Mgcina v Regional Magistrate, Lenasia and Another

• Jurisdiction: South Africa
• Judgment Date: 11 April 1997
• Citation: 1997 (2) SACR 711 (W)

Mgcina v Regional Magistrate, Lenasia and Another
1997 (2) SACR 711 (W)

1997 (2) SACR p711

Citation	1997 (2) SACR 711 (W)
Court	Witwatersrand Local Division
Judge	Borcher J
Heard	April 11, 1997
Judgment	April 11, 1997
Counsel	Wim Trengove SC (with him Patric Mtshaulana) for the appellant

Flynote: Sleutelwoorde

Fundamental rights — Right to legal representation — Content of such right — Words in s 25(3)(e) of Constitution Act 200 of B 1993 'where substantial justice would otherwise result' not having, as minimum content, the practical meaning that if any indigent person were to be tried without legal representation, he could not be sent to prison without substantial injustice resulting. C

Trial — The accused — Legal representation of — Effect of lack of representation where accused sentenced to term of imprisonment — Words in s 25(3)(e) of Constitution Act 200 of 1993 'where substantial justice would otherwise result' not D having, as minimum content, the practical meaning that if any indigent person were to be tried without legal representation, he could not be sent to prison without substantial injustice resulting.

Headnote: Kopnota

The appellant had been convicted in a regional court of robbery and sentenced to 10 years' imprisonment. The appellant had been unrepresented during the proceedings in the regional court despite his attempt to secure legal E representation. It was contended on appeal that the failure to inform the appellant of his rights to legal representation had constituted an irregularity and that the appellant had been prejudiced in the conduct of his defence.

The Court held (per Borchers J) that the trial magistrate had erred in not applying his mind to the question whether or not the appellant knew of his rights to legal representation and in failing to consider whether or not substantial F injustice would result if the trial against the appellant were to proceed in the absence of legal representation. The Court held that in the light of these factors the conviction and sentence had to be set aside.

Semble: Counsel for the appellant submitted that s 25(3)(e) of the Constitution Act 200 of 1993 had been enacted, the framers of the Constitution knowing full well of the developments in the United States, and that the same G practical exigencies as had compelled the United States' courts to enunciate a clear rule that was easy to apply, would operate in South Africa and would compel a similar development. Counsel accordingly urged the Court to hold that the words in s 25(3)(e) 'where substantial injustice would otherwise result' had, as their minimum content, the practical meaning that if any indigent accused person were to be tried without legal representation, he could not H be sent to prison without substantial injustice resulting.

The Court held that if the framers of the Constitution had intended some such simple and straightforward rule, they could, and presumably would, have enshrined it in the Constitution. The Court accordingly held that it could not give such a meaning to the words.

Case Information

Appeal from a conviction and sentence in a regional court. I

Wim Trengove SC (with him Patric Mtshaulana) for the appellant:

This is both an appeal against and review of the appellant's conviction and sentence on a charge of robbery. The Attorney - General opposes both J

1997 (2) SACR p712

A the appeal and the review but does not challenge the facts upon which the review is based. The regional magistrate who presided in the appellant's trial is a nominal respondent in the review. It is not clear whether the application for review was served on him. The State Attorney however confirmed on his behalf, in a letter to the appellant's B attorneys dated 3 April 1997, that he, the magistrate, did not wish to oppose the application for review.

The appellant's appeal was noted out of time. He launched an application for condonation. It is apparently not opposed. The appellant will ask at the outset that his late notice of appeal be condoned.

C Our submissions on the merits of the appeal and review may be summarised as follows:

1.

An accused in a criminal prosecution is entitled at common law, under the Criminal Procedure Act and under the Constitution,

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to be represented by his own legal advisor ('the right to own counsel');

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D to be represented by a legal advisor at State expense where substantial injustice would otherwise result ('the right to State counsel'); and

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to be informed of those rights ('the right to information').

2.

The appellant's right to State counsel and his right to information were violated in his trial.

3.

E Both those violations are fatal to the appellant's conviction.

We will not contend that the appellant's right to own counsel has been violated. We will however at the outset deal with that right because it was historically the one from which the other two flowed. We will then deal with the right to F State counsel and the right to information which were violated in this case. We will lastly deal with our submission that both those violations are fatal to the appellants conviction.

The right to own counsel

Our common law recognises 'as fundamental the right of the individual to legal advice and to legal representation'. S G v Mabaso and Another 1990 (3) SA 185 (A) at 201F. See also Brink and Others v Commissioner of Police 1960 (3) SA 65 (T) at 67C - E; R v Slabbert and Another 1956 (4) SA 18 (T) at 21G; S v Wessels and Another 1966 (4) SA 89 (C) at 91D-92H; Mandela v Minister of Prisons 1983 (1) SA 938 (A) at 957D; Selikowitz 'Defence by Counsel in Criminal Proceedings under South African Law' (1965-1966) Acta Juridica 53. It is legal H representation that provides effective access to justice and access to a legal advisor is regarded by our law as a corollary of the right of access to the courts themselves.

See Mandela v Minister of Prisons (supra at 957D). The right is accordingly 'a basic and fundamental one'. (S v Mabaso (supra) at 202A.)

I The right has enjoyed statutory recognition for almost two centuries. It was first recognised in s 65 of a proclamation issued by Lord Charles Somerset on 2 September 1819. (S v Mabaso at 201G - H.) It has similarly enjoyed recognition under the Criminal Procedure Acts of 1917 (ss 97 and 218 of the Criminal Procedure and Evidence Act 31 of 1917), 1955 (ss 84 and 158 of the Criminal Procedure Act 56 of 1955) and 1977 (s 73 of the J Criminal Procedure Act 51 of 1977). Under s 73 of the current

1997 (2) SACR p713

Criminal Procedure Act, an accused is entitled to the assistance of his legal advisor from the time of his arrest and at A all criminal proceedings thereafter.

The right is now constitutionally entrenched in both the interim Constitution of 1993 (ss 25(1)(c) and 25(3)(e)) and the final Constitution of 1996 (ss 35(2)(b) and (c) and 35(3)(f) and (g)). The importance of the right is underlined by B the fact that it is protected and rendered non-derogable even in a state of national emergency (ss 34(6)(d) and (e) of the interim Constitution and ss 37(5)(c) and 37(6)(d) and (g) of the final Constitution).

Because the right is such an important one, an improper refusal to allow an accused an opportunity to exercise it, C constitutes 'such a gross departure from established rules of procedure that the accused in such circumstances has not been properly tried' and results per se in a failure of justice. See S v Seheri en Andere 1964 (1) SA 29 (A) at 35H-36E; S v Shabangu 1976 (3) SA 555 (A) at 558F - H.

The right to State counsel D

The polemic triggered by the Khanyile (S v Khanyile and Another 1988 (3) SA 795 (N)) line of cases was finally settled by the Appellate Division in S v Rudman and Another; S v Mthwana 1992 (1) SA 343 (A). It held that an accused was not entitled at common law to be provided with legal representation at State expense. Such a right has E however now been recognised by s 25(3)(e) of the interim Constitution and s 35(3)(g) of the final Constitution. They entitle an accused, as a component of the general right to a fair trial, to legal representation at State expense if 'substantial injustice would otherwise result'. It would be useful for a better understanding of the latter phrase, to refer back to the Khanyile line of cases. F

Didcott J dealt with the criteria for the identification of the accused entitled to State counsel, in Khanyile at 814G-816C. He held that the cases in which the call for representation was most demanding and its lack most debilitating, could be identified by having regard to three facets. The first was in the inherent simplicity or complexity G of the case in law and in fact. The second was the accused's general ability to fend for himself. The third was the gravity of the case which depended on the nature of the charge against the accused and the possible consequences to him of a conviction for it. The test which Didcott J proposed was whether the cumulative effect of those factors would place the accused at such a disadvantage that his trial would be 'palpably and grossly unfair' were it to go H ahead without a lawyer for the defence. Didcott J later said in S v Davids; S v Dladla 1989 (4) SA 172 (N) at 185B - E that the same test could be better expressed by asking whether the trial would be 'intolerably unfair'. He said that he preferred the latter formulation because '(i)t captures somewhat better than the other the essence of the I test, the value judgment for which that calls in the first place, the standard for such on which it fastens in the second, a standard never rigid, one always flexible. For what we tolerate today, or have to, we may not tomorrow'. J

1997 (2) SACR p714

A The Khanyile test was fashioned on that of the US Supreme Court...