S v Seheri en Andere

• Jurisdiction: South Africa

S v Seheri en Andere
1964 (1) SA 29 (A)

1964 (1) SA p29

Citation	1964 (1) SA 29 (A)
Court	Appèlafdeling
Judge	Botha AR, Van Wyk AR en Wessels AR
Heard	September 12, 1963
Judgment	September 23, 1963

Flynote : Sleutelwoorde A

Strafproses — Verhoor — Versuim van regsverteenwoordiger om op te daag — Versuim om sy opdrag uit te voer — Geen versuim aan die kant van die beskuldigde.

Headnote : Kopnota

Die algemene reël dat 'n aangeklaagde gebonde is aan wat deur sy regsverteenwoordiger gedoen word, geld slegs met betrekking tot die geval waar die regsverteenwoordiger by, of moontlik in verband met, 'n verhoor namens die aangeklaagde optree in die uitvoering van sy opdrag, en nie met betrekking tot 'n geval waar die regsverteenwoordiger in gebreke bly om sy opdrag uit te voer, en dus glad nie namens die aangeklaagde optree nie. Die beskuldigde kan nie, bloot op grond van sy prokureur se nalatige versuim om sy opdrag uit te voer, die geleentheid om regsbystand by die verhoor te bekom, ontsê word nie.

Flynote : Sleutelwoorde

Criminal procedure — Trial — Legal representative failing to appear — Failure to carry out his mandate — No neglect on the part of the accused — Entitled to a postponement.

Headnote : Kopnota

The general rule that an accused is bound by what is done by his legal representative, only applies with reference to the case where the legal representative appears at, or perhaps in connection with, a trial on behalf of the accused in the execution of his mandate, and not with reference to a case where the legal representative remains in default in executing his mandate, and thus does not appear at all on behalf of the accused. The accused cannot, merely on the ground of his attorney's negligent failure to carry out his mandate, be denied the opportunity of having legal representation at the trial.

Case Information

Appèl teen 'n skuldigbevinding in die Mafeking Rondgaande Afdeling (DE VOS HUGO, R.). Die feite blyk uit die uitspraak van BOTHA, A.R.

G. Bizos, namens die appellante: In refusing the three applications for a postponement made by appellants, the Court a quo did not exercise the discretion vested in it by secs. 160 and 161 of Act 56 of 1955 in a judicial manner. On the facts as a whole, the presiding Judge's suspicions concerning, and strictures upon, appellants' attorney, were E not justified. But, be that as it may, the fact that the three accused were likely to be prejudiced because they were not represented, appears to have taken a secondary place. The law relating to agency may be strictly applied in most fields but not to the administration of justice in criminal matters. The considerations mentioned in R v Muruven, 1953 (2) SA 779, and relied upon by the Judge a quo, do not apply to F conduct such as is complained of on the part of the attorney in this case. The test to be applied on appeal has been clearly established in R v Zackey, 1945 AD 505; R v Desai, 1953 (1) P.H. H.14; Madnitsky v Rosenberg, 1949 (2) SA at p. 598; R v Joannou, 1957 (4) SA 385 G and the authorities therein cited. Appellants have to show that the Court's discretion was exercised unjudicially in the sense of capriciously, or upon some wrong principle. If the Court a quo is shown to have misdirected itself, it has not exercised its discretion judicially. The Judge

1964 (1) SA p30

a quo misdirected himself in the following respects: (a) he allowed himself to be unduly influenced by the failure of appellants' attorney to brief counsel rather than by the conduct of the appellants and the A seriousness of the offence with which they were charged; (b) he failed to enquire into the possible reasons for non-appearance of counsel, more especially as the accused were at that stage unrepresented; (c) he relied upon a conversation with counsel in Chambers relating to the defence of appellants; (d) he imputed to appellants lack of cooperation B when they were doing nothing more than pleading for an adjournment of their trial; (e) he placed too much emphasis on the convenience of the Court. The refusal to adjourn was an irregularity in the proceedings within the meaning of sec. 364 (1) of Act 56 of 1955; see Gardiner & Lansdown, South African Criminal Law & Procedure, 6th ed., pp. 437 et C seq. Appellants do not have to show that they were prejudiced on the recorded evidence because it was not tested by cross-examination nor was an attempt made by appellants to controvert the evidence given on behalf of the State; see Joannou's case, supra. The irregularity committed is within the second category referred to in S v Moodie, 1961 (4) SA 752, and it is unnecessary to speculate as to whether or D not appellants had a defence or whether they would inevitably have been convicted if they had been represented. In any event, that would be impossible to ascertain on untested and uncontroverted evidence. If it is found that the submissions set out above are well founded, there was an irregularity and the convictions and sentences should be set aside; see R v Cele, 1959 (1) SA 245; R v Siphambo, 1963 (1) SA 174. E Such setting-aside of the convictions and sentences would not be an acquittal on the merits and the appellants could be re-charged if the State so directed; cf. S v Moodie, 1962 (1) SA 587; S v Naidoo, 1962 (4) SA 348. Alternatively, the sentences are unduly harsh, having due regard to the fact that appellants had a claim or right to the land F which was being divided, a fact which was overlooked by the Court a quo.

P. W. Thirion, namens die Staat: A Court grants or refuses a postponement in the exercise of a judicial discretion conferred on it by sec. 161 (1) of Act 56 of 1955. The Court of appeal's enquiry into the propriety of the trial Court's refusal to grant a postponement falls G into two parts. The first part involves the question whether, on the information before it the trial Court should have refused a postponement. The Court of appeal will only interfere if the trial Court has not exercised its discretion in a judicial manner, i.e. (a) if it has not taken into consideration or has not given due weight to all the circumstances which have a bearing on the matter; (b) if it has not been H unbiassed in its judgment; (c) if it has acted on a wrong principle. The second part of the enquiry involves the question whether the additional facts placed before the Court of appeal entitle the appellant to relief; see R v Zackey, 1945 AD 505; Desai v R., 1953 (1) P.H. H.14. On this part of the enquiry the Court will take into consideration the likelihood of prejudice to appellant due to the lack of legal representation; see R v Joannou, 1957 (4) SA at pp. 386 - 7; S v Shangase, 1963 (1) SA at p. 139. Prejudice to the accused is, however, not the only consideration; see R. v.

1964 (1) SA p31

Zackey, supra at p. 512; R v Madikane, 1960 (4) SA 776; R v de Beer, 1949 (3) SA at pp. 748 - 9. As to when an attorney's negligence will operate against his client, see du Plessis v Tager, 1953 (2) SA at p. 280; R v Muruven, 1953 (2) SA 779. As to the value of an ex A parte statement made by an attorney, see R v Njinema and Another, 1951 (2) SA 183. On the facts, it cannot be said that the trial Judge did not exercise a judicial discretion in refusing the application. The further question then arises, i.e. whether the additional evidence which has been placed before this Court entitles appellants to relief. The onus to prove this is on appellants. The affidavits placed before the B Court...