S v Sibiya

• Jurisdiction: South Africa
• Judge: Shakenovsky AJ and Saldulker AJ
• Judgment Date: 13 February 2004
• Citation: 2004 (2) SACR 82 (W)
• Docket Number: A18/03
• Hearing Date: 13 February 2004
• Counsel: N R Green for the appellant. Adv Raphaels for the State.
• Court: Witwatersrand Local Division

Shakenovsky AJ et Saldulker AJ:

[1] C The appellant was convicted of robbery with aggravating circumstances and sentenced to a period of 15 years' imprisonment in terms of the provisions of s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act), to the compulsory minimum sentence. The court a quo was not satisfied that substantial and compelling circumstances existed which justified the imposition of a lesser sentence. D

[2] The appellant was not represented in the court a quo. The appellant was accused 1 and his co-accused, accused 2, Mkitswa Mtshineni, was acquitted. E

[3] An amended notice of appeal was served on the magistrate and the clerk of the court on 13 January 2004. Ms Green, appearing for the appellant, informed the Court that the magistrate informed her that he had nothing further to add in response to the amended notice of appeal. F

[4] The original record with the magistrate's handwritten notes were made available to both counsel for the appellant and the respondent who confirmed that the typewritten record correctly reflects such written notes. These notes have been incorporated in the record before us.

[5] From the record of the proceedings in the court a quo the following appears (the record does not appear to follow in G chronological order):

On 11 December 2000 the following is noted:

'Housebreaking and (?) firearm. State oppose bail. Remanded to 18/12/2000, bail application.'

On 18 December 2000 the following is noted: H

'Proceedings mechanically recorded. Crowded out. Remanded 19/12/2000 address and judgment.'

On 19 December 2000 the following is noted:

'Appearances as before. Proceedings mechanically recorded. Remanded to 17/01/2001. Further investigation. Bail set R2 000. Condition explained.'

On 27 December 2000 the following is noted: I

'Accused No 2 to be joined. Presently at clinic. Postponed to 10/01/2001 for address.'

[6] There is no record what occurred on 10 January 2001. On 15 January 2001 the following is recorded by the magistrate, Mr Poirier. J

Shakenovsky AJ et Saldulker AJ

'Regte verduidelik art 73, regshulp eie verdediging. A Beskuldigde verkies eie regshulp. Remanded 17/01/2001. Accused No 1, 2, 3 in hegtenis, R2 000.'

(Our emphasis.) The record does not reveal precisely what rights were explained to the appellant when it was recorded 'Regte verduidelik', 'art 73' nor is it recorded what the appellant stated in reply thereto. B

[7] The reference to accused 1, 2 and 3 appears to be incorrect as there were only two accused. Save for the cryptic notes referred to, no details appear in the record of what precisely was said by the learned magistrate, Mr Poirier, or what the appellant said in reply thereto on 15 January 2001. C

[8] On 17 January 2001 there appears to be nothing recorded. On 29 January 2001 the following appears to be recorded by Mr Snyman, the magistrate who presided at the trial of the appellant.

'Artikel 73 en regshulp verduidelik. Beide verstaan. Beide verlang regshulp. Uitgestel 2/2/2001. Beide in hegtenis. Borg R2 000 elk. Beide gelas om volledige adres vir D die ondersoekbeampte te gee.'

(Our emphasis.) The record does not reveal what precisely was explained to the appellant when it was recorded 'regshulp verduidelik'.

[9] On 2 February 2001 the following is recorded:

'Uitgestel 9/2/2001 Regshulp. Beide in hegtenis. Borg E R2 000 elk.'

(Our emphasis.)

[10] On 9 February 2001 the following is recorded:

'Appearances as before. Aansoek om regshulp vandag ingedien. Uitgestel 26 Februarie 2001. Beide in hegtenis. Borg R2 000 elk.' F

(Our emphasis.) The record does not set out the details of what was said by the appellant in the aforesaid 'aansoek om regshulp' and what the magistrate stated to the appellant in regard thereto.

[11] On 26 February 2001 the following is recorded: G

'As before. Geen prokureur aangemeld nie. Uitgestel 28/2/2001. Beide in hegtenis. Borg R2 000 elk.'

[12] On 28 February 2001 the following is recorded:

'Geen prokureur aangemeld. Uitgestel 7/3/2001. Beide in hegtenis. Borg R2 000 elk.' H

[13] On 7 March 2001 the following is recorded:

'Appearances as before. Uitgestel 26/3/2001 prokureur. Beide in hegtenis. Borg R2 000 elk.'

[14] On 26 March 2001 the following is recorded: I

'Appearances as before. Staatsaanklaer geen prokureur het aangemeld nie. Beskuldigde 1 en 2 sê hulle verlang nie meer regshulp nie. Beide gaan nou self hulle verdediging behartig. Uitgestel 2/5/2001 verhoor. Beide in hegtenis. Borg R2 000 elk.'

(Our emphasis.) The record on this date does not set out precisely what was stated by the appellant and his co-accused, save for the said note J

Shakenovsky AJ et Saldulker AJ

made by the magistrate, nor does it reveal what the magistrate stated in response to the appellant and his co-accused. A

[15] On 2 May 2001 the following is recorded:

'As before. Uitgestel 8/6/2001 verhoor. (Staatsaanklaer nie vandag by werk.) Staatsaanklaer van Streekhof 2 dae net uitstelle. Beide in hegtenis. Borg R2 000 elk. Getuies: Johanna Mohammed, Fiona Mohammed (jeugdige) gewaarsku 08:30.' B

[16] On 8 June 2001 the following is recorded:

'Meganiese opname. Uitgestel 28/6/2001. Beide in hegtenis.'

[17] On 28 June 2001 the following is recorded:

'Meganiese opname.' C

[18] The charge-sheet contains no reference to the relevant provisions of s 51 of the Criminal Law Amendment Act 105 of 1997 (the Act).

Court procedure

[19] D Save as set out above the record of the court a quo does not reveal that the magistrate informed the appellant of the provisions of the aforesaid Act with regard to the risk of a heavy penalty pursuant to the aforesaid Act that may result in the event of a conviction.

[20] Ms Green, counsel for the appellant, argued that neither the charge-sheet nor the annexures thereto make any mention of E the Criminal Law Amendment Act 105 of 1997. The appellant was not warned that the minimum sentences were applicable in the event of his being convicted. She further submitted that:

(i)

The appellant was therefore not able to make an informed decision as to whether or not to obtain legal F representation;

(ii)

the failure to inform the appellant about the applicability of the minimum sentence provisions before the appellant embarked on representing himself, constituted a material procedural irregularity which vitiated the proceedings. G

In the circumstances she submitted that the conviction of the appellant should be set aside.

[21] These submissions thus raise fundamental issues regarding the rights of the appellant to a fair trial. H

[22] The record does not set out precisely what was stated by the magistrate on the various occasions to the appellant, nor does the record reveal precisely what was said by the appellant in response thereto. In view of the fundamental importance of the rights of the appellant, the question now arises as to whether such cryptic notes made by the presiding officer/s (as set out above) sufficiently conveys I what precisely was stated on these occasions either by the magistrate/s or by the appellant.

[23] The question that falls for determination is whether precisely what was stated to an accused person and precisely what his responses thereto were, should not appear in full ex facie the record of the proceedings. J

Shakenovsky AJ et Saldulker AJ

[24] The magistrate, in his judgment, on p 19 of the record, lines 24 to 27, states the following: A

'Beskuldigde se reg op regsverteenwoordiging, die hulp wat aan hulle verskaf kan word, is verduidelik. Hulle...