S v GR

• Jurisdiction: South Africa
• Citation: 2015 (2) SACR 79 (SCA)

S v GR
2015 (2) SACR 79 (SCA)

2015 (2) SACR p79

Citation	2015 (2) SACR 79 (SCA)
Case No	958/2013; [2014] ZASCA 144
Court	Supreme Court of Appeal
Judge	Cachalia JA, Willis JA and Schoeman AJA
Heard	September 9, 2014
Judgment	September 26, 2014
Counsel	AL Thomu for the appellant, instructed by the Justice Centre, Thohoyandou and Bloemfontein.; M Sebelbele for the state.

Flynote : Sleutelwoorde

Trial — The accused — Accused not legally represented — Magistrate failing to explain to accused who was facing sentence of life imprisonment that E he was entitled to legal representation — Evident from record that accused an unsophisticated person who had difficulty cross-examining — Failure to explain accused's rights amounting to irregularity in circumstances vitiating entire trial — Conviction and sentence set aside.

Headnote : Kopnota

The appellant was tried in a regional court on a charge of the rape of an F 11-year-old girl. He was not legally represented at the trial which was brief and resulted in his conviction. The case was then transferred to the High Court for sentencing purposes where the appellant was legally represented but the legal representative did not dispute the fairness of the earlier proceedings. Although the appellant had indicated when he first G appeared in court that he wanted legal representation, there was no indication when he changed his mind and decided to waive his rights to legal representation. Neither did the trial magistrate inform the appellant of the consequences of proceeding with the trial without the assistance of a legal representative, nor did the magistrate encourage him to obtain the services of one before he was made to plead to the charge. The magistrate did, however, explain to him after he had pleaded, that, if convicted, the H matter would be transferred to the High Court and he could face a sentence of life imprisonment but this was merely communicated to him as a matter of fact and not with a view to encouraging him to obtain legal representation owing to the seriousness of the charge.

Held, that it was clear that if a judicial officer believed that an accused was aware of his rights, the right to legal representation nevertheless had to be properly I explained to him in open court. If the accused chose not to have legal representation in serious cases, it was incumbent on the presiding officer to inform the accused of the seriousness of the charges and advise him to make use of a legal representative. It could safely be assumed in any case where the possibility of imprisonment was real, an injustice would result if an accused did not have legal representation. For such explanation to be J

2015 (2) SACR p80

A effective it had to be done prior to the commencement of the trial, which meant prior to the accused pleading to the charges. (Paragraph [10] at 83i–84b.)

Held, further, that from the record it was clear that the appellant was an unsophisticated person with no understanding of the law or the legal processes and this was evident if regard were had to his ineptitude when B cross-examining the complainant. It was unfair to allow cross-examination of an undefended, unsophisticated accused on his failure to cross-examine, and that should not have been held against him. It was apparent furthermore that there were incongruities and other matters where proper legal representation might have made a difference in the presentation of the appellant's defence. (Paragraphs [23]–[25] at 87g–i.)

C Held, further, that the failure to explain the appellant's right to legal representation constituted an irregularity and this had prejudiced the appellant in the presentation of his case and it therefore vitiated the entire trial. The conviction and sentence accordingly had to be set aside. (Paragraph [31] at 90a.)

Cases cited

Southern Africa D

Aktiebolaget Hässle and Another v Triomed (Pty) Ltd 2003 (1) SA 155 (SCA) ([2002] 4 All SA 138): referred to

Argus Printing and Publishing Co Ltd and Others v Esselen's Estate 1994 (2) SA 1 (A) ([1994] 2 All SA 160): referred to E

Hlantlalala and Others v Dyantyi NO and Another 1999 (2) SACR 541 (SCA) ([1999] 4 All SA 472): dicta at 545f – h applied

Mashilo and Another v Prinsloo 2013 (2) SACR 648 (SCA) ([2012] ZASCA 146): dictum in para [13] applied

Mohamed and Another v President of the Republic of South Africa and Others 2001 (2) SACR 66 (CC) (2001 (3) SA 893; 2001 (7) BCLR 685): dicta in paras [63] – [64] applied F

R v Hlongwane 1959 (3) SA 337 (A): referred to

S v Daniëls en 'n Ander 1983 (3) SA 275 (A): dicta at 299G – H and 299J – 300B applied

S v Gasa and Others 1998 (1) SACR 446 (D): applied G

S v Heslop 2007 (1) SACR 461 (SCA) (2007 (4) SA 38; [2007] 4 All SA 955): referred to

S v Hlapezula and Others 1965 (4) SA 439 (A): referred to

S v Jaipal 2005 (1) SACR 215 (CC) (2005 (4) SA 581; 2005 (5) BCLR 423; [2005] ZACC 1): referred to

S v Khumalo en Andere 1991 (4) SA 310 (A): referred to H

S v Kolea 2013 (1) SACR 409 (SCA): referred to

S v Legoa 2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373; [2002] ZASCA 122): referred to

S v Lombard en 'n Ander 1994 (2) SACR 104 (T) (1994 (3) SA 776): referred to

S v Maake 2011 (1) SACR 263 (SCA): referred to

S v Mabuza and Others 2009 (2) SACR 435 (SCA) ([2007] ZASCA 110): dictum in para [15] applied I

S v Makatu 2006 (2) SACR 582 (SCA): referred to

S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665; [1995] ZACC 3): referred to

S v Mamabolo (E TV and Others Intervening) 2001 (1) SACR 686 (CC) J (2001 (3) SA 409; 2001 (5) BCLR 449; [2001] ZACC 17): referred to

2015 (2) SACR p81

S v Manuel 2001 (4) SA 1351 (W): dicta at 1355I – 1356A approved A

S v Mavundla 1976 (4) SA 731 (N): dictum at 733B approved

S v May 2005 (2) SACR 331 (SCA) (2005 (10) BCLR 944; [2005] 4 All SA 334): applied

S v Moos 1998 (1) SACR 372 (C): referred to

S v Mukwevho 2010 (1) SACR 349 (GSJ): referred to

S v Ndlovu 2003 (1) SACR 331 (SCA) ([2003] 1 All SA 66): referred to B

S v Ndlovu; S v Sibisi 2005 (2) SACR 645 (W): referred to

S v Radebe; S v Mbonani 1988 (1) SA 191 (T): dicta at 195B and 196F – I applied

S v Sikhipha 2006 (2) SACR 439 (SCA): referred to

S v Trainor 2003 (1) SACR 35 (SCA) ([2003] 1 All SA 435): referred to

S v Van Aswegen 2001 (2) SACR 97 (SCA): referred to C

S v Van der Meyden 1999 (1) SACR 447 (W) (1999 (2) SA 79): referred to.

England

Andre Paul Terence Ambard v The Attorney-General of Trinidad and Tobago [1936] 1 All ER 704 (PC): referred to

R v Secretary for the Home Department, ex parte Daly [2001] 3 All ER 433 (HL): D referred to.

Case Information

AL Thomu for the appellant, instructed by the Justice Centre, Thohoyandou and Bloemfontein.

M Sebelbele for the state. E

An appeal against a conviction for rape and a sentence of life imprisonment imposed in the Limpopo High Court, Thohoyandou (Hetisani J).

Order

1.

The appeal is allowed. F

2.

The conviction and sentence are set aside.

Judgment

Schoeman AJA (Cachalia JA concurring):

[1] The appellant was charged in the regional court, Sibasa, with the G rape of a young girl who was 11 years old at the time of the incident in August 2002. He did not have a legal representative at the time the trial commenced. After a very brief trial he was convicted. The provisions of s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act) read with part 1 of sch 2 to the Act were applicable, as the victim was under H the age of 16 years, and therefore the case was transferred to the High Court for sentencing purposes, as life imprisonment is the prescribed minimum sentence. In the High Court, Thohoyandou, the appellant was sentenced to life imprisonment (Hetisani J). The appellant appeals to this court against both conviction and sentence with leave of the court a quo. I

[2] In this court the appellant was represented by counsel from the Thohoyandou Justice Centre. Several grounds of appeal were raised mainly relating to the irregular conduct of the trial. It was contended that the regional court magistrate failed: (a) to apprise the appellant of his right to legal representation before the trial commenced; (b) properly to J

2015 (2) SACR p82

Schoeman AJA (Cachalia JA concurring)

A explain his right to cross-examination; and (c) to assist the appellant when it was clear that the appellant did not know how to cross-examine the witnesses.

[3] I should add that after the appellant was convicted and the matter B transferred to the High Court for sentencing, the appellant was legally represented. But it seems that the legal representative did not dispute the fairness of the proceedings before the magistrate and the judge did not consider whether the proceedings in the trial court were in accordance with justice prior to sentencing the appellant to life imprisonment. This omission, however, has no bearing on the outcome of the appeal as this C court is in as good a position to determine whether the trial was conducted fairly as the sentencing judge was. I turn to consider each of the irregularities, which it is contended cumulatively vitiated the fairness of the trial.

The trial magistrate failed to inform the appellant of his right to D legal representation

[4] The record reflects that before the trial commenced the prosecutor informed the magistrate that the appellant had previously indicated that he wished to conduct his own defence. The magistrate enquired of the appellant whether that was the position whereafter the appellant E answered 'yes'. The appellant was thereupon asked to plead to the charge. He entered a plea of not guilty.

[5] We were belatedly provided with transcripts of the district and regional courts' record pertaining to the postponement proceedings as well as an...