S v Ndlovu; S v Sibisi

• Jurisdiction: South Africa
• Judgment Date: 18 February 2005
• Citation: 2005 (2) SACR 645 (W)

S v Ndlovu;
S v Sibisi
2005 (2) SACR 645 (W)

2005 (2) SACR p645

Citation	2005 (2) SACR 645 (W)
Case No	A98/03 and A1167/02
Court	Witwatersrand Local Division
Judge	Kriegler AJ, Kuny AJ and Whiting AJ
Heard	July 27, 2004
Judgment	February 18, 2005
Counsel	W A Karam for the appellants.; M J Steyn for the State.

Flynote : Sleutelwoorde B

Trial — The accused — Legal representation of — Unrepresented accused — Duty of presiding officer in explaining accused's right to legal representation — Accused to be informed promptly of right to legal representation in accordance with provisions of s 35(3)(f) and (g) of Constitution of the Republic of South Africa, 1996, and s 73(2A) of Criminal Procedure Act C 51 of 1977 — In addition, accused in special circumstances entitled to be given further information as reasonably required to enable him to make sufficiently informed decision whether to seek legal representation — For example, where charged with offence for which sentence of life imprisonment possible, accused to be informed of serious nature of charge and of possible D penalty — Not essential to inform of possibility of substantial prison sentence where accused can reasonably be expected to be aware of fact — Essential to be informed of presumptive minimum sentence only if such information can reasonably be expected to affect accused's decision whether or not to seek legal representation — Desirable, although not essential, to inform accused of prescribed sentence where charge a serious one. E

Trial — The accused — Legal representation of — Unrepresented accused — Duty of presiding officer in explaining accused's right to legal representation — Accused to be allowed reasonable opportunity to make decision whether to seek legal representation, as well as reasonable time to obtain legal F representation — Where accused's application for legal aid refused, essential that court enquire whether 'substantial injustice' would result if accused remained unrepresented — Particularly where charge a serious one, desirable that accused be encouraged to obtain legal representation and, if he declined, that he be asked to explain why he chose not to do so — Where accused unrepresented by choice, save in exceptional circumstances, mere failure of presiding G officer to take one or more of further steps, not basis for vitiating subsequent proceedings.

Headnote : Kopnota

Upon objection on behalf of the appellants that, further to the standard basic explanation provided them of their rights to legal representation, in accordance with the provisions of s 35(3)(f) and (g) of the Constitution of the Republic of South H Africa, 1996, and s 73(2A) of the Criminal Procedure Act 51 of 1977, they had not been informed of the minimum sentences they prospectively faced, nor had they been encouraged to seek legal representation, nor had they been asked why they declined to seek legal representation, the appeal Court considered the ambit of the presiding officer's duty to inform an accused, and the ambit of the accused's right to be I informed, of his rights to legal representation.

Held, that it was an essential step that an accused be promptly informed of his or her rights in regard to legal representation, substantially in accordance with the provisions of s 35(3)(f) and (g) of the Constitution and s 73(2A) of the Criminal Procedure Act. Where the failure to provide that standard basic J

2005 (2) SACR p646

explanation had the effect of depriving the accused of legal representation, the proceedings would be vitiated by A fundamental irregularity. (At 654b - c.)

Held, further, that in special circumstances, it was essential that an accused be given such information further to the standard basic explanation, namely, information as to the seriousness of the charge and as to the applicable minimum sentence, if that information were reasonably required to enable the accused to make a sufficiently informed decision regarding whether to seek legal representation. Special circumstances existed, for example, where an B accused was tried in the regional magistrate's court for an offence which carried a prospective life imprisonment. (At 654d - e.)

Held, further, that the provision of further information would only be essential to the extent that it was reasonably required to enable the accused to make a sufficiently informed decision on legal representation. It would thus not be essential to inform the accused that he was facing the possibility of a substantial prison sentence if C he could reasonably be expected to be aware of it. Furthermore, it would only be essential to inform him of the presumptive minimum sentence if possession of this further information could reasonably be expected to affect his decision on whether or not to seek legal representation. Even where it was not essential to inform the accused of the prescribed sentence, it remained desirable whenever the charge was a serious one. (At 654f - h and D 655b.)

Held, further, that an accused had to be afforded a reasonable time within which to obtain legal representation and a reasonable opportunity to make up his mind whether to seek legal representation. Where an accused's application for legal representation to the Legal Aid Board had been unsuccessful, it was essential that the presiding officer determine whether 'substantial injustice' would result if the accused were not provided E with legal representation at State expense. (At 655c - f.)

Held, further, particularly where an accused was facing a serious charge, that it was desirable that he be encouraged to obtain legal representation and, if he persisted in declining to do so, that he be asked why he declined. A presiding officer should, F however, be careful to respect the right of an accused to choose to conduct his own defence. Although it would be sound practice for the presiding officer to take the mentioned steps, it should not be considered essential, save possibly in exceptional circumstances. Mere failure by the presiding officer to take one or more of the further desirable steps would not, save in exceptional circumstances, vitiate the subsequent proceedings at which the accused was unrepresented by choice. (At 655f - i.) G

Annotations:

Cases cited

Reported Cases

Mgcina v Regional Magistrate, Lenasia, and Another 1997 (2) SACR 711 (W): referred to H

S v Bull and Another; S v Chavulla and Others 2001 (2) SACR 681 (SCA) (2002 (1) SA 535; 2002 (6) BCLR 551): referred to

S v Dickson 2000 (2) SACR 304 (C): referred to

S v Khuzwayo 2002 (1) SACR 24 (NC): referred to

S v Mabaso and Another 1990 (3) SA 185 (A): referred to I

S v Manale 2000 (2) SACR 666 (NC): compared

S v Mbambo 1999 (2) SACR 421 (W): referred to

S v Mkhondo 2001 (1) SACR 49 (W): referred to

S v Mnguni 2002 (1) SACR 294 (T): not followed

S v Moos 1998 (1) SACR 372 (C): referred to

S v Ndlovu 2004 (2) SACR 70 (W): not followed J

2005 (2) SACR p647

S v Nkondo 2000 (1) SACR 358 (W): referred to A

S v Nyanga and Others and Eight Similar Cases 1990 (2) SACR 547 (Ck): not followed

S v Radebe; S v Mbonani 1988 (1) SA 191 (T): referred to

S v Rapoo en Andere 1999 (2) SACR 217 (T): referred to

S v Rudman and Another; S v Mthwana 1992 (1) SACR 70 (A) (1992 (1) SA 343): referred to B

S v Sibiya 2004 (2) SACR 82 (W): not followed

S v Tshidiso 2002 (1) SACR 207 (W): compared

S v Visser 2001 (1) SACR 401 (C): referred to.

Unreported Cases

S v Magagula (WLD case No A162/02): not followed

S v Makhandela (WLD case No A198/02): referred to. C

Legislation cited

Statutes

The Constitution of the Republic of South Africa, 1996, s 35(3)(f) and (g): see Juta's Statutes of South Africa 2004/5 vol 5 at 1-140

The Criminal Procedure Act 51 of 1977, s 73(2A): see Juta's Statutes of South Africa 2004/5 vol 1 at 1-341. D

Case Information

Appeals against convictions and sentences in the magistrate's court. The facts appear from the judgment of the Court.

W A Karam for the appellants.

M J Steyn for the State. E

Cur adv vult.

Postea (February 18).

Judgment

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

2005 (2) SACR p648

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...