Hlantlalala and Others v Dyantyi NO and Another

• Jurisdiction: South Africa
• Judge: Mpati AJA
• Judgment Date: 28 September 1999
• Citation: 1999 (2) SACR 541 (SCA)
• Hearing Date: 26 August 1999
• Counsel: G Marcus SC for the appellants M Genu for the respondents
• Court: Supreme Court of Appeal

Mpati AJA:

[1] The question for determination in this appeal is whether an irregularity occurred in the appellants' criminal trial by reason of an alleged failure by the magistrate to inform and explain to them their legal rights and, if so, what effect such irregularity had on the outcome of the trial. F

[2] The three appellants were convicted in the magistrate's court at Cofimvaba, in the erstwhile Transkei, of theft (a contravention of s 132 of the Transkei Penal Code, Act 9 of 1983) and each sentenced to undergo a period of imprisonment of four months. Subsequent to their trial they instituted review proceedings in the Court a quo, inter alia, for an order setting aside the criminal G proceedings on grounds of certain alleged irregularities. The Court a quo declined to grant the order sought for the setting aside of the criminal proceedings, but granted leave to the appellants to appeal to this Court against such refusal. H

[3] The alleged grounds of irregularity relied upon and as can be extracted from the appellants' founding affidavit are the failure by the magistrate to inform the appellants of or to explain to them:

(1)

their right to legal representation, including their entitlement to apply to the Legal Aid Board, or other institutions, for legal assistance prior to the commencement of the proceedings; I

(2)

their right to access to the contents of the police docket;

(3)

their right to request further particulars to the charge;

(4)

the nature and effect of pleading to the charge and the right to remain silent;

(5)

the meaning of the offence with which they were charged; J

Mpati AJA

(6)

A the purpose of cross-examination of witnesses during the trial and the consequences of their failure to do so;

(7)

their right to call witnesses;

(8)

their right to address the court after close of the defence case.

B [4] It was contended on behalf of the appellants that these omissions by the magistrate constituted gross irregularities in the proceedings at common law; alternatively that this Court, in developing the common law in terms of the Constitution, should hold that the alleged failures constitute gross irregularities. In the further alternative it was contended that the alleged irregularities C constituted a direct violation of the appellants' constitutionally guaranteed right to a fair trial. In each case the irregularities were such as to vitiate the proceedings, so it was contended.

[5] Although a number of alleged grounds of irregularity have been raised, I propose to deal first with what I consider to be the main complaint, as per counsel's submissions, viz the magistrate's alleged D failure to inform the appellants of their right to legal representation and, if necessary, to deal with the other grounds thereafter. The appellants alleged in their founding affidavit that the magistrate failed to inform them of their right to apply for legal aid, or to be supplied with legal representation at E State expense where substantial injustice would otherwise result. The magistrate's response to these allegations was that the appellants' trial was fair 'as all (their) rights were explained to them'. She also stated that the appellants 'did not need a legal representative as they said they have got no money' and that they 'never indicated that they needed a State attorney other than that they have got F no money to pay for a lawyer'. The latter part was in response to the appellants' allegation that in view of the seriousness of the charge preferred against them they should have been informed of their fundamental rights and should have been afforded legal representation at State expense. It seems clear to me from the magistrate's response that the appellants were indeed not informed of G their basic rights.

[6] In my view, this matter can be disposed of on common-law...