S v Baloyi

• Jurisdiction: South Africa
• Judge: Margo J and Le Grange J
• Judgment Date: 23 September 1977
• Court: Transvaal Provincial Division
• Hearing Date: 23 September 1977
• Citation: 1978 (3) SA 290 (T)

Margo J:

The appellant was charged with contravening s 138 (1) of the Road Traffic Ord 21 of 1966 in that he drove a motor vehicle recklessly on a H public road. He pleaded not guilty but was convicted and fined R300 with the alternative of six months' imprisonment. His driver's licence was suspended for 18 months. The present appeal is against the conviction and sentence.

The undisputed facts were that at about midnight on 11 April 1977 the appellant drove a motor bus at a speed of 80 to 90 kilometres per hour on the road between Louis Trichardt and Pietersburg. There were 25 to 30 passengers in the bus. The road was busy with traffic after a long weekend. The appellant at times drove the bus over the centre of the road,

Margo J

in the face of oncoming vehicles. His explanation was that the lights of the bus had failed and that he had gone over the centre of the road because he could not see and was busy fiddling with the switch.

A On the merits of the appeal the substantial point which has been raised by Mr Price for the appellant is that there was a fundamental irregularity in the trial. The alleged offence was committed at about midnight on 11 April and the appellant was thereafter taken into custody and charged. Barely 11 hours later he appeared in court and was required to plead and stand trial. He was convicted and sentenced the same day. He was not legally B represented. He was not asked if he wanted a postponement to consider his position or to obtain legal assistance. He was not told of the advantage of legal assistance. The argument for the appellant is, firstly, that he was not afforded an opportunity to obtain legal representation, and, secondly, that the trial was conducted with such unseemly haste that he C was not given sufficient time to consider the charge or to prepare his defence.

With regard to the first proposition, it is fundamental to a fair trial that an accused who desires to be legally represented should not be denied that very important advantage. In S v Seheri en Alidere1964 (1) SA 29 (A) D a Circuit Court hearing a criminal charge had refused an application for a postponement to enable the appellants to be legally represented and had thereafter convicted them. Through their attorney's negligence, but without fault on their part, no counsel had appeared at the trial. In refusing a postponement the trial Court had referred to the inconvenience which would have been caused, and to the several notifications to the E attorney of the date of the trial, despite which no steps had been taken to brief counsel. On appeal it was held that the accused should not have been deprived of their right to legal assistance at the trial and that the refusal of a postponement had amounted to an irregularity within the meaning of s 364 (1) of the Criminal Procedure Act 56 of 1955. BOTHA JA F (at 36) posed the question whether the accused had been so prejudiced by the irregularity that justice had in fact not been done. That question was answered affirmatively and the convictions were set aside. See also S v Shabangu1976 (3) SA 555 (A)per JANSEN JA at 558F.

In S v Wessels and Another1966 (4) SA 89 (C) a magistrate had refused to G allow legal representation for two witnesses at an enquiry under s 212 (1) of Act 56 of 1955 into their refusal to testify. However, before punishing them he heard their legal representatives on sentence. In the course of the judgment on appeal, VAN ZIJL J, with whom BANKS J concurred, examined in detail, at 91 et seq, the Roman-Dutch authorities on the right of any person summoned to law in a civil matter and of an accused in a criminal matter to legal representation. VAN ZIJL J loc cit noted that Vroman H Tractaat de Foro Competenti 2.4.3 quotes Baldus as saying that even the Devil has the right to be heard. At 97G VAN ZIJL J said this:

"The failure to allow audience through a legal practitioner to a person who objects to giving evidence in a criminal trial is a gross irregularity. It is so gross a departure from established rules of procedure that it can be said that the accused have not been properly tried. It seems to me that any reasonable person hearing of what took place would say that the accused have not had justice. They have not been allowed to put their respective cases to the court as they wanted them presented. In these circumstances nothing is achieved by speculating whether the acumen and persuasiveness of the legal

Margo J

practitioner could rightly or wrongly have persuaded the court a quo to come to a decision favourable to the accused. The fact remains that the accused have been deprived of this opportunity. It is not for this Court to speculate on what would have happened had the accused not been so deprived. There is also a further very important consideration. The manner A of a man's conviction is a fundamental part of the justice he receives. The way his case is presented may have a very strong bearing upon the public's moral assessment of his offence, ie of his refusal to give evidence. What he has lost at the hearing of his objection cannot necessarily be retrieved by his advocate or attorney when the latter is allowed to address the court on sentence only. The irregularity pertains to a question of procedure and is of so gross a nature that the only conclusion that can be come to is that the accused have not been properly tried."

B In S v Blooms1966 (4) SA 417 (C) the accused, who was in...