S v Nqula

JurisdictionSouth Africa
JudgeEksteen J and Kannemeyer J
Judgment Date17 August 1973
Citation1974 (1) SA 801 (E)
Hearing Date17 August 1973
CourtEastern Cape Division

Eksteen, J.:

This matter comes before us on review and is supported by affidavits by the applicant and her attorney, to which replying affidavits have also been filed.

F From the applicant's affidavit it appears that she was arraigned before a regional court at Queenstown on 19th October, 1972, on a charge of culpable homicide arising out of a motor accident, and also on a second charge of driving the motor vehicle without a licence. She was convicted on the first G count and sentenced to a fine of R250 or 125 days and a further six months' imprisonment conditionally suspended for three years, and she was also prohibited from ever obtaining a driver's licence. On the second count she was sentenced to a fine of R50 or 25 days' imprisonment.

She then goes on to set out in some detail the circumstances of her trial and conviction. She says that on being charged with H these offences she consulted and retained an attorney, Mr. Beukes, of Queenstown, and requested him to appear for her at her trial. She apparently made all the necessary arrangements and consulted with Mr. Beukes prior to the trial. On the morning of the trial, i.e. on 19th October, she says she went to the offices of her attorney only to discover that he was not in Queenstown but had gone to Durban by plane (apparently his own private plane) and that he had been prevented from returning from

Eksteen J

Durban on account of the inclement weather prevailing at the time. She says that she was informed at his office that he hoped to be available later in the day. She thereupon proceeded to the court where she met the prosecutor and spoke to him, and A the prosecutor, she says, told her that she would be given two hours to find another attorney to appear for her. This allegation is denied by the prosecutor in his affidavit, but to my mind it does not seem to be particularly relevant to the ultimate issue and there is no need to resolve the dispute that exists on this point. The applicant says she was eventually called into court and advised by the magistrate to find another B attorney to conduct her case. She says she did consult another attorney but he could not take her case as he stated that it was too late for him to consult and apprise himself fully of the merits of the case and that he was, therefore, not in any position to conduct her defence for her. She, therefore, returned to court at about 2 o'clock that afternoon and was C informed by the court that the absence of her attorney, Mr. Beukes, afforded no ground for a postponement of the trial and the magistrate insisted that she plead as the court was going to proceed with the case whether she had an attorney or not. She says she got "bewildered" as a result of this attitude of the court as she was not responsible for her attorney's absence, nor was her attorney to her mind at fault in not being D there. She says she was also disconcerted by the attitude of the magistrate which appeared to her to be hostile. He appeared to her to be agitated by the fact that she did not want to plead. Under the pressure of these circumstances she says she pleaded guilty and made no defence.

She is borne out to a certain extent by the record of the E proceedings which were taken down mechanically and which read as follows:

"aanklaer stel die eerste klagte.

Accused:

I have an attorney but the attorney is not present."

The court then is reflected as having said to her:

"Yes, but now you indicated that this morning and the court said the case would stand down until 11 o'clock. You have now had another two hours, rather more than that. It is now F half-past two and the court told you that you must make arrangements by the time your case is called. What arrangements have you made? - I went to the attorney's office and I was told that he was delayed by heavy rains in Bloemfontein."

The magistrate thereupon rejoins:

"Yes, well, unfortunately he should not have been in Bloemfontein on the day when he had cases in Queenstown. This court has come all the way from East London to try the cases G and in that case the court now orders that the case must proceed."

Thereupon the accused pleaded guilty to culpable homicide and also to the second charge of driving without a licence. She is also supported in her allegations by her attorney, Mr. Beukes, who says on affidavit that he had been briefed and retained by the applicant to appear on her behalf at the trial and that on H the day prior to the trial, i.e. on Wednesday, 18th October, he telephoned the prosecutor of the regional court at Queenstown from Durban that he had flown to Durban by light plane and informed him that according to the meteorological office the weather which was inclement would remain unchanged the next day and it was therefore unlikely that he would be able to attend the trial on 19th October. He says that the prosecutor informed him that he fully understood his position and that, if necessary, the matter would be postponed to the Friday morning, and that, if by then he was still weatherbound

Eksteen J

in Durban, the matter could be postponed to a date to be arranged. He says that at no stage did the prosecutor indicate that the matter would proceed in his absence if he were unable to attend the court.

The prosecutor, in his replying affidavit, contests this version of the discussion. He concedes that Mr. Beukes phoned A him on the evening of Wednesday the 18th and informed him that he was in...

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14 practice notes
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...E at 796C; S v Shabangu (supra at 558F-H); S v Radebe (supra at 196D-I); S v Mabaso (supra) S v Davids (supra at 182D-F); S v Mpula 1974 (1) SA 801 (E) at 804E-F; S v Baxter 1990 (2) SACR 109 (T). Logically, the relationship between such representation and the fairness of the proceedings sh......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...at 796C; S v Shabangu (supra at 558F-H); S v Radebe (supra at 196D-I); S v Mabaso (supra); S v Davids (supra at B 182D-F); S v Mpula 1974 (1) SA 801 (E) at 804E-F; S v Baxter 1990 (2) SACR 109 (T). Logically, the relationship between such representation and the fairness of the proceedings s......
  • S v Mabaso and Another
    • South Africa
    • Invalid date
    ...rather than a right to demand legal representation (S v Wessels 1966 (4) SA 89 (C); S v Blooms 1966 (4) SA 417 (C); S v Ngula 1974 (1) SA 801 (E); S v Mkize 1978 (3) SA 1065 (T); S v Baloyi 1978 (3) SA 290 (T)...). The courts have not insisted that judicial officers inform unrepresented acc......
  • S v Davids; S v Dladla
    • South Africa
    • Invalid date
    ...- 98B); S v Blooms 1966 (4) SA 417 (C) (at 421C); Ndanozonke and Another v Nel NO and Another 1971 (3) SA 217 (E) (at 221H); S v Nqula 1974 (1) SA 801 (E) (at 807D - F); and S v Shabangu 1976 (3) SA 555 (A) (at 558F). Representation, or the chance to arrange for some, had not been allowed i......
  • Request a trial to view additional results
14 cases
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...E at 796C; S v Shabangu (supra at 558F-H); S v Radebe (supra at 196D-I); S v Mabaso (supra) S v Davids (supra at 182D-F); S v Mpula 1974 (1) SA 801 (E) at 804E-F; S v Baxter 1990 (2) SACR 109 (T). Logically, the relationship between such representation and the fairness of the proceedings sh......
  • S v Rudman and Another; S v Mthwana
    • South Africa
    • Invalid date
    ...at 796C; S v Shabangu (supra at 558F-H); S v Radebe (supra at 196D-I); S v Mabaso (supra); S v Davids (supra at B 182D-F); S v Mpula 1974 (1) SA 801 (E) at 804E-F; S v Baxter 1990 (2) SACR 109 (T). Logically, the relationship between such representation and the fairness of the proceedings s......
  • S v Mabaso and Another
    • South Africa
    • Invalid date
    ...rather than a right to demand legal representation (S v Wessels 1966 (4) SA 89 (C); S v Blooms 1966 (4) SA 417 (C); S v Ngula 1974 (1) SA 801 (E); S v Mkize 1978 (3) SA 1065 (T); S v Baloyi 1978 (3) SA 290 (T)...). The courts have not insisted that judicial officers inform unrepresented acc......
  • S v Davids; S v Dladla
    • South Africa
    • Invalid date
    ...- 98B); S v Blooms 1966 (4) SA 417 (C) (at 421C); Ndanozonke and Another v Nel NO and Another 1971 (3) SA 217 (E) (at 221H); S v Nqula 1974 (1) SA 801 (E) (at 807D - F); and S v Shabangu 1976 (3) SA 555 (A) (at 558F). Representation, or the chance to arrange for some, had not been allowed i......
  • Request a trial to view additional results

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