S v Radebe; S v Mbonani

• Judge: Goldstone J and Van Der Merwe J
• Judgment Date: 18 May 1987
• Citation: 1988 (1) SA 191 (T)
• Hearing Date: 15 May 1987
• Court: Transvaal Provincial Division

Goldstone J:

In both of these appeals, one of the main grounds raised on behalf of the appellants relates to the circumstances in which they found themselves without legal representation. In the case of Simon Mbonani, in addition to the issue being raised on appeal, it also forms E the subject-matter of a review. The principles relevant to the decision of both cases are similar and for that reason it was decided to hear them together.

Before considering the facts of the two cases I propose to consider the matter on principle. In S v Wessels and Another 1966 (4) SA 89 (C) at 91D - 92H Van Zyl J discussed the history in our law of the right to F legal representation. The learned Judge drew attention to the fact that it was only in 1819 that a person brought before a court on a criminal charge was entitled, as of right, to be defended by an attorney or advocate. After referring to the old authorities, Van Zyl J continued:

'From these authorities it appears that only after the accused had G been apprehended and brought before the Court and issue had been joined - that is, he had pleaded - could he request the Court to allow him to be represented by an advocate or an attorney. The wording of most of these passages, however, leaves one under the impression that generally speaking the Courts acceded to the accused's request to be represented. It is interesting to note that in discussing this aspect, Vroman (supra ) H quotes Baldus as saying that even the Devil has the right to be heard.'

This evolutionary process of broadening and extending the right to legal representation has continued and is still operating. In S v Heyman 1966 (4) SA 598 (A) Steyn CJ was concerned with the right to legal representation of a person summoned to be subjected to inquiry under the I Criminal Procedure Act (then s 212 of Act 56 of 1955). At 603H the learned Chief Justice, after referring to earlier decisions in our Courts, continued:

'I refer to these cases merely as indicating a trend, in my view a very natural and equitable trend, in the later reported cases, towards allowing legal assistance where the liberty of a person questioned is placed in jeopardy by a possible periodical committal to prison. They J suggested a growing practice of recognising the claim to be represented.'

Goldstone J

A The right to full legal representation was given statutory recognition by s 218 of the Criminal Procedure Act 31 of 1917. Our present Act 51 of 1977 deals with this right in s 73(2) where it is provided that:

'An accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any B law prohibited from appearing at the proceedings in question.'

The fundamental importance of this right is now beyond question. Indeed, over 20 years ago, in S v Seheri en Andere 1964 (1) SA 29 (A) Botha JA at 33H said:

'Oor die belangrikheid van die voordeel van regsbystand by die verhoor C van persone wat, veral weens 'n ernstige misdaad, aangekla word, kan daar geen twyfel bestaan nie.'

In that case, a Circuit Court refused an application for a postponement to enable the appellants to obtain counsel. Through their attorney's neglect counsel had not appeared. Botha JA held that the refusal of the postponement amounted to an irregularity. The question then arose as to D whether, on that ground, the appeal had to succeed. The question thereby posed was:

'Of die appellante deur die onreelmatigheid benadeel was sodat geregtigheid inderdaad nie geskied het nie.'

The learned Judge of Appeal then dealt with that question in the E following terms, at 36B - E:

'Om hierdie vraag te beantwoord kan na die getuienis wat teen die appellante aangevoer was, nie gekyk word nie, want, soos in R v Joannou 1957 (4) SA 385 (FC) op 387, aangetoon word, is daardie getuienis nie die getuienis wat waarskynlik aangevoer sou gewees het indien die F onreëlmatigheid nie plaasgevind het nie. By oorweging van die vraag is hierdie Hof dus beperk tot die aard van die verloop van die verhoor as gevolg van die onreëlmatigheid.

Ek het reeds gemeld dat nie een van die appellante die Staatsgetuies ondervra het nie, en dat nie een van hulle getuienis afgelê of getuies geroep het nie. Daar is geen aanduiding dat hulle versuim in hierdie opsig aan iets anders toegeskryf kan word nie dan dat hulle, toe hulle G hulself onverwags sonder hulle regsverteenwoordiger bevind, aan wie hulle hul verdediging toevertou het, nie voorbereid was om hul eie verdediging te behartig nie. Onder hierdie omstandighede was hulle klaarblyklik ernstig benadeel en het geregtigheid inderdaad nie geskied nie. Die appèl moet gevolglik slaag.'

The judgment of Jansen JA in S v Shabangu 1976 (3) SA 555 (A) is H similarly instructive. There the accused had requested the magistrate for a second postponement in order to obtain an attorney. The charge related to the dealing in a substantial quantity of dagga in contravention of s 2(a) of Act 41 of 1971. The postponement was refused after the prosecutor, in opposing the grant of the postponement, informed the court that one of the two State witnesses was about to I leave for army duty on the border and would be unavailable for some five months. The appellant was given an adjournment until 11h30 on that morning and, when he still had no legal representative, the trial resumed. He was convicted and sentenced to seven years' imprisonment. In his judgment, Jansen JA held that the magistrate had misdirected himself in holding that the appellant had belatedly approached an attorney or J had failed to instruct him properly.

Goldstone J

A Those conclusions were held to have been inferences unjustified in the absence of further clarification. The learned Judge of Appeal continues as follows as 558D - G:

'The court, in exercising its discretion to proceed with the trial, had clearly misdirected itself in this respect. And were it not for B this, the court would no doubt have felt that the appellant's right to legal representation and the requirements of a fair trial outweighed the obvious inconvenience or delay, with the risk of evidence becoming unavailable that would be attendant upon a postponement. The charge was a serious one and the consequence of a possible conviction to the appellant disastrous in view of the penalties involved. The case against the appellant on the merits certainly appears to be formidable and to C have fully justified the conviction. But, on the other hand, it is impossible to say what effect a properly conducted defence would have had on the ultimate result. In view of the misdirection which materially influenced the court in exercising its discretion, the principles applied in S v Seheri en Andere 1964 (1) SA 29 (A) at 36 are fully operative.'

The conviction and sentence were set aside.

D In S v Wessels (supra ), S v Blooms 1966 (4) SA 417 (C), S v Nqula 1974 (1) SA 801 (E), Ndanozonke and Another v Nel NO and Another 1971 (3) SA 217 (E); Khumbusa v The State and Another 1977 (1) SA 394 (N) and S v Mkhize 1978 (3) SA 1065 (T), proceedings were similarly held to have been vitiated where in effect an accused had been irregularly deprived of the right to legal representation.

E As was pointed out by Margo J in S v Baloyi 1978 (3) SA 290 (T) at 293F - G, the judgments in cases such as those to which I have referred all deal with the right of an accused to legal representation where he wished it. The learned Judge continued to say that:

F 'However, where he does not seek it, and where no irregularity occurs by...