S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and Another

• Jurisdiction: South Africa

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

1989 (3) SA p368

Citation	1989 (3) SA 368 (E)
Court	Eastern Cape Division
Judge	Jennett J, Jansen J, Cooper J
Heard	December 9, 1988
Judgment	March 6, 1988

Flynote : Sleutelwoorde G

Criminal procedure — Trial — The accused — Legal representation of — Accused unrepresented — Entitlement to legal representation — Judicial officer not under peremptory duty to inform such accused of H his entitlement — But judicial officer should inform an undefended accused in every case of his right to legal representation — Should also inform him of an indigent accused's right to apply for legal aid under Legal Aid Act 22 of 1969 — Improper for judicial officer to select the cases in which an undefended accused should be informed of I his right to apply for legal aid — Should be done in all cases — Failure to inform such accused of his right to legal representation and/or the availability of legal aid not necessarily vitiating the proceedings — Vitiation of proceedings dependent on whether there has been a failure of justice. J Criminal law — Housebreaking with intent to steal and theft — What constitutes — unlawful entry into premises through an open window

1989 (3) SA p369

A does not constitute a 'breaking in' — Accused not guilty of housebreaking in such circumstances.

Headnote : Kopnota

A judicial officer is not under a peremptory duty to inform an undefended accused of his entitlement to legal representation. A judicial officer should, however, inform an undefended accused in every case of his right to legal representation - logically there being B no reason for limiting the ambit of this duty. To facilitate matters and to minimise unnecessary delays, an accused person whose appearance in court is obtained by summons may be notified of his right to legal representation in the summons.

Knowledge of his right to legal representation is of no value to an indigent accused if he is unaware of his right to apply for legal aid and it is a corollary of a judicial officer's duty to inform an undefended accused of his entitlement to legal representation to C inform him of an indigent accused person's right to apply for legal aid under the Legal Aid Act 22 of 1969.

It is improper for a judicial officer to select the cases in which an undefended accused should be informed of his right to apply for legal aid. Legal aid is rendered or made available to indigent accused by the Legal Aid Board by virtue of the powers vested in it by the Legal Aid Act. The Act does not vest the courts with any power to determine in which circumstances and to whom legal aid should be rendered or D made available: this power falls solely within the province of the Legal Aid Board and those delegated to exercise its powers. A judicial officer should not only inform an undefended accused of an indigent accused person's right to apply for legal aid only 'in appropriate cases' (whatever that may mean), as was held in S v Radebe; S v Mbonani 1988 (1) SA 191 (T), but should do so in every case. Indeed, should he only inform an undefended accused of legal aid for indigent accused persons in what he considers to be an 'appropriate case', the judicial E officer may thereby be depriving an accused of legal aid who is entitled to it.

The failure to inform an accused of his right to legal representation and/or the availability of legal aid does not necessarily vitiate the proceedings: in each case this will depend on whether there has been a failure of justice.

S v Radebe; S v Mbonani 1988 (1) SA 191 (T) discussed and criticised in part.

S v Khanyile and Another 1988 (3) SA 795 (N) not approved and not followed.

F The Court found in the three appeals before it that in each case the appellants were aware of their rights even though the magistrate had not informed them of their right to legal representation. The Court held, accordingly, that no failure of justice had occurred as a result of the magistrate's failure to inform them of their right to legal representation.

The Court held further, in the Rudman matter, that an unlawful entry into premises through an open window did not constitute a 'breaking G in' and that Rudman's conviction of housebreaking with intent to steal and theft (he had entered the premises through an open window 'which was big enough for a grown-up to go through') had to be altered to a conviction of theft only.

S v Maunatlala 1982 (1) SA 877 (T) applied.

Case Information

Appeals from convictions and sentences in a regional magistrate's H court (S v Rudman) and in magistrates' courts (S v Johnson and S v Xaso) and an application for the review and setting aside of the conviction and sentence in the Xaso matter. The facts and the issues raised appear from the reasons for judgment.

K V Matthee for the appellant in the Rudman case (at the request of the Court).

I I J Smuts for the appellants in the Johnson and Xaso cases and for the applicant in the application for review.

M J Hodgen (with him J Bezuidenhout) for the State in all the appeals and for the respondents in the application for review.

J Cur adv vult.

1989 (3) SA p370

A Postea (March 6).

Judgment

Cooper J:

In these three appeals two of the main grounds raised on behalf of the appellants relate to an undefended accused's right to be informed of his entitlement to legal representation as well as his B right to apply for legal aid. In the case of Wilson Xaso, in addition to these issues being raised on appeal, they also form the subject-matter of a review. For that reason it was decided to consolidate the hearing of these matters.

Before considering the merits of these matters I propose to consider the above grounds for relief.

C In each of these matters the appellant was not represented at his trial and in each case the appellant complains that the magistrate hearing his case failed to inform him:

(a)

that he was entitled to the assistance of a legal adviser; and

(b)

that he was entitled to approach the Legal Aid Board for financial assistance to secure the services of a legal representative.

D Counsel for the appellants both contend that a judicial officer is under a duty to inform an unrepresented indigent accused that he is entitled to the assistance of a legal adviser and that a judicial officer's failure to inform the accused of his entitlement amounts to a gross irregularity which vitiates the proceedings.

E A corollary of the right to be informed (it is claimed) is the right of an indigent accused (ie an accused unable to pay for his defence) to legal representation. It is argued that unless legal representation is provided for an indigent accused who asks for it the judicial officer should decline to hear his trial. The trial of such an undefended accused (it is submitted) would amount to a denial of a F fundamental right, and would constitute a gross irregularity.

Counsel contend that the failure to inform an accused of his right to representation and the failure to provide an accused with legal representation are irregularities which per se result in a failure of justice and vitiate the proceedings. Accordingly, the conviction G and sentence of each appellant should be set aside. This general contention has been prompted by two South African decisions, viz S v Radebe; S v Mbonani 1988 (1) SA 191 (T) and S v Khanyile and Another 1988 (3) SA 795 (N).

In Radebe's case Goldstone J at 196G - I expressed the view that:

'If there is a duty upon judicial officers to inform unrepresented H accused of their legal rights, then I can conceive of no reason why the right to legal representation should not be one of them. Especially where the charge is a serious one which may merit a sentence which could be materially prejudicial to the accused, such an accused should be informed of the seriousness of charge and of the possible consequences of a conviction. Again, depending upon the complexity of the charge, or of the legal rules relating thereto, and I the seriousness thereof, an accused should not only be told of this right but he should be encouraged to exercise it. He should be given a reasonable time within which to do so. He should also be informed in appropriate cases that he is entitled to apply to the Legal Aid Board for assistance. A failure on the part of a judicial officer to do this, having regard to the circumstances of a particular case, may result in an unfair trial in which there may well be a complete failure of justice. I should make it clear that I am not suggesting J that the absence of legal representation per se or the absence

1989 (3) SA p371

Cooper J

A of the suggested advice to an accused person per se will necessarily result in such an irregularity or an unfair trial and the failure of justice. Each case will depend upon its own facts and circumstances.'

This statement was quoted with approval in Khanyile's case at 799H - 800A and in S v Gwebu 1988 (4) SA 155 (T) at 159J - 160E. At the same B time Didcott J went further than Goldstone J was prepared to go. Largely on the strength of American case law and American judicial thinking Didcott J decided - as a matter of principle and of policy - that all accused should be entitled to legal representation (Khanyile's case at 814G) but, because of a lack of funds and a shortage of manpower, he formulated a test for entitlement to legal representation by identifying C those cases in which 'the call for representation is the most demanding and the lack of it the most debilitating' (Khanyile's case at 815C - D). The least serious (petty) cases and the most serious cases are thus excluded; petty cases, because lawyers are seldom employed even by the non-indigent, and the most serious cases, because of the appointment of D pro deo counsel. Between these...