S v Mabaso and Another

• Jurisdiction: South Africa
• Citation: 1990 (3) SA 185 (A)

S v Mabaso and Another
1990 (3) SA 185 (A)

1990 (3) SA p185

Citation	1990 (3) SA 185 (A)
Court	Appellate Division
Judge	Hoexter JA, Smalberger JA, Milne JA, Eksteen JA and Nicholas AJA
Heard	November 9, 1989
Judgment	March 26, 1990

Flynote : Sleutelwoorde

Criminal procedure — Trial — Irregularity — What constitutes — Duty of judicial officer to inform unrepresented accused of right to legal representation — Failure to do so not inevitably resulting in irregularity in judicial proceedings — Whether or not irregularity committed always hinges upon peculiar facts of case, including extent of C accused's own knowledge of his rights.

Criminal procedure — Trial — The accused — Legal representation of — Accused has right to legal representation at criminal proceedings — 'Criminal proceedings' includes not only trial, but also any proceedings in criminal case, including preliminary and incidental hearings — Accused thus has right to legal representation at proceedings conducted D in terms of s 119 of Criminal Procedure Act 51 of 1977 — Failure of judicial officer to inform unrepresented accused of right to legal representation not inevitably resulting in irregularity leading to failure of justice — In casu, appellants unrepresented at s 119 proceedings in magistrate's court — Appellants informed of right to E representation at conclusion of s 119 proceedings — Record of s 119 proceedings proved and received as part of record at subsequent trial in Provincial Division — Section 119 record containing evidential material relevant to guilt of appellants, including two pleas of guilty to two of F three counts, admissions made in course of answering questions put by magistrate in terms of s 121(1) read with s 112(1)(b), informal admissions made in course of inquiry in terms of s 122(1) read with s 115, and formal admissions which appellants agreed could be recorded in terms of s 115(2)(b) — Appellants convicted — Appeal pursuant to special entry on grounds that magistrate's failure to inform appellants G of right to legal representation at commencement of s 119 proceedings represented gross irregularity vitiating entire plea proceedings, with consequence that trial Court erred in failing to set aside s 119 proceedings — Court on appeal holding that object of s 119 proceedings H was partly to identify cases where accused acknowledged guilt, and partly to ascertain and clarify issues actually in dispute (where accused pleads not guilty) — Since, by plea of guilty, accused acknowledges guilt, object of questioning in terms of s 121(1) read with s 112(2)(b) not further incrimination, but to prevent erroneous entering I of plea of guilty — Cannot be said that admission of accused's statement at s 119 proceedings unjust or inequitable merely because of failure to inform accused of right to legal representation — Link between failure to inform and plea of guilty speculative and remote — Loss of tactical advantage as result of election to plead guilty not an J unfairness which the law can recognise — Appeal accordingly dismissed.

1990 (3) SA p186

Headnote : Kopnota

Where a general duty rests upon a judicial officer to inform an unrepresented accused that he has a right to A be legally represented, the failure to discharge that duty does not inevitably involve the commission of an irregularity in the judicial proceedings involved. Whether or not an irregularity has been committed will always hinge upon the peculiar facts of the case; and much depends upon the extent of the accused's own knowledge of his rights.

An accused has a fundamental right to legal advice and to legal B representation. That right has received statutory recognition in, for example, s 73(2) of the Criminal Procedure Act 51 of 1977, which provides that '(a)n accused shall be entitled to be represented by his legal advisor at criminal proceedings...'. 'Criminal proceedings' would include not only criminal trials, but also any proceedings in a criminal case, including preliminary and incidental hearings, for example proceedings under s 119. An accused thus has a right to be represented by his legal advisor in s 119 proceedings.

C A judicial officer presiding at criminal proceedings has a duty to inform an unrepresented accused of his right to legal representation, and a failure to do so might lead a Court of appeal to conclude that there had been a failure of justice and that the conviction should be set aside.

In casu, the appellants had been charged with one count of robbery with aggravating circumstances (count 1), and two counts of murder (counts 2 and 3). The charges were put to the appellants in a magistrate's court, D where the second appellant had pleaded not guilty to all three counts, and the first appellant had pleaded guilty to counts 1 and 2 and not guilty to count 3. The magistrate proceeded to deal with the first appellant in the manner provided for in s 119 of the Criminal Procedure Act, which enjoined him to question the first appellant in terms of s 112(1)(b) of the Act 'in order to ascertain whether he [admitted] the allegations in the charge to which he [had] pleaded guilty'. Section 121(2)(b) of the Act provided that, if the magistrate was not satisfied that the accused admitted the allegations in the charge, he should enter a plea of not guilty, but that 'an allegation with reference to which E [he] was satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation'. The magistrate had explained the procedure to the first appellant, who had indicated that he understood the explanation, before proceeding to question him in regard to counts 1 and 2. After having questioned the first appellant, pleas of not guilty were entered in respect of counts 1 and 2, and formal admissions in respect of those counts were recorded. F

Section 122(1) of the Act provided that, where an accused has pleaded not guilty to an offence charged, the court should act in terms of s 115. Section 115 provided, inter alia, for an accused, who had pleaded not guilty, to disclose his defence if he so wished; for the magistrate to question the accused in order to establish which allegations are admitted or denied; and for allegations not disputed to be recorded as admissions, if the accused consented thereto. The second appellant, in G disclosing his defence, indicated that he wished to plead guilty to count 1. After the magistrate had explained to him that he was under no compulsion to change his plea, the charges were again put to him and the second appellant pleaded guilty to counts 1 and 2. The magistrate, after explaining to him the procedure to be followed, then proceeded to question him in terms of s 112(1)(b) on counts 1 and 2. Pleas of not guilty were then entered in respect of those counts, and certain formal H admissions were recorded in respect thereof. The magistrate at that stage asked the appellants whether they wished to be represented by pro deo counsel at their trial, to which the appellants responded that they would arrange their own counsel. The proceedings were then adjourned for the decision of the Attorney-General, who decided that they should be arraigned in a Superior Court.

The record of the proceedings in the magistrate's court (the s 119 record) was proved and received as part of the record in the trial Court in terms of s 112(4) of the Act. The s 119 record played an important role in the cross-examination of the appellants and in the trial Court's reasons for conviction, although there was, in addition, a substantial I body of evidence before the Court, quite independent of the s 119 record. The appellants were found guilty on all the charges and the first appellant was sentenced to death in respect of one of the charges of murder.

In an appeal pursuant to a special entry, the main contention on behalf of both the appellants was that the magistrate's failure to inform the J appellants, at the outset of

1990 (3) SA p187

A the s 119 proceedings, of their right to legal representation represented a gross irregularity vitiating the entire plea proceedings before the magistrate, with the consequence that the trial Court had erred in failing to 'set aside' the plea proceedings before the magistrate. Secondly, it was argued that, after the magistrate had entered pleas of not guilty and had proceeded to deal with the appellants under ss 122(1) and 115, he had committed a further irregularity in that he had failed to explain to the appellants (a) that B they were not obliged to answer questions; (b) what the legal effect of formal admissions by them would be; and (c) that they were in fact not obliged to make any formal admissions.

Held, that each of the appellants had had an undoubted right to be represented by a legal advisor at the s 119 proceedings.

Held, further, that the magistrate's failure to inform the appellants of their right to legal representation before they pleaded would have amounted to an irregularity only if the appellants had been shown to C have been ignorant of the right: the evidence in the instant case did not appear to support a finding that the appellants were in fact so ignorant.

Held, further, that it appeared that the object of the s 119 procedure was partly to identify the cases where the accused acknowledged his guilt (which might render a trial unnecessary), and partly (in cases where the accused pleaded not guilty) to ascertain and clarify the issues actually in dispute.

D Held, further, that the s 119 record contained evidential material relevant to the guilt of the appellants: it consisted of two pleas of guilty on two of the counts; admissions made by the appellants in the course of answering questions by the magistrate in terms of s 121(1) read with s 112(1)(b) of the Act; informal admissions made by the...