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S v Balatseng (CA 157/2003)  ZANWHC 23 (22 September 2004)
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CASE NO. CA 157/2003
IN THE HIGH COURT OF SOUTH AFRICA
(BOPHUTHATSWANA PROVINCIAL DIVISION)
In the matter between:
WALTER BALATSENG APPELLANT
THE STATE RESPONDENT
 The Appellant in this matter was convicted by my Brother Hendler of (1) murder, (2) attempted murder, (3) theft of a firearm, and (4) possession of a firearm without a licence to possess it. He was sentenced to undergo the following terms of imprisonment: life, 10 years, 3 years and another 3 years in respect of counts 1, 2, 3 and 4 respectively.
 An application for leave to appeal to the Full Bench of this Division was launched. Leave was granted and that is how we became seized of the matter.
 The appeal came before us on 25 June 2004. Having heard both counsel for the Appellant and for the Respondent, we set aside the convictions and sentences and reserved reasons for judgment. These then are the reasons.
 This appeal revolves around whether the:—
4.1 Appellant’s right to legal representation was explained to him and whether he was allowed to exercise that right;
4.2 legal aid counsel should have been allowed to represent the Appellant on 19 March 2001;
4.3 Appellant’s procedural rights were properly explained to him;
4.4 Court assisted or guided the Appellant, who was an undefended accused, in the presentation of his case; and
4.5 Court should order a trial de novo.
The factual background to the above issues is set out below.
 On 28 February 2001 the Appellant appeared before His Lordship Mr Justice Hendler for the first time. He was then represented by Mr van Heerden, who was briefed by Mr Potgieter (an attorney) on legal aid instructions. After consulting with the Appellant, Mr van Heerden informed the Court that the Appellant was in a very emotional state as a result of which he could not get clear instructions from him. He told the Court that the accused was upset and could not think straight. According to Mr van Heerden, it was not clear to him whether the Appellant remembered what happened on the day to which the charges relate or whether he did not remember. He asked for more time to consult with the Appellant. The Court reluctantly granted him the indulgence to consult further with the Appellant until 14h00 of the same day.
 When the hearing resumed at 14h00 the Appellant, with the approval of Mr Potgieter, had terminated the mandate of Mr van Heerden. The Appellant wanted counsel of his choice, a Mr Nel from Kimberley, to represent him. This necessitated a postponement. What transpired between the Court and the Appellant, prior to the postponement being granted, is set out below:
“HENDLER J: Look Ms Mogoeng, it’s bit of an awkward situation but I’m going to get an undertaking from him. Now look, I’m prepared to postpone your case on one condition that if your advocate of your choice is not here on that day, you will then accept legal aid counsel and the case will proceed. There will be no further postponements. You understand me?
HENDLER J: Are you agreeing to that?
ACCUSED: Yes I do agree.
HENDLER J: You agree. So in other words we’re going to postpone the case now and you are then going to try and instruct some other advocate and pay the other advocate. Is that right? But if on the day that we postpone it to the other advocate that you’ve got is not here, you will then proceed with the trial with legal aid counsel. I want that on record. What does he say?
INTERPRETER: He says he agrees with it.
HENDLER J: He agrees with that.
The condition for the postponement of the matter was reiterated in the following terms:
“HENDLER J: So try and get a date and what I suggest you do Ms Mogoeng is either you or the Attorney-General phone Mr Pretorius in Kimberley and tell him that’s the date and if there’s no counsel here on that date that the accused has agreed to proceed with legal aid counsel. There are no other postponements, there’s no nothing. That is the date.”
 It is noteworthy that in its endeavour to make it possible for the Appellant to exercise his right to be represented by counsel of his choice, the Court did not enquire of the Appellant whether he had the financial resources readily available to pay counsel of his choice, or whether some asset would first have to be realised or whether some notice would have to be given to the bank in respect of some investment by the Appellant or his relative(s) who might have been willing to sponsor him or do whatever needed to be done before funds could be available. The prosecuting counsel was simply asked to obtain a date from her superior without enquiring from the Appellant whether a particular date would suit him.
 Be that as it may, the matter was eventually postponed to 19 March 2001. The Appellant was, therefore, given 18 days (including weekends) within which to make the necessary arrangements. Such a period may be reasonable or unreasonable depending on the circumstances of the particular accused. Regrettably, the circumstances relevant to this case were not explored with the result that we really do not know whether the period was reasonable or not. A serious attempt must always be made, especially in the case of an undefended accused, to obtain information which would guide the Court in determining whether or not a postponement is reasonable for the intended purpose. I say this because the Appellant was represented by counsel of his choice before us. The lack of information has deprived us of the opportunity to know why the same could not happen during the trial. The information may well have suggested that no need existed for a postponement since the accused, for example, did not have money for counsel of his choice. (S v Halgryn 2002 (2) SACR 211 (SCA) at 215j-216c). All of the above emphasise the importance of criminal trials being conducted in accordance with the notion of basic fairness and justice (S v Zuma  ZACC 1; 1995 (2) SA 642 (CC) at para 16).
 When the matter resumed on 19 March 2001, the Appellant appeared in Court without counsel of his choice. The Court enquired of the Appellant whether he had counsel of his choice on that day. His reply was that he did not know since arrangements for counsel were supposed to be made by his uncle, who was a witness in his case and was sitting outside the courtroom. The Court then informed him that on the previous seating he did not want legal aid counsel but wanted his own counsel. The Appellant said that his parents had changed their stance and had advised him to rather make use of services of legal aid counsel.
 In response to this, the Court told the Appellant that when he refused to be assisted by legal aid counsel on 28 February 2001, he made an undertaking that if he did not have counsel of his choice on the resumption of the trial, then ‘you were going to defend yourself’. The Appellant admitted that he undertook to defend himself. The discussion then proceeded as set out below:
“HENDLER J: So you agree to defend yourself now?
ACCUSED: Yes I’m just going to plead, I [sic] just going to plead to this Court the truth and plead guilty Your Ladyship.
HENDLER J: That’s . . . (inaudible - talking simultaneously)
ACCUSED: That is all that I’m going to say.
HENDLER J: That’s fine. Okay. I just want to place on record now that at a previous hearing, the date being, that on 28 February the accused appeared before me. He had been given legal aid representation by the State which he refused. Counsel was here and came to tell me that he asked to be excused. He then had his own legal representative, a member of the bar from Kimberley, to appear on behalf of him but that person, that advocate at a stage, after lengthy consultation decided that he was not in a situation to be able to get proper instructions from the accused and he withdrew. The accused was then granted a remand to appoint an advocate of his choice which he wished to do on the understanding that if there was no advocate available today, an advocate which he would obtain, then he would defend himself. It has now reached the stage where this case must continue and proceed and the accused is aware of the situation and he has agreed that he will defend himself and the charge sheet may now be put to him.”
 The Court caused the Appellant to admit that he had undertaken to defend himself in the absence of counsel of his choice. This was obviously incorrect. The matter had been postponed on condition that the Appellant would, in the absence of counsel of his choice, be willing to be defended by counsel provided by the legal aid board. At no stage did he undertake to defend himself. What the Court did flew in the face of its duty articulated by Goldstone J in S v Radebe, S v Mbonani 1988 (1) SA 191 (T) at 196G-I as follows:
“ If there is a duty upon judicial officers to inform unrepresented 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 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 that the absence of legal representation per se or the absence 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.”
 The same duty was again explained as follows by Goldstein J in S v Mbambo 1999 (2) SACR 421 (W) at 426:
“It is quite clear that where an accused faces a charge involving life imprisonment, as the present accused did, that sentence is one which ‘could be materially prejudicial’ to him and therefore that he ‘should be informed of the seriousness of the charge and of the possible consequences of a conviction.’ Furthermore a charge of rape involving a child of nine and medical evidence as this one did is in my view sufficiently complicated and serious to warrant the accused being encouraged to exercise his right to legal representation. Thus there can be no doubt that, applying the dicta, the accused ought to have been informed at least of the fact that he was faced with a possibility of a minimum sentence of life imprisonment and further that he ought to have been encouraged to obtain legal representation.”
It is unfortunate that the Court made no effort to inform or remind the Appellant of the seriousness of the charges that he was facing and that count 1 may, in the event of a conviction, merit life imprisonment in terms of the provisions of the Criminal Law Amendment Act 105 of 1997. The Court did not encourage the Appellant to enlist services of a legal representative. On the contrary, he was effectively discouraged from doing so on the basis of a non-existent undertaking. Furthermore, the Court solicited the Appellant’s consent to the alleged prior agreement to defend himself if counsel of his choice were not present. Consequently, the Appellant defended himself to his detriment.
 The Court seems to have assumed that the Appellant did not want to be legally represented, which is a dangerous practice as was correctly observed by Dlodlo AJ in S v Solomons 2004 (1) SACR 137 (C) at 141e-f that:
“ It would be an extremely dangerous practice for courts to ‘assume’ that an accused person does not want to be legally represented. On the contrary, the court must be satisfied that the accused person’s choice to undertake his defence is indeed an informed decision.”
One would have expected of the Court to satisfy itself that the Appellant’s decision to defend himself was an informed decision and to at least seek to understand why the Appellant was not, within the period of 18 days over which the matter was postponed, able to enlist services of a legal representative of his choice. Instead, the Court was indifferent. The Appellant’s uncle, who was sitting just outside the courtroom, should have been called to find out from him what progress, if any, had been made in trying to enlist services of counsel of the Appellant’s choice. If it were then to be clear that it would not be possible to engage a legal representative of the Appellant’s choice within a reasonable time, to then explore the Appellant’s willingness to be assisted by legal aid counsel. The need to look into the latter was even more pronounced since the Appellant had indicated at the commencement of the proceedings that he would be prepared to be represented by legal aid counsel. There was no indication whatsoever that the legal aid board would have been unwilling to make either Mr van Heerden or another legal representative available to represent the Appellant. The Appellant’s right to legal representation provided for in s 35(3)(f) and (g) of the Constitution of the Republic of South Africa Act 108 of 1996, was effectively denied to him. I turn now to consider the assistance which a presiding judicial officer is expected to give to an undefended accused person.
 Before the undefended accused is called upon to plead at least the presiding officer should explain to the accused the essential allegations against him/her. (See S v Simxadi and Others 1997 (1) SACR 169 (C) at 171c-d and S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO 1989 (3) SA 368 (E) at 377E.) This was not done in this matter. The indictment was read to the Appellant and he was called upon to plead without any prior explanation having been given to him regarding what was expected of him when tendering his plea(s). It is an unfortunate omission since a presiding officer is under a broader obligation to assist an undefended accused. This rule was aptly described by Cooper J in S v Rudman supra at 378A-E as follows:
“ At all stages of a criminal trial the presiding judicial officer acts as the guide of the undefended accused. The judicial officer is obliged to inform the accused of his basic procedural rights - the right to cross-examine, the right to testify, the right to call witnesses, the right to address the court both on the merits and in respect of sentence - and in comprehensible language to explain to him the purpose and significance of his rights.
During the State case a presiding judicial officer is at times obliged to assist a floundering undefended accused in his defence. Where an undefended accused experiences difficulty in cross-examination the presiding judicial officer is required to assist him in (a) formulating his question, (b) clarifying issues and (c) properly putting his defence to the State witness.
Where, through ignorance or incompetence, an undefended accused fails to cross-examine a State witness on a material issue, the presiding judicial officer should question - not cross-examine - the witness on the issue so as to reduce the risk of a possible failure of justice.”
 In line with this decision and the preceding remarks, I am of the view that undefended accused persons need to be made aware, at the commencement of the trial in brief and understandable terms, of what it entails to plead either guilty or not guilty to the charge(s) that would have just been explained to them. They have to plead either guilty or not guilty being fully aware of what the elements of the crime they face are, and that if they do not admit any one of them then they are in effect pleading not guilty. The Court must ensure that they are au fait with the options at their disposal. What follows best explains the utmost importance of this explanation.
 When the indictment was put to the Appellant, he said that he was pleading guilty to murder but he had reasons. When asked by the Court what his reasons were, he immediately said that he did not have the intention to kill the deceased. Thereafter, the Court allowed him to disclose more details relating to the incident. I hold the view that immediately it becomes clear that an undefended accused does not admit any one of the elements of the crime he/she is charged with, as it happened in this case when the Appellant said he did not have the intention to kill, the accused person should for all intents and purposes be treated as a person who is pleading not guilty. Accordingly, the Court a quo should have corrected the Appellant’s plea of guilty to murder to not guilty in terms of s 113 of the Criminal Procedure Act 51 of 1977, and indicated to him that he need not say any more than he had already said immediately he denied that he had the intention to kill. The consequence of the Court a quo’s tarriness in this connection was that the Appellant let out more information about his involvement in the crime in ignorance of the fact that he was under no obligation to say any more than he had already said up to the point of not admitting the intention to kill. The Court’s lapse of consciousness of its duty to assist the undefended accused is also apparent from what follows below.
 As the Appellant was giving further details in his plea explanation, relating to the death of the deceased, he, inter alia, said that he suspected that the deceased, who was his girlfriend, was in love with someone else. He had not yet said anything about the shooting and yet the Court said to him: ‘Yes okay, so let’s hear. So you say the reason you shot her was that you thought she was unfaithful to you. Is that right?’ It appears that the Court had assumed that the Appellant had done the shooting. This statement is unfortunately more consistent with a construction that suggests that the Court was eager to have the Appellant admit that he shot the deceased than an innocent construction. It appears that he was being nudged to admit that he had shot the deceased. This undefended accused was not being guided or helped. What follows relates to the right to cross-examine.
 The Court did explain to the Appellant his right to cross-examine the State witness. He was advised to listen very carefully to the evidence because when the witness would have finished giving evidence, he would have the right to ask questions and whatever he disagrees with, he would be free to tell the witness that ‘I think you are wrong, it’s not that, it’s not that, it’s not that, it’s not that.’ Whether this could really be said to be a satisfactory explanation, in a comprehensible language, of the purpose and significance of the Appellant’s right to cross-examine is questionable. There is yet another safeguard to ensure that the accused does challenge material aspects of the State evidence that he disagrees with. That safeguard is the guidance and the help which the Court is enjoined to give to the floundering undefended accused. The Appellant did cross-examine the State witness. The entire cross-examination is reproduced below:
“CROSS-EXAMINATION BY ACCUSED: At the time when you saw a firearm, was I pointing it to the deceased or was I just holding it? --- You did point the firearm at us.
At the time when you said I pointed the firearm at Omolemo, the child, and I pulled the trigger, were you not afraid that I’ll fire a shot at you? --- I was frightened Your Lordship, but I did not have way out.
As you said that the deceased tried to went [sic] pass by me as the other door was tough to open, what happened to the others, those who were in your company? --- The others were seated next to the door and we were behind, far from that door and they went out first.
Which door did they use to go out? --- At the very same door where you were standing.
I have no further questions Your Lordship.
NO FURTHER QUESTIONS BY ACCUSED
HENDLER J: Any re-examination?
NO RE-EXAMINATION BY MS MOGOENG
HENDLER J: Thank you, the witness is excused.”
It is evident from the Appellant’s brief and shallow cross-examination of the State witness that he needed help in the formulation of his questions, the clarification of the issues and in properly putting his version to the state witnesses. He had stated in his plea explanation that he did not have the intention to kill and that the shooting of the deceased was accidental. He did not put this crucial part of his defence to the eye-witness probably as a result of either ignorance or incompetence. Notwithstanding this, the Court did not help him in any manner whatsoever to challenge the version of the State which was to the contrary. Instead, the Court remarked in its judgment to the prejudice of the Appellant that ‘[n]one of those specific allegations were put in question during cross-examination.’
 Furthermore, the Court took the Appellant to task when he was being cross-examined by the Prosecutor about his assumed failure to put some pertinent question to the State witness, whereas he had in fact, albeit in his own layman’s way, challenged that piece of evidence. The relevant exchange is reproduced below:
“Yes when you arrive [sic] at the deceased’s place you shot her. After shooting her you attempted to shoot your child Omolemo. --- I did not try - as I was out of my mind I do not remember pointing a firearm at the child.
HENDLER J: But the witness, you had a chance to question the witness. The witness says you pointed the firearm at the child. You never challenged the witness. --- I did ask that Your Lordship, that at the time when you said I pointed the firearm at the child, where was he.
But you pleaded guilty to attempting to murder the child. --- Because the indictment was saying that I attempted to kill the child and by then I was mixed up. I was out of my mind.
No but you pleaded guilty now, in front of me. --- Yes.”
All this could be understood, perhaps incorrectly, to suggest that the Court was keen to see the Appellant admitting that he was guilty but unwilling to offer him assistance where it was clearly called for. I will now deal with the Appellant’s right to testify and to call witnesses.
 It does not appear from the record that the Appellant’s right to give evidence in his defence was properly explained to him. All that the Court said in this regard was:
“Explain to the witness, to the accused that it is the State case. Now what he told me from there was not evidence. What he said there, was not evidence. He’s now got the chance to come and give evidence for his case.”
One would have expected of the Court at least to explain to the Appellant, inter alia, that he must refute every piece of material evidence given by the State witnesses which he knows to be incorrect, and to assist him to do so within acceptable bounds. Such an explanation should have included his right to call witnesses, if any, in support of his defence or case. As the record shows, the rights of this undefended accused were not explained in a satisfactory manner.
 All of the above essentially explain why this Court set aside the convictions and sentences on the date of hearing. The last issue to be addressed is whether or not this Court should order that a fresh trial be held.
 Ms Mogoeng, for the Respondent, conceded that the appeal be upheld and that the convictions and sentences be set aside. She then applied that an order be made that the matter be tried de novo before a differently constituted Court. (S v Dangatye 1994 (2) SACR 1 (A)). This was opposed by Mr Shapiro, for the Appellant. The authorities that I was able to study (S v Seheri & Others 1964 (1) SA 29 (A) at 36E; S v Thembisile Twopenny T & Others 1981 (2) PHH 179; S v Mayekiso & Others  1 All SA 571 (C); S v Visser & Another (2001) 2 All SA 5 (C); S v Mnguni  2 All SA 519 (T)) reveal that such an order should be made only when all parties to the appeal agree that the accused be tried de novo. The only instance where it is permissible to order that a trial should start de novo without first securing the agreement of the accused is in the case of an automatic review, for obvious reasons. (See S v Lapping  1 All SA 331 (W); S v Mokae  3 All SA 336 (NC)). In the present case, as I have said above, counsel for the Appellant opposed the suggestion that there should be a new trial. In the absence of agreement, by the parties on the issue, the power of this Court to order a new trial in circumstances such as the present appears to be open to doubt. (See S v Xaba 1983 (3) SA 717 (A) at 733G-H). I am yet to find an authority for ordering a new trial notwithstanding opposition by counsel for the Appellant.
 The provisions of s 322(1)(c) of the Criminal Procedure Act 51 of 1977 to the effect that the Court can ‘make such other order as justice may require’ are wide enough to possibly empower this Court to make the order sought by Ms Mogoeng. Furthermore, this matter is basically decided on irregularities which do not really call for the reconsideration of the merits of the case. Notwithstanding these factors, I am satisfied that this is not a case where this Court should, in the absence of agreement between the parties which even if it existed would still not ‘sonder meer toegestaan word nie’ (Seheri supra at 36E-F), effectively debar the Appellant from making representations that he should not be tried afresh which Mr Shapiro submitted to us that the Appellant intended making. The Appellant should also be left free to raise such defence(s) to a new trial as he may wish to raise. It is for this reason that this Court did not order a new trial, thus leaving the matter entirely in the hands of the Director of Public Prosecutions to decide whether or not to try the Appellant afresh.
JUDGE PRESIDENT OF THE HIGH COURT
JUDGE OF THE HIGH COURT
JUDGE OF THE HIGH COURT
DATE OF HEARING : 25 JUNE 2004
DATE OF JUDGMENT : 22 SEPTEMBER 2004
COUNSEL FOR APPELLANT : ADV P.I. SHAPIRO
COUNSEL FOR RESPONDENT : ADV A. MOGOENG
ATTORNEYS FOR APPELLANT : MAGABANE ATTORNEYS
(Ins. by MOIMA LEDWABA & NGOEPE ATTORNEYS)
ATTORNEYS FOR RESPONDENT : THE DIRECTOR OF PUBLIC PROSECUTIONS