S v Nqoko

• Jurisdiction: South Africa
• Judge: Didcott J
• Judgment Date: 21 June 1990
• Citation: 1990 (2) SACR 257 (N)
• Hearing Date: 05 February 1990
• Counsel: Mrs J S Moodley for the accused at the request of the Court D A Paver for the State
• Court: Natal Provincial Division

Didcott J:

This case is one of a batch that was argued simultaneously before us, having come here on automatic review and having been referred to a Full Bench for decision on a point common to the lot. The point was the effect on each criminal trial of the failure by the magistrate to have informed the person tried, who was not legally represented, of his H right to be.

The replies given to the review queries in a number of the matters show confusion in some magisterial circles about the occasions and circumstances which call for such information to be furnished and the amount of it that is then necessary. I had better therefore set out what I understand to be the present state of the law on the subject, in Natal at any rate.

I No fewer than eight judgments dealing to greater or lesser extent with the topic have been reported during the past couple of years. The cases, all decided by Full Benches of the Divisions hearing them and four by Full Benches sitting in this Province, were S v Radebe; S v Mbonani 1988 (1) SA 191 (T); S v Khanyile and Another 1988 (3) SA 795 (N); S v Morrison 1988 (4) SA 164 (T); S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another 1989 (3) SA 368 (E); Nakani v Attorney-General, J Ciskei, and Another 1989 (3)

Didcott J

A SA 655 (Ck); S v Davids; S v Dladla 1989 (4) SA 172 (N); S v Mthwana 1989 (4) SA 361 (N) and S v Mathebula 1990 (1) SACR 20 (N). To the list I add the fifth judgment in point to have been given here by a Full Bench, an unreported one delivered some nine months ago in seven more matters of which the first named in its heading was S v Mkhize.

The rule emerging from this line of decisions, as I read them, is the B following. Every person accused of a crime who has no lawyer acting already for him must be told by the judicial officer trying the case of his right to legal representation and of the quarters from which he may seek it free of charge if he cannot afford to pay. This should be done at the outset and preferably before he pleads. He must then be allowed an adequate opportunity to obtain representation in one way or another, C unless he intimates that he does not want it, preferring to defend himself. Non-compliance with these requirements may result in the vitiation of the trial on review or appeal. Whether that happens in any given case depends, however, on its circumstances. For the test is whether, in the light of them all, non-compliance appears to have jeopardised the person tried and thus to have brought about a failure of justice. Some of the judgments which I have cited took the view that D non-compliance did not amount per se to an irregularity, that its rating as such or its dismissal as a merely regrettable flaw was dependent on the facts of the matter, together with its effect on the outcome should it indeed be adjudged an irregularity. Others saw it as an irregularity per se, but not one that inevitably wrecked the trial, the facts determining whether it did. Quite how the same basic idea gets expressed seems to make no real difference in the end. What counts, after all, is E not so much the characterisation of the defect in the proceedings as the damage, if any, thus done to them. In that regard the Nakani judgment went further than any other, if I construe it correctly, holding (at 664B-C) that a mistrial always ensued from non-compliance, irrespective of the circumstances. But no local decision has yet followed suit.

Answering the review queries in a couple of the matters which we have F before us, the magistrates referred to S v Mthetwa; S v Khanyile 1978 (2) SA 773 (N) and S v Mashiyana 1989 (1) SA 592 (C) as authorities for the proposition that it had not been encumbent on them to enquire whether legal representation was wanted or to say anything about the right to it. The two judgments contain, to be sure, passages to that effect. The Mthetwa one rested on beliefs which are no longer cherished, G however, having been written a decade before the current of judicial thought began flowing in the opposite direction. Nor were the ripples felt when the case of Mashiyana got decided. The Radebe judgment was the only one in the latest series to have been reported at the time, and that had occurred but recently. No mention was made of it then, presumably because it had not yet come to the Court's attention. The present position in Natal, at all events, is clear. The passage in the H Mthetwa judgment on which reliance was placed has been overruled by the subsequent decisions of this...