S v Mofokeng

• Jurisdiction: South Africa

S v Mofokeng
2004 (1) SACR 349 (W)

2004 (1) SACR p349

Citation	2004 (1) SACR 349 (W)
Case No	A1024/2001
Court	Witwatersrand Local Division
Judge	Louw AJ and Gudelsky AJ
Heard	July 9, 2003
Judgment	July 9, 2003

Flynote : Sleutelwoorde

Fundamental rights — Right G to a fair H trial — Right to legal representation — Right not ending when trial court pronounces its sentence — Sentenced person entitled to challenge decision of court in review proceedings or by way of appeal — Right to legal representation exists during whole legal process until last court has spoken last word.

Fundamental rights — Right to a fair I trial — Right to legal representation — Adequacy of — Right to legal representation cannot be right to anything but effective legal representation.

Legal practitioners — Duties of — Counsel mandated to argue appeal — Counsel, in head of argument, conceding conviction and sentence correct — In absence of any indication that appellant had withdrawn J

2004 (1) SACR p350

appeal or instructed counsel to concede correctness of two essential findings of court below, counsel A breached duty of loyalty — Counsel obliged to withdraw from case if he felt he couldn't advance appellant's case on appeal — Appellant could then appear at hearing of appeal or seek other legal representation — To allow matter to proceed in absence of appellant or legal representative who put forward B submissions on his behalf would render hearing on appeal a nonsense — Should counsel have persisted along lines of his heads of argument, he would have compounded breach of loyalty to appellant — Should he argue opposite, he would probably find deaf judicial ear — Appeal tainted to such extent that appellant would probably not receive fair hearing through lips of his advocate.

Legal practitioners — Duties C of — Duty to represent interests of client — Within four corners of ethics which bind each defence advocate, counsel not free to make submissions designed to destroy client's case or which can have that effect — Counsel in control of presentation of defence case and can otherwise bind client through vicarious admissions but where she or he, to knowledge of court, refutes client's instructions, D she or he fails to act as representative — Counsel also not Judge — She or he not having, nor should have, distance to adjudicate on strength and weaknesses of client's cause — Counsel to advise client on probable findings of court but has to fearlessly argue client's case even if she or he doesn't believe case right or just — Whilst counsel an E officer of court, she or he is representative of litigant and doesn't have luxury to distance herself or himself from client's instructions and condemn client by making fatal concessions — Counsel's duty to carry out mandate and to take all reasonable steps to accomplish that aim — If counsel does not do so, she or he is no representative.

Headnote : Kopnota

The appellant's counsel had filed heads in argument in which he F set out the facts and then submitted that the appellant was correctly convicted and that the sentence imposed was appropriate.

Held, that the right to legal representation did not end when the trial court pronounced its sentence. The sentenced person was entitled to challenge the decision of the court in review proceedings G or by way of an appeal. The right to legal representation existed during the whole of the legal process until the last court had spoken the last word. (Paragraph [17] at 355f - g.)

Held, further, that the right to legal representation could not be a right to anything but effective legal representation. (Paragraph [18] at 355h.)

Held, further, that, in the absence of any indication that the appellant had withdrawn the appeal or had instructed his counsel to H concede the correctness of the two essential findings of the court below, counsel had breached his duty of loyalty. Counsel had been obliged to withdraw from the case if he felt that he could not advance the appellant's case on appeal. The appellant could then, himself, have appeared at the hearing of the appeal or he could have sought other legal representation. To allow the matter to proceed in the I absence of the appellant or a legal representative who could put forward submissions on his behalf would have rendered the hearing on appeal a nonsense. Should the appellant's counsel have persisted along the lines of his heads of argument, he would have compounded his breach of loyalty to the appellant. Should he have argued the opposite of what he contended for in his heads, he would probably have found a deaf judicial ear. The appeal was tainted to such an extent that the appellant J

2004 (1) SACR p351

would probably not receive a fair hearing through the lips of A his advocate. (Paragraph [19] at 356b - f.)

Held, further, that, within the four corners of the ethics which bound each defence advocate, counsel was not free to make submissions designed to destroy her or his client's case, or which could have that effect. She or he was in control of the presentation of the defence case and could otherwise bind the client through vicarious admissions but where she or he, to the knowledge of the court, refuted B the client's instructions, she or he failed to act as a representative. (Paragraph [23] at 357f - g.)

Held, further, that counsel was also not the Judge. She or he did not have, nor should have, the distance to adjudicate on the strength and weaknesses of her or his client's cause. She or he had to C advise the client on the probable findings of the court but had fearlessly to argue the client's case even if she or he did not believe that the case was right or just. Whilst she or he was an officer of the court, counsel was a representative of a litigant and did not have the luxury to distance herself or himself from the client's instructions and to condemn the client by making fatal concessions. In the final analysis, she or he was but a representative of the client, a mandatary. It was counsel's duty to carry out the D mandate and to take all reasonable steps to accomplish that aim. She or he had to perform her or his obligations in accordance with the terms and limitations of the mandate. If counsel did not do so, she or he was no representative. (Paragraph [24] at 357g - i.)

Held, further, that, in the present case, counsel did not intend to perform his mandate and there was no reason to defer to the decisions of counsel which were found in the heads of argument relating E to the conduct of the appeal. There was in fact no reasonable prospect that the appellant would receive a fair hearing unless he had the opportunity to address the Court himself or if he or the Court appointed other counsel to act on his behalf. Accordingly, the appeal was postponed and the local Society of Advocates requested to appoint a member as amicus curiae to act for the appellant. (Paragraphs [29], [30] and [34] at 358h - i and 359j - 360c.) F

Annotations:

Cases cited

Reported cases

Burger v Kemp 483 US 776 (1987): dictum at 800 applied

Chambers v Mississippi 410 US 284 (1973): dictum at 294 applied

Dlamini v Minister of Law and Order and Another 1986 (4) SA 342 (D): referred to G

Du Plessis and Others v De Klerk and Another 1996 (3) SA 850 (CC) (1996 (5) BCLR 658): referred to

Ebrahim v Van Rooyen NO and Another 1917 CPD 296: considered

Imbrioscia v Switzerland (1993) 17 EHRR 441 ([1993] IIRHL 100): referred to H

John v Rees; Martin v Davis; Rees v John [1970] Ch 345 ([1969] 2 All ER 274): dictum at 402 (Ch) and 309E - G (All ER) applied

Kamasinski v Austria (1989) 13 EHRR 391: referred to

R v Matonsi 1958 (2) SA 450 (A): referred to

S v Bennett 1994 (1) SACR 392 (C): referred to

S v Charles 2002 (2) SACR 492 (E): applied I

S v Halgryn 2002 (2) SACR 211 (SCA) ([2002] 4 All SA 157): applied

S v Memani 1993 (2) SACR 680 (W) (1994 (1) SA 515): considered

S v Ntuli 2003 (1) SACR 613 (W) (2003 (4) SA 258): referred to

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): referred to

Strickland v Washington 466 US 668 (1984): distinguished. J

2004 (1) SACR p352

Case Information

Appeal from a decision in a magistrate's court. Before the A Court considered the merits of the appeal, the Court considered the merits of the representation afforded to the appellant. The facts appear from the reasons for judgment.

Judgment

Louw AJ:

[1] The appellant was charged in the regional division of B Southern Transvaal with the crime of robbery with aggravating circumstances, the aggravating circumstances being the use of a knife. The trial was held at Germiston. The incident occurred on 3 October 1999.

[2] The appellant first appeared in court on 5 October 1999 and the case was from time to time postponed. The appellant has been in C custody from 4 October 1999.

[3] On 10 January 2000 the appellant pleaded not guilty and on the same day he was found to be guilty and sentenced to eight years' imprisonment. On 13 July 2001 the appellant applied for leave to appeal against both his conviction and the imposed sentence. D On 9 April 2003 the regional court magistrate who had presided at the trial granted the appellant leave to appeal. The reason for the time lag does not appear from the papers before me.

[4] The appellant did not deny that he was at the scene where and when the robbery occurred. It was common cause that an unknown E person (referred to by the appellant in his evidence as 'Vusi') accosted the complainant and threatened her with a knife he had with him. He removed the complainant's purse from her handbag. A scuffle ensued and the purse fell to the ground. It is at this point where the essential factual dispute between the complainant and the appellant F arose. According to the complainant the appellant picked the...