S v Chabedi

• Jurisdiction: South Africa

S v Chabedi
2004 (1) SACR 477 (W)

2004 (1) SACR p477

Citation	2004 (1) SACR 477 (W)
Case No	A957/2003
Court	Witwatersrand Local Division
Judge	Van Oosten J, Maleka AJ and Selvan AJ
Heard	February 5, 2004
Judgment	March 26, 2004
Counsel	H Knopp for the appellant.; N Naidoo for the State.

Flynote : Sleutelwoorde

Trial — The accused — Legal representation of — Content of right — Under present constitutional setting, accused's right to fair trial embracing, inter alia, right to legal representation and as corollary thereto, to be informed thereof — Inextricably linked hereto is right of accused person to be properly defended — Whether infringement of that right has occurred will depend on the facts and circumstances of each particular C case — That doesn't mean that common-law principles relating to conduct of proceedings by counsel or attorney don't apply — Insofar as they are not in conflict with Constitution of the Republic of South Africa Act 108 of 1996 they remain good law.

Trial — The accused — Legal representation of — Content of right — Attorney failing to recall State witnesses when D essential to do so and further omitting to conduct defence adequately — His competency to conduct accused's defence brought into question — Accused raising complaints regarding conduct of defence in open court during course of proceedings at stage when still possible to remedy situation — Proceedings in trial court fundamentally E irregular, resulting in gross miscarriage of justice — Conviction set aside and, as magistrate already made credibility findings, trial had to commence de novo before another magistrate — In view of findings regarding competency of attorney who conducted defence at trial, interests of justice requiring that another legal representative be appointed to F represent accused at further trial.

Court — Court of appeal — Duties of — In present constitutional era it is one of functions of Court of appeal hearing criminal appeal to enquire into fairness of trial and to ensure that accused's right to fair trial fulfilled, particularly where irregularity appears ex facie record of proceedings. G

2004 (1) SACR p478

Headnote : Kopnota

During a criminal trial in a magistrate's court an attorney representing the accused had allegedly failed to consult properly with A his client and had failed to recall certain State witnesses, when it became apparent that they could answer questions relating to material issues. In an appeal, the Court mero motu raised the question whether the appellant had received a fair trial.

Held (per Van Oosten J and Maleka AJ), that it had been without doubt the duty of the attorney, in the proper performance of his mandate to defend the appellant, to have recalled B the witnesses in order to do justice to his client's defence. That he had failed to do which, compounded by other omissions, brought into question his competency to conduct the appellant's defence. Accepting, that the appellant had not been defended properly, the question was whether it had amounted to a fatal irregularity which vitiated the proceedings. (Paragraph [18] at 483j - 484b.) C

Held, further, that in the present constitutional era it was one of the functions of a Court of appeal hearing a criminal appeal to enquire into the fairness of a trial and to ensure that the accused's right to a fair trial was fulfilled, particularly where, as in the present matter, an irregularity appeared ex facie the record of the proceedings. (Paragraph [20] at 485d - e.) D

Held, further, that it is well established under the present constitutional setting that an accused's right to a fair trial embraced, inter alia, the right to legal representation and, as a corollary thereto, to be informed thereof. Inextricably linked hereto was the right of an accused person to be properly defended. Whether an infringement of that right had occurred would depend on the facts and circumstances of each particular case. That did not mean that E the common-law principles relating to the conduct of proceedings by counsel or an attorney did not apply. Insofar as they were not in conflict with the Constitution of the Republic of South Africa Act 108 of 1996 they remained good law. (Paragraph [21] at 485i - 486b.)

Held, further, that the appellant had raised his complaints regarding the conduct of his defence in open court during the course of the proceedings at a stage when it had still been possible to remedy F the situation. The new evidence that had been elicited became crucial to the appellant's guilt or innocence. The attorney clearly failed to appreciate the import of the evidence and the effect it might have had on the complainant's version and other evidence. There was no reason why the magistrate, who, as was quite apparent from his judgment, had been acutely aware of the issues that arose on the new evidence, should G not have recalled the witnesses. It followed that the proceedings in the trial court had been fundamentally irregular, resulting in a gross miscarriage of justice. (Paragraph [22] at 486d - g.)

Held, accordingly, that the conviction had to be set aside and, as the magistrate had already made credibility findings, the trial had to commence de novo before another magistrate. In view of the findings made regarding the competency of the attorney who conducted his defence at the trial, the interests of justice required H that another legal representative be appointed to represent the appellant at the further trial. (Paragraph [23] at 486i - j.)

Annotations:

Cases cited

Reported Cases

R v Hepworth 1928 AD 265: dictum at 277 applied I

R v Matonsi 1958 (2) SA 450 (A): compared

R v Muruven 1953 (2) SA 779 (N): applied

S v Bennett 1994 (1) SACR 392 (C): compared

S v Davids; S v Dladla 1989 (4) SA 172 (N): referred to

S v Majola 1982 (1) SA 125 (A): compared

S v Mbambo 1999 (2) SACR 421 (W): referred to J

2004 (1) SACR p479

S v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A): dictum at 871G applied A

S v Thebus and Another 2003 (2) SACR 319 (CC) (2003 (6) SA 505): referred to

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): dictum in para [16] applied. B

Legislation cited

Statutes

The Constitution of the Republic of South Africa Act 108 of 1996: see Juta's Statutes of South Africa 2002 vol 5 at 1-144.

Case Information

Appeal from a conviction in a regional court, which was followed by sentencing in the High Court in terms of the Criminal Law Amendment Act 105 of 1997. The judgment for the majority of the Court was handed down by Van Oosten J (Maleka AJ concurring), with Selvan AJ C handing down a dissenting judgment. The facts appear from the judgment of Van Oosten J.

H Knopp for the appellant.

N Naidoo for the State. D

Cur adv vult.

Postea (March 26).

Judgment

Van Oosten J:

[1] The appellant was convicted in a regional court of the rape of a ten-year-old girl. He was represented by an attorney and pleaded E not guilty. In terms of the provisions of s 51(1)(b) of the Criminal Law Amendment Act 105 of 1977 (the Act) the trial court committed the appellant to the High Court for sentence. The matter came before Mlambo J, who was sitting with an assessor. The learned Judge was of the view that the proceedings in the trial court were in accordance with justice and he consequently confirmed the conviction. F The appellant testified in mitigation of sentence and after having heard argument the learned Judge, being of the view that substantial and compelling circumstances existed justifying a lesser sentence than the statutory prescribed minimum sentence, imposed a sentence of 15 years' imprisonment. An application for leave to appeal was launched G against both conviction and sentence, which was granted to this Court.

[2] The facts giving rise to the conviction were these. The appellant and the complainant were not strangers to one another. The appellant transported school children, including the complainant, to and from their school in a bakkie. According to the complainant the appellant, during the afternoon on the day of the incident during H August 1998, after having offloaded all the other children, proceeded with her to his shack in Snake Park which was some distance away from where she was living. He took her there on the pretence that dry-cleaned clothing had to be offloaded at his shack. Having arrived at his shack the appellant took her inside, locked the door and ordered I her to remove her clothes. She did so. He threatened to kill her should she tell anybody. The appellant undressed, threw her on the bed and proceeded to rape her. She got up, dressed herself and the appellant again threatened her. She screamed during the ordeal, which must have alerted an unknown J

2004 (1) SACR p480

Van Oosten J

woman, who, when they left the shack, asked her why she was screaming. She told her that nobody had screamed. The appellant A then took her home. Thereafter she made reports concerning the incident to her sister, her aunt and her mother. She later in the company of her mother and a police official pointed out the shack where the appellant was found and arrested. In the charge-sheet the date of the appellant's arrest is stated as 25 October 1998. B

[3] In addition to the complainant the State also called her aunt and her mother to testify. They both confirmed that the complainant, on separate occasions, reported the rape to each of them. Of significance, however, is the time given by them when the reports were made. According to the complainant's aunt the report to her was made during September, although she was unable to recall the exact C year. She further stated that the complainant was taken to the doctor 'not long after that'. The complainant's mother, on the other hand, was more precise...