S v Owies and Another

JurisdictionSouth Africa
Citation2009 (2) SACR 107 (C)

S v Owies and Another
2009 (2) SACR 107 (C)

2009 (2) SACR p107


Citation

2009 (2) SACR 107 (C)

Case No

A89/2006

Court

Cape Provincial Division

Judge

Motala J and Samela AJ

Heard

August 29, 2008

Judgment

September 30, 2008

Counsel

P Mihalik for the first appellant.
L Base for the second appellant.
AY Allchin for the State.

Flynote : Sleutelwoorde

Trial — Irregularity in — Magistrate failing to explain appellant's constitutional F right to legal representation — Failing to encourage appellant to seek representation after attorney's withdrawal — Right to legal representation of critical importance, being means by which many other fair trial rights exercised — Where accused persons facing serious charges, judicial officers to 'go the extra mile' to encourage them to opt for legal representation — Conviction and sentence set aside. G

Trial — Irregularity in — Presiding officer's questioning of witnesses — Presiding officer having right to question any witness at any stage of proceedings, purpose being to clear up uncertainty — However, in present matter magistrate taking over from prosecutor and cross-examining witnesses — In one instance questioning covering ten pages of record H — Magistrate descending into arena and assuming role of prosecutor — Seriously transgressing well-known and acceptable limits to questioning by presiding officer — Conviction and sentence set aside.

Headnote : Kopnota

The two appellants were convicted in a regional court of attempted robbery, murder and attempted murder. They were each sentenced to an effective 24 I years' imprisonment. It was contended on their behalf on appeal that the trial magistrate had committed certain irregularities that had rendered the trial unfair: he had failed to advise the first appellant of his right to legal representation after his attorney had withdrawn from the matter; he had not encouraged the first appellant to obtain alternative legal representation; and he had descended into the arena, questioning the witnesses excessively. J

2009 (2) SACR p108

A Held, that there was no indication on the record that the presiding magistrate had explained the first appellant's constitutional right to legal representation, or encouraged him to seek representation after his attorney's withdrawal. Neither had he explained to the appellant the seriousness of the offences and the likely punishment should he be found guilty. The right to legal representation was of critical importance as it was the means by which many B other fair trial rights were exercised. It also largely eliminated the need for a presiding officer to assist the unrepresented accused, which was an onerous duty. Where accused persons were facing serious charges, judicial officers should 'go the extra mile' to encourage them to opt for legal representation, rather than represent themselves. The courts had devised certain guidelines for presiding officers dealing with unrepresented accused, C and it was clear from the record that not all of these guidelines had been adhered to in casu. (Paragraphs [6]–[9] at 110e–112 g.)

Held, further, that it was trite that a presiding officer had the right to question any witness at any stage of the proceedings, the purpose being to clear up any uncertainty. However, in the present matter there were several examples where the magistrate had taken over from the prosecutor and D cross-examined the witnesses. This had happened even before cross-examination by the defence team, and in one instance his questioning covered ten pages of the record. The magistrate had certainly descended into the arena and assumed the role of prosecutor. He had seriously transgressed the well-known and acceptable limits to questioning by a presiding officer. (Paragraphs [10] and [11] at 112 g and 114d–f.)

E Held, further, that the magistrate's failure to explain the first appellant's right to legal representation, and to encourage him to obtain it, as well as his descent into the arena, had prejudiced the appellants in their trial, rendering it unfair. These irregularities were incapable of being condoned. (Paragraph [12] at 114f–i.)

F Appeals upheld. Convictions and sentences set aside.

Annotations:

Cases cited

Reported cases

R v Hepworth 1928 AD 265: dictum at 277 applied

S v Ambros 2005 (2) SACR 211 (C): dictum at 217 g - i applied G

S v Cornelius and Another 2008 (1) SACR 96 (C): referred to

S v Le Grange and Others 2009 (1) SACR 125 (SCA): referred to

S v Lukhandile 1999 (1) SACR 568 (C): referred to

S v Makhandela 2007 (2) SACR 620 (W): referred to

S v Manale 2000 (2) SACR 666 (NC): referred to

S v Mathabathe 2003 (2) SACR 28 (T): dictum at 33 d - e applied H

S v Mseleku and Others 2006 (2) SACR 237 (N): referred to

S v Ndou 2006 (2) SACR 497 (T): dictum at 499 g - 500c applied

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

S v Radebe; S v Mbonani 1988 (1) SA 191 (T): dictum at 196F - I applied

S v Rall 1982 (1) SA 828 (A): dictum at 831H - 832H applied

S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another 1989 I (3) SA 368 (E): referred to

S v Sikhipha 2006 (2) SACR 439 (SCA): referred to.

Case Information

Criminal appeal. The facts appear from the judgment of Samela AJ, in which Motala J concurred.

P Mihalik for the first appellant. J

2009 (2) SACR p109

L Base for the second appellant. A

AY Allchin for the State.

Cur adv vult.

Postea (September 30). B

Judgment

Samela AJ:

[1] The appellants appeared in the Bellville regional court on three charges, namely, robbery, murder and attempted murder. The allegations against both appellants, on count 1, were that on 7 October 2000 C at or near Bobway Street, Eerste River, within the regional division of the Western Cape, the appellants, both adult males, wrongfully and intentionally assaulted one David Braaf by ripping his shoes off his feet and simultaneously, with the use of force, took one pair of shoes into their possession; on count two the allegations were that both appellants, on D the same day and at the same place, within the court's jurisdiction, wrongfully and intentionally killed one David Braaf by shooting him with a firearm; and, on count three, the allegations were that both appellants, on the same day and at the same place, within the court's jurisdiction, wrongfully and intentionally assaulted one Zuylin Phillips, by firing at him with a firearm with intent to kill him. E

[2] Both appellants pleaded not guilty to all three charges. After evidence was led they were found guilty of attempted robbery on count 1, and, on counts 2 and 3, guilty as charged, and sentenced as follows: on count 1, they were each sentenced to 2 years' imprisonment; on count 2, both F were sentenced to 15 years' imprisonment; and on count 3, the appellants were each sentenced to 7 years' imprisonment. All three sentences were ordered not to run concurrently, effectively each to undergo 24 years' imprisonment. They now appeal to this court against the convictions and sentences.

[3] Counsel for the appellants argued that the court a quo committed an G irregularity by inter alia:

(a)

descending into the arena and questioning the witnesses excessively, that is, seriously transgressing all the generally observed and well- known limitations to questioning, as formulated in S v Rall 1982 (1) H SA 828 (A);

(b)

failing to advise first appellant of his constitutional rights to legal representation after his attorney's withdrawal, as the first appellant faced serious charges; and

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4 practice notes
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...470S v Oktober 2009 1 SACR 291 (C) ........................................................ 278S v Owies and Another 2009 2 SACR 107 (C) ...................................... 465S v Peffer 2008 2 SACR 605 (E) ............................................................ 138S v Petersen 1989......
  • S v Dube and Others
    • South Africa
    • Invalid date
    ...an irregularity which vitiated the appeal proceedings. In the result the appeal succeeds to the extent that the special entry must 2009 (2) SACR p107 Mhlantla be upheld. The order of the court a quo must be set aside and the appeal A referred back for rehearing before a differently constitu......
  • S v Phala
    • South Africa
    • Eastern Cape Division
    • 30 November 2011
    ...JUDGE OF THE HIGH COURT [1] S v Sibiya 2004 (2) SACR 82 (W) 90b-c [2] See S v Sikhipha 2006 (2) SACR 439 (SCA); S v Owies & Another 2009 (2) SACR 107 (C) [3] S v Nagel 1998 (1) SACR 218 (O) (headnote ...
  • Recent Case: Evidence
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...of witnesses, but also in the nature and scope of its questions to the lawyers involved.In the case of S v Owies and another 2009 (2) SACR 107 (C) the two appellants appealed against their convictions of attempted robbery, murder and attempted murder. Their appeal was based upon the argu-me......
2 cases
  • S v Dube and Others
    • South Africa
    • Invalid date
    ...an irregularity which vitiated the appeal proceedings. In the result the appeal succeeds to the extent that the special entry must 2009 (2) SACR p107 Mhlantla be upheld. The order of the court a quo must be set aside and the appeal A referred back for rehearing before a differently constitu......
  • S v Phala
    • South Africa
    • Eastern Cape Division
    • 30 November 2011
    ...JUDGE OF THE HIGH COURT [1] S v Sibiya 2004 (2) SACR 82 (W) 90b-c [2] See S v Sikhipha 2006 (2) SACR 439 (SCA); S v Owies & Another 2009 (2) SACR 107 (C) [3] S v Nagel 1998 (1) SACR 218 (O) (headnote ...
2 books & journal articles
  • Author index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...470S v Oktober 2009 1 SACR 291 (C) ........................................................ 278S v Owies and Another 2009 2 SACR 107 (C) ...................................... 465S v Peffer 2008 2 SACR 605 (E) ............................................................ 138S v Petersen 1989......
  • Recent Case: Evidence
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...of witnesses, but also in the nature and scope of its questions to the lawyers involved.In the case of S v Owies and another 2009 (2) SACR 107 (C) the two appellants appealed against their convictions of attempted robbery, murder and attempted murder. Their appeal was based upon the argu-me......

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