Mgcina v Regional Magistrate, Lenasia and Another

• Jurisdiction: South Africa
• Judge: Borcher J
• Judgment Date: 11 April 1997
• Citation: 1997 (2) SACR 711 (W)
• Hearing Date: 11 April 1997
• Counsel: Wim Trengove SC (with him Patric Mtshaulana) for the appellant
• Court: Witwatersrand Local Division

Borchers J:

The appellant in this matter appeared before the regional magistrate for the regional division of the I Southern Transvaal sitting at Lenasia where he was charged with and convicted of the crime of robbery. He was thereafter, on 9 January 1996, sentenced to 10 years' imprisonment. The appellant was unrepresented during these proceedings. Later in 1996 the appellant himself made application for a Judge's certificate J

Borchers J

A granting him leave to appeal and was on 29 May 1996 given leave to appeal against the conviction, the grounds being that the appellant had not been informed of his rights to legal representation and may thus have been prejudiced in his defence. The Judge who granted the certificate recorded that he had asked the Legal Resources Centre to represent the appellant at the hearing of the appeal.

B On or about 14 November 1996 - there is no stamp on the relevant documents - the Legal Resources Centre filed a notice of appeal against the conviction and sentence, a power of attorney authorising this procedure, and an application for condonation of the later delivery of the said notice of appeal. This application was successful and C condonation was granted at the start of the hearing.

At about the same time, on 15 November 1996, the Legal Resources Centre also served on the Registrar of this Court a notice of review in terms of Rule 53 of the Uniform Rules of Court. The notice was according to the D document in my possession also to be served upon the first respondent, namely the trial magistrate, by registered post addressed to the regional court, Lenasia. We were informed by Mr Trengove, who appeared for the appellant, that the first respondent had elected not to oppose the relief sought. The review proceedings cited the Attorney - General of the Witwatersrand as the second respondent. The second respondent, on 27 November 1996, gave E notice of his intention to oppose the review. On 3 December 1996 he gave further notice that he did not intend filing affidavits in the matter, although an affidavit was filed by him shortly before the hearing. It was deposed to by Mr Kruger of the Legal Aid Board, Johannesburg, and I shall revert to its contents at a later stage.

F In the notice of review an order is sought that the conviction and sentence be set aside on essentially two grounds:

The first is that the trial magistrate failed to notify the appellant of his right to legal representation of his choice, or of the fact that such legal representation would be provided by the State should substantial injustice result from the absence thereof.

G The second ground is that the first respondent erred in failing to consider whether or not a reasonable possibility of substantial injustice existed in proceeding with the matter where the appellant was unrepresented, regard being had to the nature and gravity of the charge against him.

H Thirdly, it is averred that the first respondent erred in proceeding with the trial against the appellant in the absence of legal representation, thereby causing substantial injustice to the appellant.

The fourth ground is in my view merely a restatement of the second.

In his original letter requesting a Judge's certificate, the accused stated that he made 'a written submission for a I public defender' but that this had been refused on the ground that his case was 'heavy and serious', and that he had been told that he should pay for his own defence. When the application for a Judge's certificate was made, the first respondent replied to this allegation by stating that no application, written or otherwise, had been made to him for a J legal representative prior to the commencement of the trial. This statement appears to be factually correct.

Borchers J

In his affidavit in support of his notice of review the appellant stated that when he first appeared in Court he was not A informed of his rights to legal representation. He averred that while in court he spoke to lady who appeared to be a 'Legal Aid lawyer'. She advised him to apply for legal aid, which he duly did upon an application form supplied to him by a prison official. He added that he returned this form to the prison officials and that he was assured that at his B next court appearance, on 31 August 1995, he would find that his application had been approved. He was also told that he would at court meet the lawyer who would represent him. He does not state who gave him these assurances.

He continued in the affidavit to state that he had made two further applications for legal aid on application forms C furnished to him by the prison authorities, which he had given back to the prison officials concerned, but that he had received no response thereto. At no time was he contacted by any lawyer nor was he ever informed by any presiding officer of his rights in terms of s 25(1)(c) of the Constitution Act of 1993.

The appellant further alleged that D he was at one stage asked by the magistrate if he was represented and that he had replied that he was not. The trial then proceeded. He alleged that he did the best he could in cross-examining the witnesses and presenting his own case, but added that he is of the view that the expertise available to a legal representative would have secured his acquittal.

The record of the proceedings supplied to this Court gives no indication that the question of legal representation was E raised at all on the day the trial commenced. We have been supplied by Mr Mosing, who appeared for the second respondent, with photocopies of the notes made by the various magistrates who presided when the matter was remanded on a number of occasions from the appellant's first appearance on 18 August 1995 until the trial F commenced on 12 October 1995, and there is no indication from this document that the appellant's rights were ever explained to him.

The appellant's allegations as set out in the affidavit, to which I have referred, are not disputed by the second G respondent and must be accepted as the truth. It is clear from the record of the proceedings that his rights were not explained to him. Also, from the affidavit of Mr Kruger of the Legal Aid Board which was filed by the second respondent shortly before the hearing, it appears that the appellant was indeed eager to obtain the services of a legal representative. Mr Kruger states that he had traced an application for assistance dated as late as November 1995. H The trial had already commenced at that stage. This application should have been forwarded to the Soweto branch of the Legal Aid Board, but there was no record that this had been done, and Mr Kruger concluded by stating that he had not been able to establish the outcome of the application. He could trace no earlier applications I but could not dispute that such had been made. I must find either that the said application did not reach the Legal Aid Board, like the application dated 30 November 1995, or that they did but were not attended to.

What occurred is a clear breach of the provisions of s 25(3)(e) of Act 200 of 1993, which reads as follows: J

Borchers J

A 'Every accused person shall have the right to a fair trial, which shall include the right -. . .

(e)

to be represented by a legal practitioner of his or her choice, or, where substantial injustice would otherwise result, to be provided with legal representation at State expense, and to be informed of these rights.'

B Prior to the enactment of this Act it was accepted that an unrepresented accused should be informed of his rights to legal representation. (Cf S v Radebe, S v Mbonani 1988 (1) SA 191 (T), S v Mpata 1990 (2) SACR 175 (NC), S v Mabaso and Another 1990 (3) SA 185 (A) at 203D - G).

Section 25(3)(e) of Act 200 of 1993 confirms the established law in regard to the necessity of informing an accused C person of such right. The section, however, also extends an accused person's rights to legal representation at the expense of the State where substantial injustice would otherwise result, and provides further that he be informed thereof.

D It was held in the Mabaso matter supra at 204G - H that a failure to inform an accused person of his rights would amount to an irregularity only if the accused were shown to have been ignorant of such rights.

In the present matter it is clear that the appellant gleaned some information from the lady to whom he spoke at the court on his first appearance. He learnt sufficient to establish that it was possible to obtain legal representation E through 'the Legal Aid' and was assisted by a prison official who supplied him with the necessary forms. But his attempts to obtain legal representation did not reach the relevant authorities, alternatively...