S v Mashiane

• Jurisdiction: South Africa
• Judge: Webster, J
• Judgment Date: 18 October 2004
• Docket Number: C512/2004
• Hearing Date: 18 October 2004
• Court: Transvaal Provincial Division
• Citation: 2004 JDR 0669 (T)

Webster J:

1.

THE STATE VS PULENG SANDY MASHIANE

2.

THE STATE VS EVANS RANTHEKO C27/2004, 3891

3.

THE STATE VS PETER MAPUDI PHASHA AND ANOTHER C697/2004, 3892.

4.

The accused was convicted in the Magistrate's Court, Lebowakgomo, of malicious injury to property and sentenced to a fine of R600 or three (3) months' imprisonment, wholly suspended for one (1) year on condition that he is not convicted of malicious injury to property committed during the period of suspension. He was further ordered to compensate the complainant in the sum of R100 on or before 30 June 2004.

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Webster J

5.

The evidence of the State rests on a single witness, the complainant. Her testimony is that she was asleep at her home when she heard the sound of the footsteps of a running person. She then heard her gate being opened forcefully. She woke up and opened the door. There was a light in the courtyard. She saw the accused standing at the entrance of the courtyard. She identified him and thereafter went into the house, secured her baby onto her back and left the house pulling the door behind her. She testified that when she did that, the accused was still there at the courtyard. She asked him what he wanted from her at that time of the night but the accused instead asked her where she was proceeding to.

6.

The accused then ran behind the house. A screwdriver fell from him. The complainant picked up the screwdriver and then ran into a mielie-field where she hid. Whilst so hiding she heard the sound of a breaking door. She was afraid of returning to her home and spent the night in a donga together with her baby. The next morning she returned to her home and found that the door to her house had been damaged.

7.

In the cross-examination the accused denied having being the person who arrived at the complainant's home and acted in the manner described by the complainant. The accused testified in his own defence. He denied having

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Webster J

been the person who was at the complainant's residence and having broken down her door.

8.

The judgment of the presiding officer consists of two sentences which read: "The complainants version is accepted by Court. He (sic) is a credible witness even though she is illiterate. She knows accused since he was young."

9.

There are three basic procedural problems in this matter . The first of these relates to the explanation given by the trial court to the accused regarding his right to legal representation. The explanation is contained in a roneod form which reads as follows: "You are entitled to legal representation acquired at your own expense. If you cannot afford the services of a legal representation (sic) you may apply for legal aid from the Legal Aid Board or approach a law clinic lawyers (sic) for human rights. These bodies may appoint a lawyer to represent you during the trial of this case.

Do you understand?

Answer: Yes.

What do you choose to do?

Answer: Elect to conduct own defence."

This explanation is clearly inadequate. The explanation of the right to legal representation encompasses more than what appears on this form. What has to be explained to

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Webster J

an accused person, has been the subject of various cases. In S v Radebe; S v Mbonani 1988 (1) SA 191 (T), Goldstone J, as he then was, stated at page 196 G -I:

'If there is a duty upon judicial officers to inform unrepresented accused of their legal rights then I can conceive of no reason why the right to legal representation should not be one of them. Especially where the charge is a serious one which may merit a sentence which could be materially prejudicial to the accused such an accused should be informed of the seriousness of the charge and of the possible consequences of a conviction. Again, depending upon the complexity of the charge, or the legal rules relating thereto, and the seriousness thereof; an accused should not only be told of this right but he should be encouraged to exercise it. He should be given a reasonable time within which to do so. He should also be informed in appropriate cases that he's entitled to apply to the Legal Aid Board for assistance. A failure on the part of a judicial officer to do this having regard to the circumstances of a particular case, may result in an unfair trial in which there may well be a complete failure of justice...".

The...