S v Nkosi

• Jurisdiction: South Africa
• Judge: Seriti J and Legodi J
• Judgment Date: 10 September 2009
• Docket Number: 104/09
• Court: North Gauteng High Court, Pretoria
• Hearing Date: 10 September 2009
• Citation: 2010 (1) SACR 60 (GNP)

Legodi J:

This matter was laid before me on automatic review in respect of accused 1 who was found guilty of attempted theft of gold ore at E Consort Mine, Barberton. He appeared on this charge together with another accused who was represented by an attorney from the Legal Aid Board.

Initially the attorney represented both accused 1 and the other accused, F but withdrew as attorney for accused 1 at the start of the hearing of the matter.

The two accused were found guilty as charged on the main charge of theft and subsequently the unrepresented accused 1 was sentenced to two years' imprisonment, one of which was suspended on appropriate conditions. G

When this matter was initially laid before me, I raised the issue as follows with the Director of Public Prosecutions (DPP).

'The office of the Director of Public Prosecutions is requested to H comment on whether the accused had properly pleaded to the charge and if not, whether such omission vitiated the proceedings?

Whether the accused was not entitled to another legal representative from the Legal Aid Board after the first attorney withdrew as his attorney? And if the accused was entitled to another legal representative, whether failure to afford the accused the opportunity to get I another legal representative did not render the trial unfair?

The Director of Public Prosecutions is also requested to comment on the merits of the case and the appropriateness of the sentence imposed.'

In response to the issues raised, Senior State Advocate, A Coetzee, with DF de Beer SC agreeing, held the view that, firstly, accused 1 should J

Legodi J

A have been afforded the opportunity to get another legal representative from the Legal Aid Board, and that failure to do so had vitiated the proceedings.

Secondly, on whether accused 1 pleaded to the charge or not, the view is that it is doubtful whether accused 1 had properly pleaded to the B charge.

Lastly, on the merits, the view held is that accused 1's version might be reasonably possibly true, that he did not know that his actions were unlawful.

C Starting with the latter submission, accused 1 was also charged with an alternative charge of contravention of s 98 of Act 29 of 1996, the Mine Health and Safety Act, the allegations being that he intentionally and unlawfully entered a mine or works or any shaft or place, or building where an alinery has been erected. The accused's version was that he had been looking for a job for some time. He approached one Andries, that, D should he hear about any job, Andries should inform accused 1. Andries, who was apparently one of the four accused, told him about this job at the mine. He went to the mine in question with Andries and other accused on the understanding...