S v Makhandela

JurisdictionSouth Africa
JudgeWhiting AJ
Judgment Date30 July 2004
Docket NumberA198/02
CourtWitwatersrand Local Division
Hearing Date30 July 2004
Citation2005 JDR 0240 (W)

Whiting AJ:

The appellant stood trial in the regional court in Randfontein. He was the second of two accused who appeared on a charge of robbery with aggravating circumstances. It was alleged that on or about 27 August 1999 and at or near Eureka Cafe in the Randfontein district they robbed Rita and George Pereira at gunpoint of about R4000 in cash. On 1 February 2001 they both pleaded not guilty on the charge and the trial proceeded. On 8 June 2001 they were both found guilty as charged and sentenced to fifteen years' imprisonment. The appellant (the second accused) has appealed against his conviction and sentence.

At the trial the first accused was represented by an attorney, Mr Venter, but the appellant was not legally represented. When the appeal was called early last year, the court raised the question whether there might have been a procedural irregularity concerning the appellant's right to legal representation at his trial at state expense. The hearing of the appeal was postponed so that counsel might prepare and present argument on this question. The resumed hearing has now taken place before a full bench.

The essence of the procedural question to be considered is reflected in the following extract from the proceedings in the regional court on 16 March 2000:-

2005 JDR 0240 p2

Whiting AJ

'HOF: En u bevestig dat u reg tot regsverteenwoordiging aan u verduidelik is by die vorige geleentheid en u het toe besluit om u eie verdediging te hanteer?

BESKULDIGDE 2: Nee.

HOF: Het hulle nie aan u verduidelik nie meneer?

BESKULDIGDE 2: Ek het die laaste keer gesê ek wil 'n prokureur hê.

HOF: Wat u self gaan betaal of aansoek of [sic] Regshulp?

BESKULDIGDE 2: Ek gaan regshulp vra.

HOF: Die saak kan dan afstaan.

AANKLAER: Edelagbare, ek weet nie of sy al terug is nie.

HOF: Laat ons die saak maar uitstel vir regshulp.

AANKLAER: Edelagbare, mag ek net gou die klagstaat sien? Dit lyk vir my beskuldigde 2 se regshulp was reeds geweier.

HOF: Meneer, u was volgens die klagstaat, op 10 Februarie was u by die regshulpbeampte waar u aansoek gedoen het vir regshulp en die aansoek om regshulp is geweier.

BESKULDIGDE 2: Ja, dit is die waarheid. Ek wil nou vra dat ek moet net 'n kans gegun word, net 'n kort tydperk om my eie prokureur te gaan kry.

HOF: So gaan u u eie prokureur kry?

BESKULDIGDE 2: Ja.'

The court then postponed the matter, indicating that it was giving the appellant a final chance to obtain an attorney.

When the trial eventually commenced on 1 February 2001, the prosecutor indicated that the first accused was being defended by Mr Venter, and that the appellant was unrepresented as he had not paid Mr Venter. The appellant then indicated that he would conduct his own defence.

On the basis of the abovementioned exchanges it is clear that -

(1)

despite the fact that his application for legal aid had to his knowledge apparently already been refused, the appellant still wanted legal representation at state expense when he appeared in court on 16 March 2000; but

(2)

immediately after the presiding magistrate stated without comment that his application for legal aid had been refused, the appellant asked for an opportunity to engage his own attorney.

2005 JDR 0240 p3

Whiting AJ

On a realistic appraisal of this sequence of events, the reason for the appellant's sudden change of heart must have been that, once the presiding magistrate had stated without comment that his application for legal aid had been refused, he believed that the only option left to him was to engage his own representative. Moreover, there is no reason to think that, when the appellant said on 1 February 2001 that he would conduct his own defence, he was not still under the impression that he would not be able to obtain legal representation at state expense. In this regard it should be borne in mind that, when his rights to legal representation were originally explained to him, the appellant would presumably not have been told any more about representation at state expense than that, if he could not afford a legal representative, he could apply to the Legal Aid Board for a legal representative to be appointed to act for him at state expense. Compare s 73(2A) of the Criminal Procedure Act, 1977. The appellant can hardly be expected to have been aware that, despite the fact that his application for legal aid had apparently been refused, he could still seek the assistance of the presiding magistrate to obtain the legal representation at state expense which he desired.

The Legal Aid Board did not wish to have its own representation at these proceedings. It has, however, provided the...

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