S v Baloyi

• Jurisdiction: South Africa
• Judge: Patel J
• Judgment Date: 30 November 1999
• Docket Number: 219/00
• Court: Venda High Court
• Hearing Date: 30 November 1999
• Citation: 2000 JDR 0092 (V)

Patel AJ:

This matter came to me with a batch of backlog of cases for automatic review. On 15 October 1999, I authorised a warrant of liberation for Mr Muneri William Baloyi's immediate release from Thohoyandou Medium A Prison. Subsequently, on 8 November 1999 (with my Brother Hetisani agreeing) I set aside Mr Baloyi's conviction and sentence and indicated a review judgment would follow.

2000 JDR 0091 p2

Patel AJ

Mr Baloyi ("the accused") was 69 years old when he was convicted on 9 November 1998 of the crime of assault with intent to do grievous bodily harm and sentenced to three years' imprisonment by the Magistrate of Vuwani. He was convicted and imprisoned for striking his lover, Violet Removha ("the complainant") with his fist.

The first reviewing judge, Lakoto AJ questioned the correctness of the conviction and sentence. The Acting Director of Public Prosecutions, in a brief memorandum, was of the opinion that although the accused was not informed of legal aid by the magistrate but that did not import unfairness in the ensuing trial. He was of the view that the conviction was in order and the sentence was "a bit overstretched" and recommended that the sentence should be substituted with one of twelve months' imprisonment.

The touchstone in this review is, whether the accused's trial was in accordance with justice, [1] that is, whether the it was initiated and conducted in accordance with the notions of basic fairness and justice". [2] An accused person's right to a fair trial, as envisaged in section 35(3) of the Constitution, [3] presupposes that a criminal trial should be conducted in accordance with the formalities, rules and

2000 JDR 0091 p3

Patel AJ

principles of procedure. [4] The Constitution demands than an accused person should be given a fair trial. Fairness, like its twin sister justice, is an issue which is ultimately decided upon the facts of each case. [5]

A reviewing judge, in terms of section 304(1) and (2)(a) of the Criminal Procedure Act 51 of 1977, is required in an automatic review of cases to determine whether the proceedings in the lower court appears to be in accordance with justice. De Wet JA in R v Rose said:

'Now the term justice is not limited in meaning to the notion of retribution for the wrongdoer, it also connotes that the wrongdoer should be fairly tried in accordance with the principles of law.' [6]

The reviewing judge is simply neither confined nor limited to a mere consideration of substantial justice but also to have regard to procedural justice. [7] Broadly, automatic review is to ensure the validity and fairness of the conviction and sentence. [8] In the seminal work, The Undefended Accused, Dr N Steyther alluded:

2000 JDR 0091 p4

Patel AJ

'All the principles of a fair trial should, however, receive the same treatment. It is submitted that the principle of equal justice is a cornerstone of the administration of criminal justice, policy consideration demands its full consideration.' [9]

In the instant case, at the very inception of the trial the magistrate informed the accused, in terms of the provisions of section 73 of the Criminal Procedure Act, that he was at liberty either to engage an attorney of his own choice to assist him or to conduct his own defence. Before the accused pleaded to the charge, the following brief interchange occurred:

"COURT:	...Is that understandable Mr Baloyi, talk please.
ACCUSED:	Yes your worship.
COURT:	And your election is sir?
ACCUSED:	I have an attorney your worship.
COURT:	What are the names of your attorney please? Ja talk please. Is he going to conduct the proceedings on his own or he is going to secure the services of an attorney Mr Interpreter?
INTERPRETER:	He is going to conduct his own defence your worship.
COURT:	Did you understand the charge preferred against you sir?
ACCUSED:	Yes your worship
COURT:	What is your plea sir?

ACCUSED PLEADS NOT GUILTY."

2000 JDR 0091 p5

Patel AJ

The accused wanted to secure the services of his own attorney but it appears from the record that it was the interpreter who indicated that the accused wished to conduct his own defence. In the circumstances, it was imperative that the magistrate should have immediately sought clarity from the accused before calling upon him to plead to the charge. That would have minimised the risk of unfairness and injustice. If the accused insisted in securing the services of his attorney then the magistrate should have postponed the trial to afford him to be legally represented.

Section 73(2) of the Criminal Procedure Act declares that an accused is entitled to be represented by his or her legal advisor. This entitlement is now amplified and elevated to a right in sections 35(3)(f) and (g) of the Constitution, which accords every accused person a right to a fair trial, including the right:

'...

(f)

to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

(g)

to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; ...'

The right, opportunity and the means to procure legal representation are contemporised and constitutionalised and are rendered non-derogable even in

2000 JDR 0091 p6

Patel AJ

a national state of emergency. [10] The right to legal representation and the right to secure legal representation have indeed assumed paramountcy. These rights will be rendered meaningless if an accused is not accorded an opportunity to obtain the services of a legal advisor.

In Mgcina v Regional Magistrate, Lenasia and Another Steg man J said:

'Nevertheless, I think that this much may be said. Any magistrate, faced with the trial of an indigent accused who has no legal representation, will be conscious that if he should try the accused and sentence him to imprisonment (without the option of a fine or any other non-custodial sentence) there will be a considerable likelihood of an approach being made to the High Court on behalf of the accused for an order setting aside his trial and conviction on the ground that his fundamental rights under s 25(3)(e) (now s 35(3)(g) were infringed. For practical purposes, therefore, although we cannot now enunciate such a rule, we may well find that (apart form a few exceptional cases, such as those in which the accused person is himself legally qualified and experienced) no indigent accused persons will be sent to prison unless they have been provided with a defence at State expense.' [11]

And in S v McKenna it was stated:

'In my judgment, if the right to legal representation is to have any meaning, it must include the right to be afforded a reasonable opportunity to secure it. A denial of a reasonable opportunity to secure legal representation where one is demanded is in my view, a denial of the right to a legal representation and it is a denial of a right to a fair trial

2000 JDR 0091 p7

Patel AJ

guaranteed by the Constitution. Where this occurs, the ensuing conviction and sentence cannot stand.' [12]

Mahomed DP, as he then was, in Shabalala and Others v Attorney-General of Transvaal and Another, said:

'The fact that the Constitution contains, in material respects, a new and fundamental commitment to human rights and is not merely a contemporisation and incremental articulation of previously accepted and entrenched values share in our society, is illustrated by the approach of the Appellate Division in the cases of S v Rudman and Another; S v Mthwana. Nicholas AJA, giving the judgment of the Court, rejected the suggestion that recourse could be had to the principle of a "fair trial" to justify the finding that an indigent accused person who did not have the means to pay for his or her own defence was entitled to be provided with legal representation, if necessary, at the expense of the State. He stated that none of the authorities relied on in the case of S v Davids

'when viewed in their contextual setting, afford any support for the learned Judge's basic premise that the touchstone in a procedural appeal is...