S v Ramulifho

• Jurisdiction: South Africa
• Citation: 2013 (1) SACR 388 (SCA)

S v Ramulifho
2013 (1) SACR 388 (SCA)

2013 (1) SACR p388

Citation	2013 (1) SACR 388 (SCA)
Case No	413/2012; [2012] ZASCA 202
Court	Supreme Court of Appeal
Judge	Mpati P, Ponnan JA, Cachalia JA, Southwood AJA and Erasmus AJA
Heard	November 9, 2012
Judgment	November 30, 2012
Counsel	AL Thomu for the appellant.; RJ Makhera for the state.

Flynote : Sleutelwoorde

B Appeal — Generally — Trial court's evaluation of evidence — Presumption that trial court's findings of fact are correct — Evidence ultimately to be assessed as whole — In determining whether trial court's findings of fact were clearly wrong, it is useful aid to break body of evidence down into its C component parts, but, in doing so, one must guard against tendency to focus too intently upon separate and individual parts of what is, after all, mosaic of proof — Evidence ultimately to be assessed as whole — All evidence did not prove appellant's guilt beyond reasonable doubt.

Fundamental rights — Right to a fair trial — Assistance to unrepresented D accused — Right to a fair trial in terms of s 35(3) of Constitution, 1996 — Includes obligation on court to assist undefended accused to present his defence properly — Regional magistrate obliged to act as guide to appellant at all stages of trial — Failed to inform appellant of right to legal representation, did not explain how to cross-examine, did not assist in cross-examination, allowed prosecution to ask leading questions — These E failures all constituting violations of accused's right to fair trial.

Appeal — Generally — Unreasonable delay in finalisation of — Appellant serving sentence — Obligations of officials and legal representatives — Eight-year delay — Where convicted person who is serving prison sentence wishes to appeal, every person involved in process must ensure that he or she does, F with utmost expedition, what he or she is required to do.

Headnote : Kopnota

The appellant was convicted in a regional court of rape and was sentenced by the high court to life imprisonment in 2002. He was granted leave to appeal in 2010 and, after hearing argument at the hearing of the appeal in November 2012, the court upheld the appeal and ordered the immediate release of the appellant. It appeared that the appellant was approximately 16 years old at G the time of the offence and 18 years old when he eventually stood trial after having been in custody for two years. His correct age was never properly ascertained by the police or prosecution. By the time the trial commenced he had been arrested, interrogated, detained for almost two years, and been forced to make admissions or a confession, all without the assistance of a legal representative or the advice of his parents or guardian. It appeared H furthermore that the regional magistrate did not inform the appellant of his right to legal representation; he did not properly explain to the appellant how to cross-examine, and when the appellant showed, through his questions, that he did not understand how to cross-examine, he did not assist the appellant to put questions; he allowed the prosecutor to ask obviously leading questions on the material issues and to lead inadmissible I evidence; and he did not properly explain to the appellant his rights in respect of the medico legal report and he clearly did not read it, or, if he did, he did not understand its import. Eventually, when he gave judgment he did not properly consider all the evidence. With regard to the complainant, he did not remind himself about the dangers inherent in dealing with a child's evidence and there is no suggestion that he carefully considered her evidence to determine whether it could be found to be reliable. He dealt J with the defence evidence in two or three lines, and what he said did not

2013 (1) SACR p389

properly reflect the substance of what the witnesses said, and he did not A consider their evidence in the light of the medico legal report which obviously indicated that they were telling the truth. The conduct of the trial showed that a lack of legal representation prejudiced the appellant.

The court held that, even if it were accepted that all the evidence was properly before the court, it did not prove beyond a reasonable doubt that the appellant was guilty, and he should have been acquitted. (Paragraph [13] at 395g–396a.) B

As regards the delay in the matter coming before the court on appeal, it appeared that these delays were caused by (1) the failure of the appellant's advocate to inform him, immediately after sentence, of his right to apply for leave to appeal and his right to appeal; (2) the failure of the Legal Aid officer who consulted with the appellant in August 2003 to appoint an attorney to C represent the appellant and order a transcript of the proceedings to enable the appellant to apply for leave to appeal; (3) the failure of the appellant to follow up his instructions to ascertain what progress his attorney was making (which was probably due to the appellant's lack of education and means); and (4) the failure of the Legal Aid officer or attorney appointed by the Legal Aid Board to expeditiously obtain the record (81 pages in extent) for the purpose of the application for leave to appeal and the appeal itself. D

Held, that delays of this nature, in the prosecution of a criminal appeal when the appellant was serving a prison sentence, were not acceptable and ran contrary to the ethic which should prevail in the administration of the criminal-justice system. Where a convicted person who is serving a prison sentence wishes to appeal, every person involved in the process must ensure E that he or she does, with the utmost expedition, what he or she is required to do. The judge or magistrate must hear the application for leave to appeal without delay, the registrar or clerk of the court must have the record transcribed and prepare the record of proceedings, and transmit and file all necessary documents without delay, and the attorney representing the accused must ensure that everyone involved expeditiously does what is required. And that is because the freedom of the individual is involved and F must be safeguarded within the limits of the law. It is an egregious violation of individual freedom to detain a person in prison, and it is the solemn duty of every judicial officer, official involved in the administration of justice, and the legal practitioner representing the accused, to ensure that it will happen only with the full authority of the legal process. The judicial officer and every other official involved in the legal process whereby a person is G deprived of his freedom are obliged to ensure that that process obtains the full stamp of approval of the law as quickly as possible, and the impression must never be created that our courts and judicial officials are indifferent to the freedom of the individual. (Paragraph [17] at 397e–h.)

Cases cited

R v Manda1951 (3) SA 158 (A): referred to H

R v Moshephi and Others LAC (1980 – 1984) 57: dictum at 59F – H applied

S v Hadebe and Others1998 (1) SACR 422 (SCA):dictum at 426f – h applied

S v Hlongwa2002 (2) SACR 37 (T): referred to I

S v J1998 (1) SACR 470 (SCA) (1998 (2) SA 984; 1998 (4) BCLR 424; [1998] 2 All SA 267): referred to

S v Kumalo1983 (2) SA 379 (A): dicta at 382C – F and 383F – H applied

S v Legoa2003 (1) SACR 13 (SCA) ([2002] 4 All SA 373): compared

S v Letsin1963 (1) SA 60 (O): referred to

S v Mapule [2012] ZASCA 80: compared J

2013 (1) SACR p390

S v May2005 (2) SACR 331 (SCA) (2005 (10) BCLR 944; [2005] 4 All SA 334): referred to A

S v Mbuli2003 (1) SACR 97 (SCA): dictum in para [57] applied

S v Nkosi1980 (3) SA 829 (A): referred to

S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO1989 (3) SA 368 (E): referred to

S v V2000 (1) SACR 453 (SCA): referred to B

S v Van Aswegen2001 (2) SACR 97 (SCA): dictum in para [8] applied

S v Van der Meyden1999 (1) SACR 447 (W) (1999 (2) SA 79): referred to

S v Vilakazi2009 (1) SACR 552 (SCA) ([2008] 4 All SA 396): dictum in para [21] applied

Woji v Santam Insurance Co Ltd1981 (1) SA 1020 (A): referred to. C

Case Information

Appeal from a conviction of rape in a regional court and the imposition of a sentence of life imprisonment in the Venda High Court (Hetisani J). The facts appear from the reasons for judgment.

AL Thomu for the appellant.

RJ Makhera for the state. D

Cur adv vult.

Postea (November 30).

Order E

1.

The appeal is upheld.

2.

The conviction and sentence are set aside.

F (Ordered that the appellant be released immediately.)

Judgment

Southwood AJA (Mpati P, Ponnan JA, Cachalia JA and Erasmus AJA concurring):

[1] The appellant appealed against his conviction of rape by the Thohoyandou Regional Court on 16 March 2002, and the sentence of life G imprisonment imposed on him by the Venda High Court (Hetisani J) on 18 July 2002. Leave to appeal against both the conviction and sentence was granted by the Limpopo High Court (Makhafola J) on 8 November 2010. After argument at the hearing on 9 November 2012, this court upheld the appeal, set aside the conviction and sentence and ordered that the appellant be released immediately. The court also indicated that H its reasons would follow. These are the reasons.

[2] The appeal was upheld for two reasons: first, the evidence did not prove beyond a reasonable doubt that the appellant had raped the complainant, nor did it prove that the appellant was guilty of any...