S v Makhandela

• Jurisdiction: South Africa
• Court: Witwatersrand Local Division
• Judge: Kriegler AJ, Kuny AJ and Whiting AJ
• Judgment Date: 18 February 2005
• Citation: 2007 (2) SACR 620 (W)
• Hearing Date: 30 July 2004
• Docket Number: A198/02
• Counsel: M Miller for the appellant.P Schutte for the State.

Whiting AJ:

The appellant stood trial in the regional court in Randfontein. F 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 R4 000 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 G as charged and sentenced to 15 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 H 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 I 16 March 2000 -

'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.

Whiting AJ

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 C 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 E 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 F 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.

On a realistic appraisal of this sequence of events, the reason for G 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 H 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 I 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 51 of 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 J desired.

Whiting AJ

The Legal Aid Board did not wish to have its own representation at A these proceedings. It has, however, provided the Court with the following information, which has been accepted by counsel on both sides as correct -

(1)

The Board has no record of an application to it by the appellant for legal representation at his trial.

(2)

It concludes that it is probable that it never received, and B therefore never considered, such an application.

(3)

If such an application had been received, it ought in the ordinary course to have been granted.

It should also be mentioned that it is accepted by both counsel that at C the relevant time channels of communication between applicants and the Board were sometimes unsatisfactory. Consequently, it may be that the application which the appellant made for legal aid was, through failure of these channels and without any fault on his part, never actually considered by the Board.

Before 1994 an accused did not have a right to legal representation at D State expense. In practice the pro deo system fulfilled a very important function by providing legal representation at State expense in capital cases. But there was no rule of law requiring pro deo counsel to be appointed, and the failure to appoint such counsel would not in itself have constituted an irregularity which might vitiate the subsequent E proceedings. See R v Mati and Others 1960 (1) SA 304 (A) at 306 - 7; S v Chaane en Andere 1978 (2) SA 891 (A), particularly at 897C; S v Rudman and Another; S v Mthwana 1992 (1) SACR 70 (A) (1992 (1) SA 343), where the judicial attempt to broaden and strengthen legal representation at State expense in S v Khanyile and Another 1988 (3) SA 795 (N) was rejected. F

However, with the coming of the new constitutional order there was a fundamental change. Following a similar provision in s 25(3)(e) of the interim Constitution, s 35(3) of the Constitution of the Republic of South Africa, 1996, now provides -

'Every accused person has a right to a fair trial, which includes the right - G

. . .

(f)

to choose, and be represented by, a legal practitioner, and to be informed of this right promptly; H

(g)

to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

. . . .'

These constitutional provisions have been reinforced by amendments to s 73 of the Criminal Procedure Act 51 of 1977, and to the Legal Aid Act 22 of 1969.

In terms of the Constitution, the appellant thus had the right to legal I representation at State expense 'if substantial injustice would otherwise result'. An accused who wishes to avail himself of this right will in the ordinary course apply to the Legal Aid Board for the appointment of a legal representative to act for him. However, it is clear that it is for the judicial officer presiding at the trial to determine whether 'substantial J

Whiting AJ

A injustice would otherwise result'. See S v Vermaas; S v Du Plessis 1995 (2) SACR 125 (CC) (1995 (3) SA 292; 1995 (7) BCLR 851) at 133a (SACR) and 299D (SA). Consequently, where an accused's application for legal aid has been unsuccessful, it will be the presiding magistrate's duty to address this question. See Mgcina v Regional Magistrate, Lenasia B and Another 1997 (2) SACR 711 (W) at 732h - 733a, 734a - f, 735c - d. To discharge this duty he would have to take account of various factors, including in particular the seriousness of the offence, the complexity of the case and the capacity of the accused to fend for himself. See the Vermaas case supra at 133a - b and 299D - E; Mgcina's case supra at 733d - e.

C In the circumstances of the present case, the presiding magistrate was clearly at fault in not pursuing the question of the appellant's entitlement to legal aid as soon as it appeared that his application had been turned down by the Board. He should have realised that the appellant was, at least on the face of it, entitled to legal aid. He should immediately have D informed the appellant that the fact that his application to the Board had been unsuccessful was not the end of the matter, and he should have explained to him the role which he, the presiding magistrate, had to play. He should not have been diverted by the appellant's request to be afforded an opportunity to engage his own attorney. He should have realised that this was in all probability not an informed choice by the E appellant but was made in the mistaken belief that it was the only option still open to him. The presiding magistrate should clearly also have taken steps to ascertain why the appellant's application for legal aid had been unsuccessful.

There can be no doubt about the result which the taking of such steps F should have produced. In view of the appellant's apparent lack of financial resources and the fact that he was charged with an offence for which the presumptive minimum penalty was 15 years' imprisonment, no other reasonable conclusion would have been possible than that substantial injustice would result if...