S v Matladi
Jurisdiction | South Africa |
Citation | 2002 (2) SACR 447 (T) |
S v Matladi
2002 (2) SACR 447 (T)
2002 (2) SACR p447
Citation |
2002 (2) SACR 447 (T) |
Case No |
A165/2002 |
Court |
Transvaal Provincial Division |
Judge |
Webster J and Bosielo J |
Heard |
July 16, 2002 |
Judgment |
July 16, 2002 |
Flynote : Sleutelwoorde
Trial — Irregularity in — What constitutes — Duty on presiding officer — Undesirable practice to ask accused persons B composite questions of their election, after their rights explained to them — To unlettered, incompetent, undefended accused lengthy explanation of her or his rights at close of State's cases has to be daunting and confusing experience — Lengthy composite question of what her or his election is has to be avoided at all costs — Questions have C to be put to accused in simple manner and one at time and accused person afforded opportunity of responding appropriately to each of questions.
Trial — Irregularity in — What constitutes — Accused indicating intention to testify and call witness — After witness testified, accused asked 'Is that your case?' — Magistrate then D closing defence case without accused testifying — Clear that accused not afforded opportunity to exercise his chosen right to testify in his own defence — Accused, having intimated that he elected to testify, should have been asked directly whether he still wanted to testify — Magistrate duty bound to assist accused in exercising right to testify — Irregularity monumental and went to very ethos of justice and E notions of fairness — Accused deprived of opportunity to present his version — Irregularity so fundamental that it could be said that there was no trial at all.
Headnote : Kopnota
At the end of the State's case in a trial in a magistrate's court the accused's rights were explained to him, after which he was asked: F '(What) do you elect to do? Do you want to testify under oath? Do you want to call witnesses? Do you want to remain silent?' After the accused had indicated that he wished to testify and call a witness, the trial was postponed, as the witness was not available that day. At the resumption of the trial, the defence witness testified, whereafter the magistrate asked the accused whether he had any further witnesses. When G he answered in the negative, he was asked: 'Is that your case?' When he confirmed that it was, the magistrate closed his case and subsequently convicted him.
Held, that it was an undesirable practice to ask an accused persons composite questions of their election, after their rights had been explained to them. To unlettered, incompetent, undefended accused the lengthy explanation of her or his rights at the close of the H State's cases had to be a daunting and confusing experience. A lengthy composite question of what her or his election was had to be avoided at all costs. The questions had to be put to the accused in a simple manner and one at a time and the accused person afforded the opportunity of responding appropriately to each of the questions. (At 450a - c.) I
Held, further, that it was clear that the accused had not been afforded the opportunity to exercise his chosen right to testify in his own defence. The accused, having intimated that he elected to testify, should have been asked directly whether he still wanted to testify. The magistrate had been duty bound to assist the accused in exercising his right to testify. (At 450f and 451g.) J
2002 (2) SACR p448
Held, further, that the irregularity by the magistrate had been monumental and went to the very ethos of justice and notions of A fairness. The accused had been deprived of the opportunity to present his version. The irregularity had been so fundamental that it could be said that there was no trial at all. (At 452e - f.)
Annotations:
Cases cited
Reported cases
Hlantlalala and Others v Dyanti NO and Another 1999 (2) SACR 541 (SCA): applied B
Key v Attorney-General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC) (1996 (4) SA 187; 1996 (6) BCLR 788): dictum in para [13] applied C
R v Hepworth 1928 AD 265: dictum at 277 applied
R v Nyende 1956 (2) SA 55 (T): dictum at 56H applied
R v Shekelele and Another 1953 (1) SA 636 (T): dictum at 638 - 9 applied
S v Moodie 1961 (4) SA 752 (A): applied
S v Rall 1982 (1) SA 828 (A): dictum at 831G - H applied
S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO 1989 (3) SA 368 (E): dictum at 378C - D applied D
S v Sallem 1987 (4) SA 772 (A): dictum at 795A - C applied
S v Shikunga and Another 1997 (2) SACR 470 (NmS) (2000 (1) SA 616; 1997 (9) BCLR 1321): applied
S v Sigwahala 1967 (4) SA 566 (A): dictum at 568H applied
S v Smile and Another 1998 (1) SACR 688 (SCA) (1998 (5) BCLR 519): applied E
Case Information
Review. The facts appear from the reasons for judgment.
Judgment
Webster J:
The accused was convicted in the Benoni magistrate's court of assault with the intention to do F grievous bodily harm, the particulars whereof being that on 2 December 2001 the accused assaulted one 'Johannes Mokeni by hitting him with a fist, kicking him with booted feed (sic) and hitting him against a tree stem, giving to him there and then certain wounds and injuries'. The accused was sentenced to nine months' imprisonment with five months thereof being suspended for five years on G condition that the accused is not convicted of assault committed during the period of suspension. The matter came before me by way of automatic review.
Upon perusing the record I ordered the immediate release of the accused. The reasons therefor are set out in this judgment. H
The accused was unrepresented in the trial. He pleaded not guilty to the charges and alleged in amplification thereof, in accordance with the provisions of s 115 of the Criminal Procedure Act 51 of 1977, that he did not 'hit' the complainant.
The State then called the complainant to testify. His evidence was that he and his wife were at the residence of the brother-in-law of the I accused. From the record it appears that this is a place where liquor is either sold or consumed, in short, a...
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