S v Ndlovu; S v Sibisi

• Jurisdiction: South Africa
• Judge: Kriegler AJ, Kuny AJ and Whiting AJ
• Judgment Date: 18 February 2005
• Citation: 2005 (2) SACR 645 (W)
• Docket Number: A98/03 and A1167/02
• Hearing Date: 27 July 2004
• Counsel: W A Karam for the appellants. M J Steyn for the State.
• Court: Witwatersrand Local Division

Kriegler AJ, Kuny AJ et Whiting AJ:

This judgment is concerned with two appeals from trials in the regional court in F which the appellants were not legally represented. The appeals are S v Ndlovu and S v Sibisi, which were both set down for hearing in this Division in the earlier part of last year. Both appeals raised an important question concerning legal representation on which there had been conflicting decisions. Both were postponed so that they could be heard by a Full Bench. Hence the present hearing. It is convenient to deal first with the question concerning legal representation. G

In the Ndlovu case, the appellant stood trial as accused 1 in the regional court in Wynberg with a co-accused who was acquitted at the end of the State case. He faced three charges, count 1 being of robbery with aggravating circumstances. The charge-sheet alleged that, on or about 26 March 2001, he robbed the complainant of her BMW H motor car and its contents. It spoke of robbery with aggravating circumstances as contemplated in s 1 of Act 51 of 1977, read with ss 51 and 52 of Act 105 of 1997, and went on to allege that aggravating circumstances were present, inter alia, in that the accused or an accomplice handled a firearm or dangerous weapon. The I remaining two charges were of unlawful possession of a firearm and ammunition (counts 2 and 3), pertaining to the pistol and its ammunition allegedly used in the robbery. On 12 November 2001 the appellant pleaded not guilty on all three charges. On 21 November 2001 he was, however, found guilty as charged. On J

Kriegler AJ, Kuny AJ et Whiting AJ

27 November 2001, he was sentenced to 15 years' imprisonment on count 1, three A years' imprisonment on count 2 and three months' imprisonment on count 3. The effective period of imprisonment was thus 18 years and three months. It was accepted that the appellant was only 18 years old at the time of the offence and his trial. His appeal is against conviction and sentence on all counts.

The record of the proceedings on 29 March 2001 states: B

'Verduidelik art 73(1) Wet 51/1977. Regsverdediging/Regshulp.

Besk 1 en 2 dui aan dat hulle verstaan. Besk 1 en 2 verkies om hulle eie verdediging te behartig.'

Thereafter, on 30 May 2001, it was again recorded that the appellant would conduct his own defence. An attorney who had been C appointed to appear for his co-accused later withdrew. Eventually, on 12 November 2001, the appellant once more indicated, in response to an enquiry by the presiding magistrate, that he would conduct his own defence. His co-accused said that, having made several unsuccessful applications for legal assistance, she, too, would conduct her own defence. Immediately thereafter, they both pleaded not guilty and the D trial commenced.

In the Sibisi case, the appellant was the sole accused. It appears he was about 30 years old at the time of the trial. He faced a total (including alternatives) of 12 charges, on all of which he pleaded not guilty on 25 January 2002. Five of these charges are of particular relevance, namely, counts 1, 5, 8, 9 and 10. On count 1, E the charge-sheet spoke of the charge as being robbery with aggravating circumstances as intended in s 1 of Act 51 of 1977, read with the provisions of s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997. It alleged that, on or about 14 July 2000, he robbed the complainant of his BMW motor car, aggravating circumstance being that a firearm was used. Count 5 was another count of robbery with F aggravating circumstances and included the same statutory references. It alleged that, on or about 15 July 2000, he robbed a different complainant of his Volkswagen Microbus, aggravating circumstances being that a firearm was used. Count 10 was yet another count of robbery. The charge-sheet spoke of the charge as being robbery, read with the G provisions of s 51(2)(a) of the Criminal Law Amendment Act 105 of 1997. It alleged that, on or about 15 July 2000, he robbed a further complainant of his Toyota Corolla motor car. Counts 8 and 9 were charges of unlawful possession of a firearm and ammunition, respectively, pertaining to the pistol and its ammunition which he H allegedly used. On 7 March 2002, the appellant was found guilty as charged on counts 1, 8, 9 and 10, while, on count 5, he was found guilty of attempted robbery with aggravating circumstances. He was acquitted on all the other counts, including one of attempted murder. On the same day, he was sentenced on count 1 to 20 years' imprisonment; on count 5 to ten years' imprisonment; on counts 8 and I 9, taken together for purposes of sentence, to three years' imprisonment; and on count 10 to 20 years' imprisonment. The effective period of imprisonment was thus 53 years. The appeal is against conviction and sentence on all counts.

The record of the proceedings on 17 July 2000 states: J

Kriegler AJ, Kuny AJ et Whiting AJ

'Accused's rights explained in respect of legal representation, Legal Aid Board and bail - accused elects to conduct own case.' A

However, on 6 November 2000, it was recorded that 'accused now informs the court that he wants a legal representative'. The following day, it was recorded that the 'accused now has legal representative', Ms Croucamp. Thereafter, there was some delay, it B being alleged that the appellant was in hospital. On 12 March 2001, it is recorded that 'Ms Croucamp wishes to withdraw at this stage' and that she was excused. Eventually, on 4 January 2002, it was noted that 'accused confirms - he now wishes to conduct his own case'. Eleven days later, the appellant pleaded not guilty and the trial proceeded, apparently without any further mention being made of legal representation. C

Section 35(3) of the Constitution of the Republic of South Africa, 1996 provides:

'Every accused person has a right to a fair trial, which includes the right -

. . .

(f)

to choose, and be represented by, a legal practitioner, and to be informed of this right promptly; D

(g)

to have a legal practitioner assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.'

The relevant parts of s 73 of the Criminal Procedure Act 51 of 1977 (as amended by Act 86 of 1996) provide: E

'(1) An accused who is arrested, whether with or without warrant, shall, subject to any law relating to the management of prisons, be entitled to the assistance of his legal adviser as from the time of his arrest.

(2) An accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any law prohibited from appearing at the proceedings in question. F

(2A) Every accused shall -

(a)

at the time of his or her arrest;

(b)

when he or she is served with a summons in terms of s 54;

(c)

when a written notice is handed to him or her in terms of s 56;

(d)

when an indictment is served on him or her in terms of s 144(4)(a) G

(e)

at his or her first appearance in court,

be informed of his or her right to be represented at his or her own expense by a legal adviser of his or her own choice and if he or she cannot afford legal representation, that he or she may apply for legal aid and of the institutions which he or she may approach for legal assistance.' H

In both Ndlovu and Sibisi, the record indicates, albeit in rather condensed form, that the presiding magistrate did explain to the accused at their first appearance their rights in respect of legal representation and legal aid, and that each responded by stating that he wished to conduct his own defence. One is left to assume - and no allegation to the contrary was made by the appellants - that, in accordance with usual I practice, the explanation of legal aid involved bringing to the notice of each accused that, if he could not afford to pay for a legal representative, he could apply to the Legal Aid Board to have one assigned to him at State expense. However, it is contended on behalf of the appellants that the magistrate should have done more than this. In particular, it is J

Kriegler AJ, Kuny AJ et Whiting AJ

contended that, in each case, the magistrate should have taken the following three further steps: A

(1)

He should have explained to the accused the seriousness of the charge or charges he was facing, and that, in terms of the provisions of Act 105 of 1997, he was facing a presumptive minimum sentence of 15 years' imprisonment if convicted of robbery with aggravating circumstances or robbery involving the taking of a motor vehicle. B

(2)

He should have encouraged the accused to exercise his rights to legal representation.

(3)

When the accused elected to conduct his own defence, the magistrate should have asked him why he wished to do so, and, if it then appeared that the accused was under some misapprehension, the magistrate should have corrected it. C

It was further contended on behalf of the appellants:

(1)

That the failure of the presiding magistrates to take the abovementioned three...