - -Vir
wie u gesê het? - - - Ja. - - - Op watte r stadium het u vir haar gesê? - - - Ek
26
het vir haar gesê die man het my verk rag. - - - Ja, maar nou op watter
stadium. Kyk, u het mos nou vir die Ho f gesê, hier op ‘n tydstip het die
beskuldigde vir julle daar in die badkam er laat sit en hy het gekom met, gesê
hy soek ‘n plastieksakkie en hy sê vir julle moet bly sit in die badkamer tot hy
weg is julle moenie uitkom nie - - - Toe hy kap, toe hy gaan kap aan die deur,
toe hy my teruggebring het nadat hy my verkrag het. - - - Ja. - - - toe het ek vir
haar gesê, toe was hy al uit. - - - Nadat die beweerde verkragting in die
kamer plaasgevind het, en u nou terugkom daar in die badkamer, het u toe vir
u suster gesê? - - - Ja. - - - Wat het u vir haar gesê? . . . Ek het vir haar gesê
die man het my verkrag. - - - Op die stadium wat u dit vir haar sê, was daar
nou fout met u? - - - Nee, sy het net gesê as ons uitkom moet ek nie gaan
was nie. - - - Ja-nee, maar uself nou, wat was u toestand, toe u dit vir haar
sê? - - - Ek was onsteld en ek het ge huil. - - - Nou goed, nou kom ons by ‘n
ander aspek wat ook nie gedek is nie. Di t is nou die identiteit, die man sê hy
dra geen kennis van hierdie voorval nie. U sê dit is die eerste keer die dag
wat u hom gesien het? - - - Ja. - - - Het jy hom nie geken voor die tyd nie? - -
- Nee. - - - Nou hoekom sê jy dit is hy wat daar binne -in die huis was? - - -
27
Want ek kan sien aan sy gesig en sy hare. Herken u hom aan sy gesig en die
hare? - - - Ja. - - - Sy hare is nou, wat noem julle dit? . . . Rasta hare. - - -
Die Rasta hare. Weet jy watter klere hy aangehad het? - - - Hy het ‘n geel ‘T-
shirt’ aangehad met ‘n grys ‘jacket’. - - - Grys baadjie. - - - Ja. - - - Nog iets?
- - - . . En ‘n grys sweetpak broek. Grys. - - - Sweetpak broek, ja. - - -
Ja. . . . Met bruin tekkies en wit sokkies. - - - Nou goed, soos u nou hierdie vir
Hof vertel het wat na bew ering gebeur het lyk dit vi r my dat u was nou die
heeltyd was u nou naby en in noue kontak met die man, nè? .- - - Ja.
Julle was mos die heeltyd daar bymekaar? - - - Ja. - - - En dit was lig? - - -
Ja. - - - En die tyd wat u sê dit omtrent gebeur het, was net so hier na elfuur,
nè? - - - Ja.
. . . .
As u nou moet skat, hoe lank sal u sê het hierdie hele voorval nou gebeur
vandat u nou die eerste keer soos u sê die beskuldigde gesien het daar in die
gang, tot en met die tyd wat hy nou daar uit die huis uit is. As u nou moet sê
hoe lank sal u sê hoe sal u sê was dit om trent? - - - Dit was seker ‘half past
twelve’, as ek kan skat. - - - Ja, kom ons praat nou hoeveel minute sal u
28
omtrent sê was dit wat hy daar in di e huis nou was na bewering wat alles
gebeur het? Van hy daar gekom het totd at hy weg was, hoe lank sal u sê
was dit omtrent, hoeveel minute omtrent? - - - Ek kan sê van ‘ten past eleven’
tot twaalfuur. - - - So 50 minute? - - - Ja. - - - Ne t laastens met dit wat u nou
sê wat nou gebeur het daarso, die gemeens kap dit klink darem nou vir my u
het nie vir hom toestemming gegee vir gem eenskap nie? - - - Nee, ek het nie,
Edele. - - - Het u vir hom iets gesê toe hy nou daar gem eenskap hou? - - -
Nee, ek het net gehuil. - - - Hoe voel u daaroor na die tyd nou? Met dit wat
nou na bewering gebeur het, hoe voel u daaroor? - - - Wel, dit is
onvergeetbaar, Edele. - - - Maar het hul le vir u enigsins vir u ‘n bietjie
berading gegee êrens gegee, ‘n bietjie gehelp. Het u gegaan vir ‘n bietjie
terapie of iets of nie? - - - Nee, die vrou wat ek by werk het altyd saam met
my gepraat. - - - Ekskuus? - - - Die vrou wat ek by werk het altyd saam met
my gepraat.
. . . .
Af lyk, wat sê uself hoe het u gevoel? - - - Ek het vuil gevoel. - - -
Ja, nog iets? - - - En baie keer as ek daar aan dink dan begin huil ek net. ‘
29
[26] Does this amount to undue intervention in the conduct of the
trial? In my view, although the magistrate elicited from the
complainant evidence that the prosecutor did not, it really did
amount to no more than clarification of the evidence led in chief.
The elements of the offence of rape had already been testified to
by the complainant. The only fact put in dispute by the appellant
was identification (that it was not he who raped t he complainant),
as to which the complainant had already testified, and in respect of
which the appellant then proceeded to cross-examine in a passage
already cited. The magistrate el icited facts relating only to the
clothes that the appellant had allegedly been wearing, but
subsequently, as appears in t he passage on the appellant’s cross-
examination of the complainant, suggested to the appellant that he
should question her as to the clothes that the rapist had worn. In
30
the circumstances I do not think that the magistrate in this instance
made the case for the state.
[27] A similar argument is raised by the appellant in relation to the
questioning of him by the magistrate when he gave evidence. The
complaint in this regard is that the magistrate questioned the
appellant for a longer period than did the prosecutor. But that in
itself does not amount to unfairne ss, nor is it clear to me that
contention is correct.
[28] Even if the magistrate did play a more active role than is
usual for a judicial officer, in itself that is not unfair. Judicial officers
are not umpires. Their role is to ens ure that the parties’ cases are
presented fully and fairly, and that the truth is established. They
are not required to be pa ssive observers of a trial; they are
required to ensure fairness and justice, and if that requires
31
intervention then it is fully justifiable. It is only when prejudice is
caused to an accused that intervention will become an irregularity.
In S v Rall 11 the court held that the following principles should
determine whether judicial intervention goes too far.
(a) The trial must be so conducted that the judicial officer’s ‘open-
mindedness, his impartiality and his fairness are manifest to all
those who are concerned in the trial and its outcome, especially
the accused’. ‘The Judge should consequently refrain from
questioning any witnesses or the accused in a way that,
because of its frequency, length, timing, form, tone, contents or
otherwise, conveys or is likely to convey the opposite
impression’.
(b) ‘A Judge should also refrain from indulging in questioning
witnesses or the accused in such a way or to such an extent
11 1982 (1) SA 828 (A) at 831in fin to 833B.
32
that it may preclude him from detachedly or objectively
appreciating and adjudicating upon the issues being fought out
before him by the litigants. As Lord Greene MR observed in
Yuill v Yuill (1945) 1 All ER 183 (CA) at 189B, if he does indulge
in such questioning –
“he, so to speak, descends into the arena and is liable to have his vision
clouded by the dust of the conflict. Unconsciously, he deprives himself of
the advantage of calm and dispassionate observation”. ‘
(c) A judicial officer should refrain from questioning an accused or
a witness in a way that intimidates or disconcerts or unduly
influences the quality or nature of his replies.
[29] Where a judicial officer br eaches any of these injunctions
one must still ask whether the irregularity is such as to cause
prejudice. As I have indicated no unfairness to the appellant has
actually been demonstrated. T he magistrate was apparently
33
impatient at times. But he did not actually prevent the appellant
from cross-examining, and he did not assist the state in making its
case. At most he may be said to have been over-zealous in
ensuring a proper ventilation of the issues. He asked questions not
only of the appellant and his one witness, but of all the witnesses.
And, as has been shown, he assist ed the appellant in the process
of cross-examination regularl y and consistently. In the
circumstances his conduct in this respect did not demonstrate lack
of impartiality. Ultimately the te st is whether even if he had not
intervened, the evidence adduc ed supported the conclusions
reached.
The failure by the court to explai n to the appellant his right to
adduce evidence of his personal circumstances before sentence
was passed.
34
[30] This complaint relates in essence to whether the appellant
was prejudiced because he did not have a legal representative.
There is nothing on the record to show that the magistrate
explained, before sentence was pa ssed, that the appellant was
entitled to give evidence, or to lead witnesses, on his personal
circumstances which might have been taken as mitigating factors.
But the appellant was made aware of his right to place factors
relating to sentence before the court. The magistrate said:
‘U ken die procedure rondom die kwessie van die vonnis, kan u daar vandaan
aspekte voorlê ter versagtiging indien u dit wou doen, of u kan natuurlik
rondom die vonnis kon getuig of getuies roep as daar is. Wat will u maak?’
The response was that he wanted to appeal. The court explained
that he could do so but that sentence had first to be passed. The
appellant’s response was that he had nothing to say. It is far from
clear to me why the explanation as to the appellant’s rights to lead
35
evidence on any circumstances that might affect the sentence was
inadequate. Nor has the appellant at any time tried to place any
personal circumstances that were unknown to the magistrate
before the appeal courts. In my view, therefore, t he absence of
legal representation, and the failure to adduce evidence in
mitigation, did not result in prejudice to the appellant.
The evidence leading to conviction
[31] In each of the charges agains t him, the appellant placed in
issue the identification of him by the state witnesses. I shall deal
with the first, fourth and fifth charges together, as did the court a
quo, since the offences were al l committed at the same address,
the house of Dr and Mrs Kader at 3 Omeria Street, Belhar. The
first charge was of housebreaking with intent to rape and steal,
and the rape of Ms Beauty Mnya teli on 13 May 1996. The fourth
and fifth charges were that on 2 September 1996 the appellant had
36
broken into the same house and raped Ms Melody Mnyateli. The
appellant was not convicted on th e charges of housebreaking into
3 Omeria Street.
[32] Both complainants gave evidence about the first charge of
rape. Beauty Mnyateli (Beauty) test ified that s he and her sister
Melody Mnyateli (Melody) were bot h employed at the home of Dr
and Mrs Kader as domestic workers. They were at the house on
the morning of 13 May 1996. There was also a baby in the house,
assumed by the court a quo to be Melody’s child.
12 Beauty said
that at about 11h00 she was in the kitchen when she saw the
appellant walking down the passage. She identified the appellant,
then in the dock, as the man who had come in to the house. She
did not know him then and had not seen him previously. She
asked him what he wanted. He asked where the other girl was.
12 It is not clear from the record whether it was either of the complainants child, or that of their
employers.
37
Beauty replied that she was in the shower. The appellant then
grabbed her breasts. She ran to the bathroom and knocked on the
door. Melody emerged, with a towel round her, and screamed
when she saw the appellant. He sla pped Melody’s face and pulled
the towel down beneath her breasts. The appellant asked where
the money was kept. They replied that there was no money in the
house. The baby began to cry. The appellant locked Melody in the
bathroom. Beauty fetched the baby . The appellant then unlocked
the bathroom door and Beauty handed the baby to Melody. The
appellant stated that he felt like cutting off the baby’s head.
[33] The appellant then demand ed that she open the door to the
study, which was locked. She did not have the key. He then took
her to the main bedroom and dem anded that she remove her T-
Shirt, which she did because he thre atened her with a sharp knife.
The appellant removed her bra, her shorts and her pants, and then
38
raped her (‘hy het my toe verkra g’). She described the act of
sexual intercourse and said that the appellant had ejaculated.
[34] Beauty testified that s he had then dressed. The appellant
then took her to the bathroom, locked her in with her sister and the
baby, and asked them where the ‘tools’ were kept. They said they
did not have any. They heard him banging on a door, and when he
returned to unlock them he was carrying a bank bag of money,
which he said he was going to distribute to the poor. The study
door had been damaged.
[35] As indicated in t he passage quoted above where the
magistrate had questioned Beauty f urther, she said that he had
been wearing a yellow T-shirt, a grey jacket, grey tracksuit pants
and brown ‘tekkies’. Earlier in her testimony she said that he had
been wearing ‘wit sokkies’ on his hands. She recognised him in the
dock, she said, by his face and his hair – ‘Rasta’ hair. There was
39
no evidence as to how the appellant had entered the house, and
no evidence of any break-in (the reason that there was no
conviction on the charge of housebreaking with intention to steal
and to rape).
[36] Beauty said that when the a ppellant left she and Melody had
run to the house of a neighbour, Mrs Bray, and told her what had
happened. Mrs Bray had phoned Mr s Kader who had returned to
the house. Both Mrs Bray a nd Mrs Kader gave evidence,
supporting this testimony.
[37] The appellant’s version, when he questioned Beauty, and
when he gave evidence, was t hat he had not been there. He
stated that he had not been wearing the clothes described by
Beauty. (Whether he meant that he did not possess such clothes,
or that he had not been wearing them that day, is not clear. Roger
Fortuin, who testified for him, gave evidence that the appellant had
40
worn clothes of a similar descrip tion one day.) The appellant said
that he had had short ‘dreads’ – dreadlock hair worn by Rastas –
at that time.
[38] Beauty’s evidence as to the appellant’s conduct, in so far as
it related to Melody, was corrobora ted by Melody in all material
respects. She could not remember, however, what clothing he had
had on that day, save for w hat she described as ‘baby
handskoene’.
[39] Melody too testified that she had been raped by the
appellant, but some months later on 2 September 1996. He had
appeared in the house when she was in the kitchen making
breakfast at about 11h15. She di d not know how he had got in
because the doors were locked. But again, there was no sign of a
break-in. The appellant asked where the ‘other girl’ was. Melody
said she was away. The appell ant had then made her remove her
41
clothes and raped her in one of the bedrooms. He had then locked
her in the bathroom.
[40] The bell at the entrance gate had rung and the appellant had
opened the bathroom door. She looked out of the window and saw
that an employee of the butcher had come to deliver meat. The
appellant told her to tell the delivery man (Mr Mohammed Antuli)
that he was her brother. She had let Antuli in, and while he was
there she had tried to signify to him that something was wrong.
She had then managed to run aw ay from the house to the
neighbour. Later in the day the police had arriv ed at the Kader
house with the appellant, whom she said to one of the policemen
was the man who had raped her. Melody too identified the
appellant in the dock. She said that she recognized him by his
face, his hair (a Rasta hairstyle) and his voice. She had had the
opportunity to observe him previo usly, when Beauty had been
42
raped, and had good reason to remember him. According to
Melody, on 2 September, when the appellant had raped her, he
had been wearing a maroon T-shirt and black track suit pants. One
of the significant facts about his attire was that he was wearing
only one shoe – a ‘tekkie’. His other foot was bare. The appellant’s
version, put to her in cross-exam ination, was that it was not he
who had been at the house that day, and that he had not raped
her. He led the evidence of a frie nd, Roger Fortuin, as an alibi. I
shall return to this evidence.
[41] Mohammed Antuli, the de livery man from the butcher,
testified that he had arrived at the Kader household at about 12h15
on 2 September 1996, and had rung the bell at the gate twice
before it was opened an d he had driven his bakkie in to the
driveway. He had then knocked at the kitchen door but no one had
answered for some time. When he was let in by the domestic
43
worker (Melody) the ‘suspect’ – the appellant to whom he pointed
in the dock – was with her. He thought she looked shaky, and that
she had tried to indicate that something was amiss, but he had not
realized what was wrong. She had then run off. He asked the
appellant what was wrong with her, but the appellant had not
responded, and ran away. Antuli sa id he had tried to chase the
appellant, who had run off through an adjacent field, but gave up
and returned to the house.
[42] As to identification, Antuli sa id that he had been very close to
the appellant – an arm’s length away – and recognized him by his
Rasta hair, which was shorter then than at the time of the trial. The
appellant had been wearing a maro on ‘sweater’ and black track
suit pants.
[43] The appellant put to Antuli t hat he was lying, that he had not
been there. But he also asked Antuli what shoes he had been
44
wearing, the response to which was that the appellant had been
wearing only one shoe on his right foot – a black ‘tekkie’.
[44] The appellant was identified also by Mr Ronald Juries. The
third charge against the appell ant related to an attempted
housebreaking in to Juries’ house in Chopin Street, Belhar, also on
2 September 1996. I shall not deal with this charge since the court
a quo found, correctly in my view , that there was insufficient
evidence that it was the appellant who had attempted to break in to
the house (the only witness to the incident was Juries’ daughter,
Ronecia, who could not identify the appellant). However, the
appellant, in cross-examining Juries, who had been summoned
home after being told of an atte mpted break in, asked Juries: ‘Die
tyd toe meneer by my kom, wa tter kleredrag het ek eintlik
aangehet’. The magistrate, clarifying what was being asked by the
appellant, said: ‘Did you see t he accused afterwards?’ Juries
45
responded that he had se en the appellant in a police van, and that
he had been dressed in dark pant s, and had only one shoe on, a
training shoe. Ronecia Juries, w ho had seen the attempted break
in at their house, but had been u nable to say that it was the
appellant whom she had seen, te stified that the man had been
wearing dark pants and a red top. When the appellant asked her
about the shoes he had been wearing, she replied that she did not
know, but that she had seen prints in the backyard of a ‘tekkie’ and
a foot.
[45] Abdul Ederies, a constable in the police service, testified that
he had been on duty in the Belhar area on 2 September 1996. He
had received a complaint about a break-in in Chopin Street at
about 13h00 and had driven there to investigate. He had not seen
any suspect there. He had then received a radio report about a
problem in Omeria Street (the K ader house, where Melody had
46
been raped). On his way there he had seen in Banjo Walk, a road
close to Chopin Street, a man who fitted the description given of
the suspect who had raped Melody . He had driven the man,
whom he identified in court as t he appellant, to the Kader house in
Omeria Street. An Inspector St eenberg (who had sent the radio
report of the description of the suspect) wa s already at the Kader
house. servantAntuli had identifie d the appellant to Steenberg as
the man who had been at the house earlier, and Melody, according
to Ederies, had identified the appel lant as the man who had raped
her to him. Ederies had then arrested the appellant.
[46] The appellant cross-examined Ederies at some length,
essentially repeating a question as to the description of the
suspect’s clothing. Ederies rem embered nothing other than that
the man was wearing dark trouser s. (The appellant complained
about curtailment of his cross-examination of Ederies. The
47
magistrate had said, after many questions had bee n asked about
the description of the suspect who had raped Melody, which
Ederies was unable to answer, “Ek gaan nou met die getuie
klaarmaak, want u loop nou al in die rondte en rondte en rondte,
ons kom nie verder nie.’ The appe llant protested. The magistrate
then said ‘Is daar nou nog een laas te vraag wat u aan die getuie
wil vra . . .’. The appellant asked a few more questions.)
[47] Inspector Steenberg testifie d that he had gone to Omeria
Street to attend to the complaint of housebreaking and rape, and
that when the appellant had been brought to the house by Ederies,
Antuli had identified the appellant as the suspect to Steenberg.
[48] Mrs Kader testified about the theft of property from the house
in Omeria Street on 2 September 1996. She said that she had
been phoned by Melody, who was in a state of hysteria, and had
gone home at about 12h30. There wa s no evidence of the house
48
having been broken into, but she fo und that the door to the study
had been damaged again, and the lo ck broken. Her cell phone
was missing, as was foreign c urrency. Jewellery had been taken
from the bedroom. The total value of the items stolen came to
about R20 000. Nothing was recovered, but she had been paid
under an insurance policy. The appellant did not dispute her
evidence.
[49] The appellant testified that it was not he who had committed
any of the crimes charged. On the day when he was apprehended
(2 September 1996), he said, he had been visiting a friend, Roger
Fortuin in Banjo Walk in the Belhar area. He had gone to Fortuin’s
house at about 11h00, and they had smoked a couple of ‘dagga’
pipes together. He had left to go to Vrede’s Farm, variously
described as a squatter camp or a camp where Rastas live, when
he was stopped by policemen and apprehended. T hey had taken
49
him to Omeria Street where he had been arrested. He said he had
been wearing black track suit pants with ‘red, gold and green’ on
them, a black ‘bomber’ jacket, a red top with long sleeves over the
jacket and two blue Adidas ‘tekkies’ or ‘trainers’.
[50] Fortuin, called as a witness by the appellant, confirmed that
the appellant had visited him on the morning in question. But he
testified that it had been at 10h00, and not, as the appellant said,
at about 11h00. He said that t he appellant had been wearing dark
tracksuit pants with Rasta colours, and a black bomber jacket.
[51] The appellant argues that th e identification of him in respect
of the charges of rape is materially flawed. There was no
identification parade hel d and no forensic te sting done. The only
identification was when he was in the dock, some years after the
offences were committed. It is true that the trial commenced only
three years after the last of the offences charged was committed.
50
And undoubtedly the police and pr osecution could and should
have investigated the matter better. But in determining whether the
appellant was properly identified as the person who committed the
crimes charged on counts 1, 4 and 5, the question is not what was
not done, but whether the identification of the appellant by the
state witnesses constituted proof beyond reasonable doubt that it
was he who had committed the crimes charged.
[52] Both Beauty and Melody Mn yateli were adamant that the
appellant was the man who had r aped them. Both had had ample
opportunity to observe him, and r eason to remember his face, his
build and his hair. Melody had encountered him twice, first when
he entered the house in Omeria Street in May 1996, slapped her
face, locked her in the bathroom , let her out again, and demanded
money and tools; and secondly when he had come in to the house
on 2 September 1996, asked where the ‘other girl’ was (thus
51
showing that he had been there previously) and had raped her.
The evidence of both women was c onsistent in material respects
with regard to the incident on 13 May 1996. Their description of the
course of events was largely the same, as was their description of
the appellant, his conduct in demanding money and tools, his
chopping of a door while they were locked in the bathroom, and
what he had said.
[53] Melody’s account of what happened after the rape on 2
September was corroborated by Antuli, as to what the appellant
had been wearing, and in particular that he had only one shoe on.
Both women and Antuli had described the appellant’s dreadlocks
as being shorter at the times w hen the offences were committed
than it was when the trial took place.
[54] The identification of the appellant in the dock was
corroborated by the evidence of Juri es and Antuli as to the clothes
52
worn by the appellant on 2 Sept ember and the fact that he had
only one shoe. The appellant argues t hat it is improbable that he
could have walked to Chopin Stree t, some three kilometres away
from Omeria Street, in the time available, especially if he were
wearing only one shoe. Someone el se, with a Rasta hairstyle,
must thus have committed the rape. The argument is implausible.
The appellant would have had at le ast an hour to walk there. And
the possibility of another man with a Rasta hairstyle, wearing the
same clothing described by Melody, Antuli and Juries, being in the
Belhar area at the same time is remote.
[55] The identification of the appellant by Beauty and Melody
Mnyateli, as the man who had r aped them was unshaken. There
was no evidence to the contrary, ju st a bare denial. No alibi was
proffered in relation to the rape on 13 May: the appellant simply
denied that he had been there. And Melody’s evidence as to the
53
events on 2 September evidence was corroborated to some extent
by Antuli. Her description of the clothing worn by the appellant on
that day was corroborated by the evidence of Antuli, and Ronald
and Ronecia Juries.
[56] As far as the second count – housebreaking with intent to
steal – is concerned, the court a quo confirmed the conviction of
the appellant. The charge was that on 22 August 1996 the
appellant had broken into a business, Cash an d Carry, with intent
to steal. Counsel for th e state conceded before this court that the
evidence of the state witnesses was unsatisfactory and in several
respects inconsistent. At best what was proved was that the
appellant had been appreh ended by two police officers running
away from the premises in the early hours of the morning. The
evidence does not establish th at the person whom they saw
climbing over the boundary wall of the premises was the same
54
person whom they apprehended. In t he circumstances I consider
that the conviction and sentence on this charge must be set aside.
Trial prejudice
[57] I return to the question whet her the trial was vitiated by
irregularity. In my view, the evidence of identification in respect of
the counts of rape and theft was clear, unshaken and corroborated
by a number of witnesses. Even if the magistrate had descended
too far into the arena, or had unfai rly limited cross-examination
(which I indicated earlier was not the case), the appellant cannot,
in the light of the overwhelming evidence that it was he who
committed the rapes and the theft, show that any trial unfairness,
or prejudice resulted. The instances of unfair intervention
complained of by the appellant, referred to above, relate to the
evidence of Beauty Mnyateli, a nd the police witnesses. Nothing
turns on the evidence of the po lice witnesses, and the evidence
55
given by Beauty in response to the magistrate’s questioning was
nothing more than an elaboration of her evidence when led by the
state. That evidence was in any event confirmed in material
respects by her sister, Melody. I therefore do not accept the
argument of the appellant that his trial was vitiated by irregularities.
He did not show how or that he wa s prejudiced in the presentation
of his defence, or in that he was unrepresented.
[58] In the circumstances I consider that the trial court and the
court of first appeal correctly concluded that the appellant was
guilty on the charges of rape. In the result only the convictions on
the two charges of rape, and of theft, stand.
The appeal against the sentences imposed
[59] The appellant argues that the sentences imposed by the
magistrate are excessively severe an d that the cumulative effect is
shockingly inappropriate. Given that the sentences for
56
housebreaking will be set aside, the cumulative sentence, if it were
to stand, would be 26 years – 20 years’ imprisonment on the two
charges of rape, and six years in re spect of the theft. In my view
the sentences of 10 years’ imprisonment for each charge of rape
are entirely appropriate for very serious offences.
[60] However, the sentence in re spect of the theft appears to me
to be very severe. Both the trial court and the court below
considered that such a sentence was appropriate given previous
convictions of the appellant for t heft and housebreaking with intent
to commit crimes over an extend ed period. Indeed, the appellant
had been released from prison onl y six months before the first
offence was committed in 1996. I consider that the sentence
should, however, run concurrently with the sentence in respect of
the rape of Melody which occu rred on the same day, and in the
course of the same series of events.
57
[61] In my view, the only misdirection on the part of the
magistrate in relation to the sentences that remain is that he did
not take into account the period spent by the appellant in custody
awaiting trial. This court has been informed by counsel for the
appellant that the appellant spent a period of seven months in
custody between his arrest on 2 September 1996 and April 1997
when the charges against him were withdrawn. He was
subsequently rearrested in March 1999 and the trial commenced in
November 1999. He thus has spent an effective period of 15
months in custody awaiting trial. This period ought to have been
taken into account in determining the sentences for rape.
[62] Accordingly it is ordered that:
1 The appeal in respect of count 2 is upheld, and the
conviction and sentence in res pect of housebreaking with
intent to steal are set aside.
58
2 The appeals against the conv ictions for rape on counts 1
and 5, and for theft on count 4, are dismissed.
3 The sentences in respect of the convictions for rape and
theft are set aside and replaced with the following:
‘(a) On count 1 (the rape of B eauty Mnyateli) the accused is
sentenced to nine years’ imprisonment.
(b) On count 5 (the rape of Melody Mnyateli) the accused is
sentenced to nine years’ imprisonment.’
(c) On count 4 (the theft of p roperty from the house of Dr and Mrs
Kader), the accused is sentenced to six years’ imprisonment,
which sentence is to run concurrently with the sentence in respect
of count 5.’
_____________
C H Lewis
Judge of Appeal
Concur:
Mthiyane JA
Mlambo JA