S v Mashaba

• Jurisdiction: South Africa
• Citation: 2004 (1) SACR 214 (T)

S v Mashaba
2004 (1) SACR 214 (T)

2004 (1) SACR p214

Citation	2004 (1) SACR 214 (T)
Case No	A2918/2003
Court	Transvaal Provincial Division
Judge	Van Der Merwe J and Preller J
Heard	November 4, 2003
Judgment	November 4, 2003

Flynote : Sleutelwoorde E

Trial — Record — Duty of F presiding officer to keep record of proceedings — Duty of magistrate to ensure that clearly audible record of proceedings made — Such necessary to enable transcriber to prepare clear and understandable transcription of proceedings — Unnecesary delays avoided if magistrate were to peruse record and effect necessary improvements before record submitted for review. G

Trial — Record — Duty of presiding officer to keep record of proceedings — Everything that happens during course of trial should be recorded — Recording machine not to be switched off — Switching off of recording machine creating highly undesirable impression that something being done that should be kept from eyes of reviewing Judge. H

Trial — The accused — Rights of — Right to cross-examine witnesses — Even though accused might have better understanding of purposes of cross-examination than average unrepresented accused, nonetheless essential that right to cross-examine and purpose of cross-examination be fully explained to undefended accused. I

Trial — The accused — Rights of — Explanation of at close of State case — Accused's right to remain silent, to make unsworn statement or to give evidence under oath should be clearly explained to undefended accused — And that, if he elects to give evidence, he will be subject to cross-examination and that such evidence carries more weight than unsworn statement from dock. J

2004 (1) SACR p215

Headnote : Kopnota

It is the responsibility of a presiding officer in a criminal trial A to ensure that a clearly audible record of the proceedings is made so that the transcriber will be in a position to prepare a clear and understandable transcription of the proceedings. A lot of unnecessary delays can be avoided if the magistrate were to peruse the record and effect the necessary improvements before the record is submitted for review. (At 215i - j.)

A magistrate's court is a court of record, which means that everything B that happens during the course of a trial should be recorded. Although nothing improper might be said or happen when the recording machine is switched off, it creates the overwhelming impression that something is done which should be kept away from the eyes of the reviewing Judge. That impression is highly undesirable and should be avoided at all costs. (At 216g - h.)

Although an accused might have an understanding of the purposes of C cross-examination which is far better than that of the average unrepresented accused, it is nonetheless essential that the right to cross-examine and also the purpose of cross-examination be fully explained to an accused who is unrepresented. (At 217f - g.)

At the end of the State case it should be clearly explained to an undefended accused that he has the right to remain silent, to make an D unsworn statement or to give evidence under oath. It should further be explained to him that, if he elects to give evidence under oath, he will be subject to cross-examination by the prosecutor and to questioning by the court. It should furthermore be explained to him that evidence under oath which is tested by cross-examination carries more weight than a mere unsworn statement from the dock. (At 218c - e.) E

Case Information

Automatic review. The facts appear from the reasons for judgment.

Judgment

Preller J:

This matter came before me on automatic review and I addressed several questions to the magistrate. I F will deal with them under the following headings:

1. The record

The record contained so many 'inaudibles' that it was difficult to follow the proceedings. I requested the magistrate to listen to the recording and to effect such improvements to the record as he was able G to. The trouble that the magistrate took is appreciated and the result is a greatly improved record. I do, however, wish to raise the following criticisms and trust that it will be viewed as constructive:

(a)

Judging by the datestamp on the copy of my letter that was returned, it was received by the magistrate on 11 August. His reply is dated 23 October, which indicates a delay of H more than two...