S v Makhandela

• Jurisdiction: South Africa
• Citation: 2007 (2) SACR 620 (W)

S v Makhandela
2007 (2) SACR 620 (W)

2007 (2) SACR p620

Citation	2007 (2) SACR 620 (W)
Case No	A198/02
Court	Witwatersrand Local Division
Judge	Kriegler AJ, Kuny AJ and Whiting AJ
Heard	July 30, 2004
Judgment	February 18, 2005
Counsel	M Miller for the appellant.; P Schutte for the State.

Flynote : Sleutelwoorde G

Fundamental rights — Right to a fair trial — Right to be represented by legal practitioner — Right to have legal practitioner assigned at State expense if substantial injustice would otherwise result — Section 35(3)(f) and (g) of Constitution of Republic of South Africa, 1996 — Where accused's legal aid application unsuccessful, presiding judicial officer H having duty to determine whether substantial injustice likely — Seriousness of offence, complexity of case and capacity of accused to fend for himself to be taken into account — In casu, magistrate failing to inform appellant that failure of legal aid application not end of matter — Magistrate also failing to ascertain why appellant's legal aid application I unsuccessful — Given appellant's lack of financial resources, and possibility of 15-year sentence, presiding magistrate's breach of duty in effect depriving appellant of legal representation to which he was entitled under Constitution — Fundamental irregularity producing failure of justice — Conviction and sentence set aside.

Trial — Irregularity in — What constitutes — Failure of presiding magistrate to J carry out duties effectively depriving appellant of right to legal representation

2007 (2) SACR p621

at State expense — Whether or not this an irregularity vitiating A proceedings — Prior to 1994 accused not having right to legal representation at State expense, but having right to be legally represented — Convictions set aside where accused not afforded reasonable opportunity to secure own representation — Lack of representation having been seen as affecting proceedings and evidence as a whole — Not possible to separate B bad from good — No reason why pre-1994 categorisation of irregularities not continuing to apply in context of constitutionally broadened right to representation — Accordingly, irregularity per se producing failure of justice and unfair trial — Conviction and sentence set aside.

Headnote : Kopnota

The appellant appealed against his conviction of robbery with aggravating C circumstances and against the 15-year sentence imposed therefor. When the appeal was called, the Court raised a question concerning whether or not there had been a procedural irregularity regarding the appellant's right to legal representation at State expense. It appeared from the record that the appellant's application to the Legal Aid Board had either been turned down, or simply not processed. After a postponement to allow him to D appoint his own attorney, which he failed to do, the trial continued with the appellant conducting his own defence.

Held, that once the presiding magistrate had informed him that his application for legal aid had been unsuccessful, he must have believed that the only option left to him was to engage his own representative. Thereafter, when E the trial resumed after the postponement, he would still have been under the impression that he would not be able to obtain representation at State expense. The appellant could hardly have been expected to know that, even though his legal aid application had been turned down, he could still seek the assistance of the presiding magistrate to obtain representation. (At 624g - j.) F

Held, further, that in terms of s 35(3)(f) and (g) of the Constitution of the Republic of South Africa, 1996, the appellant had had the right to legal representation at State expense if substantial injustice would otherwise result. While an accused wishing to avail himself of this right would ordinarily apply to the Legal Aid Board for assistance, it was for the presiding judicial officer to determine whether substantial injustice would G result from a lack of representation. Consequently, where an accused's legal aid application was unsuccessful, it would be the duty of the presiding magistrate to address this question, taking into account particularly the seriousness of the offence, the complexity of the case and the capacity of the accused to fend for himself. In casu the magistrate had clearly been at fault. He should have informed the appellant that the failure of his legal aid H application was not the end of the matter, and explained to him the role that he, the magistrate, had to play. He should have realised that the appellant's decision to appoint an attorney, far from being an informed choice, was simply the only option that the appellant thought was open to him. The magistrate should also have taken steps to ascertain why the appellant's legal aid application had been turned down. Given the appellant's lack of I financial resources, and the fact that he faced a possible 15-year sentence, the presiding magistrate's breach of duty thus had the effect of depriving the appellant of the legal representation to which he had been entitled under the Constitution. (At 625f - 626g.)

Held, further, that it was necessary to decide whether this was so fundamental an irregularity as to vitiate the proceedings without the merits of the matter J

2007 (2) SACR p622

A having to be considered; or whether it was the kind of irregularity that did not result in a failure of justice, leaving it open to the Court to separate the tainted part of the proceedings from the untainted, and thus to make a finding on the merits. Prior to 1994 an accused had not had the right to legal representation at State expense, but he had the right to be legally represented; this meant that he had the right to arrange his own B representation without recourse to State funding. In a number of cases convictions had been set aside where an accused had not been afforded a reasonable opportunity to secure his own representation. It was clear that the lack of representation had been seen as affecting the proceedings and evidence as a whole, and that it had not been possible to separate the bad from the good. (At 626h - 628c.)

Held, further, that the post-1994 constitutional right to representation at State expense had been put on the same footing as an accused's basic right to have his own representative. There was no reason why C the pre-1994 categorisation of irregularities should not continue to apply in the context of the constitutionally broadened right to representation. Not only did this categorisation emphasise the fundamental nature of the right to D representation, it also accommodated the truism that it was impossible to say what effect a properly conducted defence might have had on the result of a trial. (At 628f - i.)

Held, accordingly, that the irregularity by which the appellant had been deprived of his right to legal representation at State expense was one which per se had produced a failure of justice and an unfair trial; and it was not necessary to E consider the merits. (At 629a - b.)

Conviction and sentence set aside.

Annotations:

Cases cited

Reported cases

Hlantlalala and Others v Dyantyi NO and Another 1999 (2) SACR 541 (SCA) ([1999] 4 All SA 472): referred to F

Legal Aid Board v Msila and Others 1997 (2) BCLR 229 (E): referred to

Mgcina v Regional Magistrate, Lenasia and Another 1997 (2) SACR 711 (W): referred to

R v Joannou 1957 (4) SA 385 (FC): referred to

R v Mati and Others 1960 (1) SA 304 (A): referred to

S v Blooms 1966 (4) SA 417 (C): referred to G

S v Chaane en Andere 1978 (2) SA 891 (A): referred to

S v Dangatye 1994 (2) SACR 1 (A): referred to

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

S v Felthun 1999 (1) SACR 481 (SCA) ([1999] 2 All SA 182): referred to

S v Khanyile and Another 1988 (3) SA 795 (N): referred to

S v Lavhengwa 1996 (2) SACR 453 (W): referred to H

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

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

S v Mkhise; S v Mosia; S v Jones; S v Le Roux 1988 (2) SA 868 (A): referred to

S v Mkhondo 2001 (1) SACR 49 (W): referred to

S v Mnguni 2002 (1) SACR 294 (T) ([2002] 2 All SA 519): referred to I

S v Moodie 1961 (4) SA 752 (A): referred to

S v Moodie 1962 (1) SA 587 (A): referred to

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

S v Mthwana 1989 (4) SA 361 (N): referred to

S v Naidoo 1962 (4) SA 348 (A): referred to

S v Nkondo 2000 (1) SACR 358 (W): referred to J

2007 (2) SACR p623

S v Radebe; S v Mbonani 1988 (1) SA 191 (T): referred to A

S v Ramalope 1995 (1) SACR 616 (A): referred to

S v Rudman and Another; S v Mthwana 1992 (1) SACR 70 (A) (1992 (1) SA 343): referred to

S v Sallem 1987 (4) SA 772 (A): referred to

S v Seheri en Andere 1964 (1) SA 29 (A): referred to

S v Shabangu 1976 (3) SA 555 (A): referred to B

S v Shikunga and Another 1997 (2) SACR 470 (Nm) (2000 (1) SA 616; 1997 (9) BCLR 1321): referred to

S v Tuge 1966 (4) SA 565 (A): referred to

S v Van Wyk en 'n Ander 1972 (1) SA 787 (A): referred to

S v Vermaas; S v Du Plessis 1995 (2) SACR 125 (CC) (1995 (3) SA 292; 1995 (7) BCLR 851): referred to C

S v Wessels and Another 1966 (4) SA 89 (C): referred to

S v Yusuf 1968 (2) SA 52 (A): referred to.

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, s 35(3)(f) and (g): see Juta's Statutes of South Africa 2006/7 vol 5 at 1-26. D

Case Information

Appeal against conviction and sentence imposed in a regional court. The facts appear from the judgment of Whiting AJ. Kriegler AJ and Kuny AJ delivered separate concurring judgments.

M Miller for the appellant.

P Schutte for the State. E

Cur adv vult.

Postea (February 18).

Judgment

Whiting AJ:

The appellant stood trial in the regional court in Randfontein. F He was the...