S v Saule

• Jurisdiction: South Africa
• Judge: Ebrahim J and Maqubela AJ
• Judgment Date: 16 March 2005
• Citation: 2009 (1) SACR 196 (CK)
• Docket Number: CA&R 71/2004
• Hearing Date: 18 February 2005
• Counsel: SJ Swartbooi for the appellant. F Kruger for the respondent.
• Court: Ciskei High Court

Ebrahim J:

Introduction

C [1] The appellant (and one of his co-accused) was convicted in the regional court of Mdantsane on three counts of robbery and two counts of contravening provisions of the Firearms Control Act 60 of 2000 (Firearms Act), namely, the unlawful possession of ammunition. In respect of D the convictions for robbery the court a quo imposed a term of imprisonment for 15 years on each count. However, the sentences on counts 1 and 2 and a period of ten years on count 3 were to run concurrently. On these counts, therefore, the sentence was an effective term of imprisonment for 20 years. In respect of the conviction for the E unlawful possession of a firearm a term of imprisonment for three years was imposed, and of the conviction for the unlawful possession of ammunition a term of imprisonment for one year. The appellant was consequently to serve a term of imprisonment for 24 years. The appellant now appeals against both the convictions and sentences. F

[2] Before addressing the issues raised by this appeal I need to comment, briefly, on an issue that was not canvassed by either the appellant or the State. In his judgment the regional magistrate (Mr EL Moss) stated that the appellant (and his co-accused) was being 'convicted on counts 1, 2, 3, 4 and 5 as charged' and described these as 'robberies with aggravating circumstances' when imposing sentence. The charge-sheet, however, did G not allege that the State would seek a conviction in respect of counts 1, 2 and 3 on the basis that aggravating circumstances accompanied the commission of these offences. Even though this omission would not necessarily be fatal it is good practice for the State to allege in the charge-sheet that a conviction would be sought on this basis. In this H regard the remarks of Van Winsen AJA, as he then was, in S v Moloi 1969 (4) SA 421 (A) at 424A are apposite:

As a general rule it is a desirable practice to charge an accused in such a way that he is apprised of the fact that the State will ask for his conviction on an offence coupled, where this is permitted by law, with a finding that it was committed under aggravating circumstances. R. v. I Zonele and Others, 1959 (3) S.A. 319 (A.D.) at p.323.

The grounds of appeal

[3] The notice of appeal details a number of grounds of appeal, many of which are repetitive, against the appellant's conviction. In the final J

Ebrahim J

A analysis, the grounds can be reduced to the following, namely: (a) the regional magistrate was biased against the appellant and erred in refusing the appellant a postponement to enable him to obtain the services of another legal representative; (b) the regional magistrate failed to separate the trial of the appellant, who was not legally represented, from that of B his co-accused, who were legally represented; and (c) the appellant did not receive a fair trial.

[4] The regional magistrate did not deem it necessary to reply to any of the individual grounds of appeal, contenting himself instead with his 'ex C tempore judgment and reasons for sentence'.

[5] Mr Swartbooi, who appeared for the appellant, submitted that the regional magistrate committed a series of irregularities. Firstly, the regional magistrate had refused to grant the appellant a postponement to enable him to engage the services of another legal representative; D secondly, he compelled the appellant to continue with the trial with a legal representative not of his choosing; thirdly, he unfairly discriminated against the appellant by ordering, without any submissions being made to this effect, that there be a separation of the trial of accused 3 due to his legal representative being absent, yet failed to do so when the appellant was placed in a similar position; fourthly, he insisted that the appellant E conduct his own defence, and proceeded with the trial despite the appellant being unrepresented. Mr Swartbooi submitted that due to these irregularities an injustice occurred and the appellant's conviction on all the charges and the sentences should be set aside.

F [6] Mr Kruger, who appeared for the State, identified the same issues as being central to the appeal. Whilst conceding that there had been certain irregularities he contended that there had not been a failure of justice. The irregularities had not tainted the verdict and the convictions should not be set aside. He conceded, however, that the irregularity that had occurred at the sentencing stage of the proceedings necessitated that the G sentences be set aside. But, he foresaw certain difficulties if the matter had to be referred back to the regional magistrate for the appellant to be sentenced afresh.

The initial stages of the trial

H [7] The trial of the appellant (who was accused 2) and two co-accused commenced on 28 March 2001. Mr Ngoma appeared for accused 1, and Mr Ntintelo for the appellant and accused 3. The appellant and accused 1 pleaded not guilty to the three counts of robbery and the two offences under the Firearms Act. Accused 3 also pleaded not guilty to the I three counts of robbery, but tendered a plea of guilty to the two offences under the Firearms Act and submitted a statement in terms of s 112 of the Criminal Procedure Act 51 of 1977 (CPA).

[8] The State then adduced the testimony of two witnesses, who were cross-examined by the legal representatives for the accused, before the J trial was adjourned to an unspecified date. On 20 January 2003, nearly

Ebrahim J

22 months later, the trial resumed without any explanation for the long A delay. It was only on 29 August 2003 that the regional magistrate, in deciding on an application for a postponement, revealed the possible reasons for the delay. He remarked that 'this matter has been dragging on for two and a half years almost' because Mr Ntintelo could no longer represent the appellant and accused 3, that the transcription of the B record had been delayed, and that accused 1, and subsequently the appellant, had failed to attend court.

[9] On 20 January 2003 the appellant and accused 3 were represented by Mr L Mvapantsi, but the reason for the change in legal representation does not appear on the record. A further witness testified and was C cross-examined before the trial was postponed to 27 February 2003. When it resumed on 27 February 2003 another witness testified and was cross-examined before the trial was postponed once again.

The incidents upon which the appeal is based D

[10] When the trial resumed on 26 June 2003 Mr Mvapantsi informed the court that he wanted to withdraw as the appellant's legal representative. He stated that the appellant had engaged the services of Mr Marongo, an attorney from Grahamstown, to represent him.

[11] For a complete and accurate picture of what transpired, and to E facilitate an analysis of the issues, it is preferable to let the record of the trial proceedings speak for itself (record, pp 108 - 115):

Court: All right. Mr Mvapantsi, you indicated that you wish to withdraw as an attorney, can you put your reason on record, F please?

Mr Mvapantsi: As Court please, Your Worship. Yes, Your Worship, I indicated that I wish to withdraw as accused 2's attorney of record, Your Worship. The accused and I, Your Worship discussed that we - it is in - it is necessary for me to withdraw as his attorney - as an attorney of record. The reason being that he has G appointed another attorney privately since I was acting on legal aid instructions. What the accused wants, Your Worship, he wants another representative, Your Worship, whom he has paid. That is the reason why I say I'm - we decided that I should withdraw as attorney of record, your Worship. He has indicated no further reasons, Your Worship, to me. H

Court: He just wants another attorney?

Mr Mvapantsi: Yes, Your Worship.

Court: And did he inform you who he has appointed now?

Mr Mvapantsi: He has informed me, Your Worship, that Mr Marongo I (?) from - an attorney from Grahamstown has been appointed by him to take over from me.

Court: So that is the only reason he wants another attorney?

Mr Mvapantsi: Your Worship, as far as he told me, Your Worship, it's the only reason. J

Ebrahim J

A Court: All right. You don't have a problem carrying on as his attorney apart from the fact that he now wishes to have another attorney, do you have any other objections?

Mr Mvapantsi: Your Worship, if I can - I've already put my mind away from this case because of the fact that, Your Worship, I have to B withdraw - we have decided that I withdraw.

Court: So when did he inform you about this?

Mr Mvapantsi: Today, Your Worship.

Court: So you can't put your mind away within a couple of minutes, Mr Mvapantsi, because he just arrived at court.

C Mr Mvapantsi: Fear that, Your Worship, that I will not represent him, Your Worship, from my - I will not do - I will not carry on, Your Worship, with his interest at my heart, Your Worship.

Court: You realise obviously that if you withdraw - or let me put it to you this way. If we proceed today and he doesn't have an attorney D here, it will be his fault and then he won't be entitled to another attorney. Because I'm going to give him the chance shortly of proceeding with...