S v Balatseng

• Jurisdiction: South Africa
• Judge: Mogoeng JP, Nkabinde J and Hendricks J
• Judgment Date: 22 September 2004
• Citation: 2005 (2) SACR 28 (B)
• Docket Number: 157/2003
• Hearing Date: 25 June 2004
• Counsel: P I Shapiro SC for the appellant. A Mogoeng for the State.
• Court: Bophuthatswana High Court

Mogoeng JP:

[1] The appellant in this matter was convicted by my Brother H Hendler of (1) murder, (2) attempted murder, (3) theft of a firearm, and (4) possession of a firearm without a licence to possess it. He was sentenced to undergo the following terms of imprisonment: life, ten years, three years and another three years in respect of counts 1, 2, 3 and 4 respectively. I

[2] An application for leave to appeal to the Full Bench of this Division was launched. Leave was granted and that is how we became seized of the matter.

[3] The appeal came before us on 25 June 2004. Having heard both counsel for the appellant and for the respondent, we set aside J

Mogoeng JP

the convictions and sentences and reserved reasons for judgment. These A then are the reasons.

[4] This appeal revolves around whether:

4.1

The appellant's right to legal representation was explained to him and whether he was allowed to exercise that right;

4.2

legal aid counsel should have been allowed to represent the B appellant on 19 March 2001;

4.3

the appellant's procedural rights were properly explained to him;

4.4

the Court assisted or guided the appellant, who was an undefended accused, in the presentation of his case; and

4.5

this Court should order a trial de novo. C

The factual background to the above issues is set out below.

[5] On 28 February 2001 the appellant appeared before his Lordship Mr Justice Hendler for the first time. He was then represented by Mr Van Heerden, who was briefed by Mr Potgieter (an attorney) on legal aid instructions. After consulting with the D appellant, Mr Van Heerden informed the Court that the appellant was in a very emotional state, as a result of which he could not get clear instructions from him. He told the Court that the accused was upset and could not think straight. According to Mr Van Heerden, it was not clear to him whether the appellant remembered E what happened on the day to which the charges relate or whether he did not remember. He asked for more time to consult with the appellant. The Court reluctantly granted him the indulgence to consult further with the appellant until 14h00 of the same day.

[6] When the hearing resumed at 14h00 the appellant, with the F approval of Mr Potgieter, had terminated the mandate of Mr Van Heerden. The appellant wanted counsel of his choice, a Mr Nel from Kimberley, to represent him. This necessitated a postponement. What transpired between the Court and the appellant, prior to the postponement being granted, is set out below:

'Hendler J: Look Ms Mogoeng, it's bit of an awkward situation but I'm going to get an undertaking from him. Now look, I'm prepared to postpone your case on one condition that if your advocate of your choice is not here on that day, you will then accept legal aid counsel and the case will proceed. There will be no further postponements. You understand me?

Accused: Yes?

Hendler J: Are you agreeing to that?

Accused: Yes I do agree.

Hendler J: You agree. So in other words we're going to postpone the case now and you are then going to try and instruct some other advocate and pay the other advocate. Is that right? But if on the day that we postpone it to the other advocate that you've got is not here, you will then proceed with the trial with legal aid counsel. I want that on record. What does he say?

Interpreter: He says he agrees with it.

Hendler J: He agrees with that.

Interpreter: Yes.'

(My emphasis.) J

Mogoeng JP

The condition for the postponement of the matter was reiterated in the A following terms:

'Hendler J: So try and get a date and what I suggest you do Ms Mogoeng is either you or the Attorney-General phone Mr Pretorius in Kimberley and tell him that's the date and if there's no counsel here on that date that the accused has agreed to proceed with legal aid counsel. There are no other postponements, there's no nothing. That is the date.'

(My emphasis.)

[7] It is noteworthy that in its endeavour to make it possible for the appellant to exercise his right to be represented by counsel of his choice, the Court did not enquire of the appellant whether he had the financial resources readily available to pay counsel of his choice, C or whether some asset would first have to be realised or whether some notice would have to be given to the bank in respect of some investment by the appellant or his relative(s) who might have been willing to sponsor him or do whatever needed to be done before funds could be available. The prosecuting counsel was simply asked to obtain a date from her superior without enquiring from the appellant whether a D particular date would suit him.

[8] Be that as it may, the matter was eventually postponed to 19 March 2001. The appellant was, therefore, given 18 days (including weekends) within which to make the necessary arrangements. Such a period may be reasonable or unreasonable depending on the E circumstances of the particular accused. Regrettably, the circumstances relevant to this case were not explored, with the result that we really do not know whether the period was reasonable or not. A serious attempt must always be made, especially in the case of an undefended accused, to obtain information which would guide the Court in determining F whether or not a postponement is reasonable for the intended purpose. I say this because the appellant was represented by counsel of his choice before us. The lack of information has deprived us of the opportunity to know why the same could not happen during the trial. The information may well have suggested that no need existed for a postponement since G the accused, for example, did not have money for counsel of his choice. (S v Halgryn 2002 (2) SACR 211 (SCA) in para [11] at 215j - 216c.) All of the above emphasise the importance of criminal trials being conducted in accordance with the notion of basic fairness and justice (S v Zuma 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401) in para [16]). H

[9] When the matter resumed on 19 March 2001, the appellant appeared in Court without counsel of his choice. The Court enquired of the appellant whether he had counsel of his choice on that day. His reply was that he did not know, since arrangements for counsel were supposed to be made by his uncle, who was a witness in his case and was sitting outside the courtroom. The Court then informed him that on the I previous seating he did not want legal aid counsel but wanted his own counsel. The appellant said that his parents had changed their stance and had advised him to rather make use of services of legal aid counsel.

[10] In response to this, the Court told the appellant that when he refused to be assisted by legal aid counsel on 28 February 2001, he made J

Mogoeng JP

an undertaking that if he did not have counsel of his A choice on the resumption of the trial, then 'you were going to defend yourself'. The appellant admitted that he undertook to defend himself. The discussion then proceeded as set out below:

'Hendler J: So you agree to defend yourself now?

Accused: Yes I'm just going to plead, I (sic) just going to plead to this Court the truth and plead guilty...