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SIHLE MABASO 1st Appellant
NHLANHA MABASO 2nd Appellant
and
THE STATE Respondent
Case No 60/89 - mp
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
SIHLE MABASO 1st Appellant
NHLANHA MABASO 2nd Appellant
and
THE STATE Respondent
CORAM: HOEXTER, SMAL8ERGER, MILNE, EKSTEEN, JJA et NICHOLAS, AJA
HEARD: 9 November 1989
DELIVERED: 26 March 1990
JUDGMENT
HOEXTER, JA ......
2
HOEXTER, JA
This is a criminal appeal pursuant to a special entry. In the Witwatersrand Local Division a Court consisting of VERMOOTEN, AJ and two assessors convicted each of the two appellants of (a) attempted robbery with aggravating circumstances; (b) unlawful possession of a firearm; and (c) unlawful possession of ammunition. In respect of the above convictions each appellant was respectively sentenced to (a) fifteen years imprisonment; (b) twelve months imprisonment; and (c) six months imprisonment. In addition the first appellant was convicted of the murder of one Quirino Anastacio Andrade ("Andrade"). In respect of the last-mentioned convictibn no extenuating circumstances were found and the first appellant was sentenced to death. Upon an application by defending counsel in terms of sec 317 of the Criminal
3
Procedure Act, 51 of 1977 ("the Criminal Code") the learned Judge caused a special entry to be made on the record of the proceedings. On the ground of the alleged irregularity or illegality therein set forth the two appellants appeal to this Court against their convictions and sentences aforesaid.
The main events which led up to the trial in the Court below were the following. In King George Street in central Johannesburg there was a business known as the Montenegro Meat Market ("the butchery"). On the evening of 26 June 1987, and while the butchery was open, it was entered by four men ("the intruders") two of whom were armed with loaded pistols. Inside the building Andrade and one Manuel de Jesus Lopes Cunha ("Cunha") were busy counting money. Shots were fired from both pistols and both Andrade and Cunha sustained fatal gunshot wounds. Andrade was killed outright. Cunha died very shortly
4
afterwards. Immediately after the shooting the intruders fled from the butchery; but they left behind them, lying on the floor of the butchery, spent cartridges which had been ejected from the pistols during the shooting. The policemen investigating the shooting took possession of these cartridges.
Some ten days after the shooting, on 6 July 1987, the first appellant was arrested by the South African Police. In the very early hours of 7 July 1987 the first appellant directed Lieut. de Waal, of the Brixton Murder and Robbery Unit, -and other policemen, to a house in Soweto. There the first appellant pointed out the second appellant and one Zodwa Ngcamu ("accused no 3"). The police arrested the second appellant and accused no 3. The first appellant then directed the party of policemen to Dube Hostel where he pointed out one Bafanyana Mbuyisa ("accused no 4"). The police arrested accused no 4. A little later, but still in the small hours of 7 July 1987,
5
the second appellant took Lieut. de Waal back to the house at which he had been arrested. Lieut. de Waal was the investigating officer in the case and he testified for the State at the trial in the Court below. At the said house, so testified Lieut. de Waal, the second appellant told one Amos to take Lieut. de Waal to a house across the road. Upon his arrival at the latter place, so Lieut. de Waal told the trial Court, a Mrs Paulina Nkosi handed to him a locked cash-box. De Waal then returned to the house at which the second appellant had been arrested, and on the ground in front of the back door he picked up a key. De Waal discovered that the key fitted the lock of the cash-box. Having unlocked the cash-box de Waal found that it contained, inter alia, three firearms. The cash-box was handed in at the trial as exh 1. Still in the early hours of 7 July 1987 the second appellant directed Lieut. de Waal to an address in Soweto where the second appellant pointed
6
out one Sipho Dhlamini ("Dhlamini"), who was also arrested. On the following day (8 July 1987), and in terms of sec 119 of the Act, five men appeared in the Johannesburg Magistrate's Court before an additional magistrate, Mr P J Bredenkamp ("the magistrate"). The five men were the first and second appellants, the third and fourth accused, and Dhlamini. Subsequently the Attorney-General declined to prosecute Dhlamini; and at the trial in the Court below Dhlamini was called as a witness for the prosecution. Both in the Magistrate's Court and at the trial the first and second appellants were the first and second accused respectively, and accused no 3 and accused no 4 were the third and fourth accused respectively. After the matter had been called it was postponed to 9 July 1987 when the prosecutor put three charges to the accused and the magistrate required each accused to plead thereto.
7
In terms of sec 119 of the Act the prosecutor put
the following three charges to the accused
"Count 1 : Attempted Robbery with Aggravating Circumstances.
THAT Accused Nos 1 - 5 as per J15 (hereinafter called the Accused) are guilty of the crime of -attempted robbery with aggravating circumstances as intended in section 1(1)(b) of Act 51 of 1977. IN THAT, upon or about 26 June 1987 and at or near Montenegro Meat Market, King George Street in the district of Johannesburg the
accused did unlawfully assault MANUEL DE JESUS LOPES CUNHA and QUIRINA ANASTACIO ANDRADE, white . males by threatening and shooting
them with firearms and attempted to
take by f orce and violence f rom their possession cash, the amount which is to the State unknown, their property or in their lawful possession, aggravating circum-stances being present IN THAT the accused wielded dangerous weapons, to wit, firearms.
Count 2 : Murder
The said accused are guilty of the crime of MURDER IN THAT upon or about 26 June 1987 and at or near
8
Montenegro Meat Market, King George Street in the district of Johannesburg the said accused did unlawfully and intentionally kill MANUEL DE JESUS LOPES CUNHA who was in life an adult white male by shooting him with a firearm.
Count 3 : Murder ......
The said accused are guilty of the crime of MURDER IN THAT upon or about 26 June 1987 and at or near Montenegro Meat Market, King George Street in the district of Johannes-burg the said accused did unlawfully and intentionally kill QUIRINA ANASTACIO ANDRADE who was in life an adult white male by shooting him with a firearm."
On 9 July and in response to the aforesaid charges the two
appellants pleaded as follows. The second appellant
pleaded not guilty on all three counts. The first
appellant pleaded guilty on count 1 (attempted robbery with
aggravating circumstances); guilty on count 2 (murder of
Cunha); and not guilty on count 3 (murder of Andrade).
Sec 121(1) of the Act provides that where an
9
accused under sec 119 pleads guilty to the offence charged,
the presiding magistrate shall question him in terms of the
provisions of paragraph (b) of sec 112(1). The latter
provisions enjoin the questioning of an accused -
"....with reference to the alleged facts of the case in order to ascertain whether he admits the allegations in the charge to which he has pleaded guilty".
Sec 121(2)(b) provides that if the magistrate is not
satisfied that the accused admits the allegations statéd in
the charge -
".... he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of section 122(1) : Provided 'that an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation."
The pleas of the appellants having been recorded, the
magistrate explained to the first appellant that he would
be questioned -
10
"....in order to determine whether you in fact agree with all the allegations concerning these counts on which you pleaded guilty."
and the magistrate asked the first appellant whether he had
understood the explanation. The first appellant replied
in the affirmative. The magistrate asked the first
appellant whether he was pleading guilty on count 1 of his
own free will and the first appellant replied that he was.
The magistrate asked the first appellant whether he
admitted that on 26 June 1987 he had visited "the
Montenegro Meat Market, King George Street, Johannesburg".
From the answer given it appeared that the first appellant
was unaware of the name of the butchery visited by him.
To this the first appellant added:-
"Your Worship, the problem is, I do not know the name it is obviously this one."
In response to further questions the first appellant stated
that "All of us" went to the butchery; and he explained
that "all of us" comprised -
11
".... myself, that is with the other three accused. Accused 2, 3 and 4. And accused 5 was the driver of the motor vehicle."
The magistrate asked the first appellant why he had gone to
the butchery. The answer was -
"The reason, a black man who is employed at the butchery, who informed us that there is money. That is why we went there your worship."
The magistrate asked the first appellant what had then
happened. The first appellant answered that they had
entered the premises and demanded money. One of the
people in the butchery argued with them, and he (the first
appellant) fired two shots. He did so, he said, because a
Portuguese man in the butchery wanted to stab him with a
knife. He did not know the name of the Portuguese man.
The first appellant said that it had been his intention to
remove cash from the butchery but that in fact no money was
taken. After firing the shots he ran out of the butchery.
The magistrate asked the first appellant whether in firing
12
the shots he had aimed at any particular person. The
answer was:-
"Your Worship, I pointed the fire-arm in the direction of a Portuguese man I am referring to. I do not know if he was hit or shot as such Your Worship."
Having questioned the first appellant in terms of sec
112(2)(b) the magistrate was not satisfied that he admitted
all the ailegations in the charge and accordingly the
magistrate entered a plea of not guilty on count 1. In
respect of count 1 the magistrate recorded the following
formal admissions:-
"In the first place that on the 26 June 1987, accused 1 visited an unknown butchery in Johannesburg. In the second place that the accused had a fire-arm in his possession. In the third place that the fire-arm can be regarded as a dangerous weapon. In the fourth place that accused visited the said butchery with the intention to steal money, from that butchery. In the fifth place that accused 1 threatened people inside the butchery with this fire-arm. That he fired certain shots while aiming at a certain person."
13
The same procedure was followed in respect of count 2.
Having questioned the first appellant in terms of sec
112(1)(b) the magistrate was not satisfied that he admitted
all the allegations in the charge, and accordingly the.
magistrate entered a plea of not guilty cm count 2. In
respect of count 2 the magistrate recorded the following
formal admissions:-
"In the first place that accused 1 visited a certain unknown butchery in the district of Johannesburg on the 26 June 1987. In the second place that accused 1 fired two shots with a firearm at this, the said shots (sic). In the third place when firing these two shots, accused 1 aimed at a certain person. And that, in the fourth place that the said person was a White male."
Thereafter the proceedings before the magistrate were
adjourned until the following day, when the magistrate had
to deal with the first appellant in relation to the
latter's plea of not guilty on count 3. Sec 122(1) of the
Act provides that where an accused under sec 119 pleads not
14
guilty to the offence charged, the court shall act in terms
of sec 115; and that when sec 115 has been complied with,
the magistrate shall stop the proceedings and adjourn the
case pending the decision of the attorney-general. The
first two subsections of sec 115 read as follows:-
"115 (1) Where an accused at a summary trial pleads not guilty to the offence charged, the presiding judge, regional magistrate or magistrate, as the case may be, may ask him whether he wishes to make a statement indicating the basis of his defence.
(2) (a) Where the accused does not make a
statement under subsection (1) or does so and it is not clear f rom the statement to what extent he denies or admits the issues raised by the plea, the court may question the accused in order to establish which allegations in the charge are in dispute (b) The court may in its discretion put any question to the accused in order to clarify any matter raised under subsection (1) or this subsection, and shall enquire from
15
the accused whether an allegation which is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused of that allegation, and if the accused so consents, such admission shall be recorded and shall be deemed to be an admission under section 220."
In response to a guestion by the magistrate the first
appellant replied that he was prepared to disclose the
basis of his defence on count 3. The record reflects the
following exchange between the first appellant and the
magistrate:-
"ACCUSED 1 : Your Worship, I only fired shots and I only killed one person. The other person, I do not know Your Worship.
COURT : Anything else to add?
ACCUSED 1 : That is all Your Worship.
COURT : You say you only killed one person. What do you mean by that?
ACCUSED 1 : I only fired shots in the direction of one person Your Worship."
With the consent of the first appellant the magistrate
proceeded to record the following three admissions in
16
terms of sec 220 of the Act : (1) that on 26 June 1987 the first appellant visited an unknown butchery in Johannesburg; (2) that at the sald butchery he fired two shots at a person; and (3) that the person fired at was a White male.
The magistrate then dealt with the pleas of the second appellant. The second appellant's introductory remarks suggested that, although on the previous day he had pleaded not guilty on count 1, he now wished to plead guilty on that count. Thereupon the magistrate explained to the second appellant that he was under no compulsion whatsoever, to alter his plea; and the magistrate required the prosecutor again to put all three counts to the second appellant. What then happened in relation to counts 1 and 2 is reflected thus in the record:-
17
COURT : Accused 2, do you understand the
first count? ACCUSED 2 : I do Your Worship. COURT : What is your plea to the first
count? ACCUSED 2 PLEADS GUILTY PROSECUTOR PUTS COUNT 2 TO ACCUSED 2 COURT : Do you understand the second count? ACCUSED 2 : I do Your Worship. COURT : What do you plead to it? ACCUSED 2 PLEADS GUILTY."
In the light of what the second appellant said in response
to count 3 when it was put to him, the magistrate entered a
plea of not guilty. In respect of counts 1 and 2 the
magistrate then questioned the second appellant in order to
ascertain whether he admitted the allegations in the
charges to which he had pleaded guilty. In response to
the magistrate's questions the second appellant said that
on 26 June 1987 he was at a butchery in Johannesburg whose
name he did not know. He was armed with a firearm. He
went to the butchery because an employee of the butchery
had told them that there was money there. At the butchery
18
all four accused demanded money. Someone closed the doors of the butchery. The second appellant threatened the people working in the butchery and shots were fired. The second appellant himself fired one shot but without aiming at anyone in particular. The second appellant said that he did not know whether the shot fired by him struck anybody. The second appellant admitted that he visited the butchery with the intention to steal money by force, violence and threats; but in fact he took no money.
Having questioned the second appellant in terms of sec 112(1)(b) the magistrate was not satisfied that the second appellant admitted all the allegations in the charge on count 1; and accordingly the magistrate entered a plea of not guilty on count 1. The magistrate recorded certain formal admissions made by the second appellant in respect of count 1. The same procedure was followed in respect of
19
count 2. Having questioned the second appellant in terms of sec 112(1)(b) the magistrate was not satisfied that the second appellant admitted all the allegations in the charge, and accordingly the magistrate entered a plea of not guilty on count 2. The magistrate also recorded certain formal admissions made by the second appellant in respect of count 2. At the invitation of the magistrate the second appellant disclosed his defence on count 3. The gist of it was that the second appellant had fired only one shot in the butchery.
Having dealt with the pleas of the two appellants the magistrate proceeded to deal in turn with the respective pleas of accused nos 3 and 4 and Dhlamini. As far as accused nos 3 and 4 are concerned, and for the sake of completeness, brief mention may be made of the following. Accused no 3 pleaded guilty on counts 1 and 2 only. Accused no 4 pleaded guilty on count 1 only.
20
Having questioned accused no 3 the magistrate entered pleas of not guilty on both counts 1 and 2; but he recorded as formal admissions against accused no 3 that on 26 June 1987 accused no 3 had gone to the butchery armed with a knife and with intention to steal by violence. Having questioned accused no 4 the magistrate entered a plea of not guilty on count 1; but he recorded as formal admissions against accused no 4 that on 26 June 1987 accused no 4 had gone to the butchery armed with a knife and with the intention of stealing by violence. After he had dealt with the pleas of each of the five accused the magistrate in terms of sec 122(1) stopped the case against the five accused pending the decision of the attorney-general. However, before adjourning the proceedings the magistrate inquired of each of the five accused in turn whether he desired the services of pro deo counsel if the matter should proceed to trial. Both the
21
first and the second appellants informed the magistrate that they would arrange for their own defence counsel.
The trial in the Court below took place at the end of September 1988. There were four accused : the two appellants and accused nos 3 and 4. There were in the indictment not only the three charges (two counts of murder and one count of attempted robbery with aggravating circumstances) to which the accused had pleaded during the sec 119 proceedings in the magistrate's court, but in addition there were charges of one count of unlawful possession of firearms and one count of unlawful possession of ammunition. Each accused pleaded not guilty on all counts. At the trial each of the four accused was separately represented by pro deo counsel. At the conclusion of the State case each accused testified in his
22
own defence.
For purposes of the appeal only a brief recapitulation of the salient parts of the evidence is necessary. The four accused hailed originally from Kranskop in Natal. The two appellants are brothers. One of the State witnesses was Dhlamini, the erstwhile accused No 5 in the sec 119 proceedings. Dhlamini conducted a taxi service in Soweto. His evidence was to the following effect. At about 6 pm on 26 June 1987 the second appellant and accused no 3 came to his home and sought transport to the city. Dhlamini required and was paid a fare of R20. They proceeded in his taxi to a house where the first appellant and accused no 4 were picked up; and then they travelled on to Johannesburg. At the request of the accused Dhlamini dropped his passengers off in the city on the corner of Plein and Wanderers Streets. This is a
23
spot not far distant from the butchery. According to Dhlamini it was then dusk.
The only eye-witness to the shooting in the butchery called by the State was a fifteen year-old girl, Nelia Andrade. She was the daughter of Andrade and the niece of Cunha. On the evening of 26 June 1987 she was in the butchery helping her father and her uncleto count the takings. Due to the shock suffered by her at the time Miss Andrade's recollection of the events in question was, quite understandably, somewhat fragmentary and disjointed. At about 8 pm, and at a time when there were a number of Black male persons in the butchery, she saw one of them approach Cunha. The person in question produced a firearm and he pressed Cunha against a door in the butchery. A shot then went off. According to Miss Andrade her father then tried to arm himself with an iron rod, but before he could manage to do anything he fell to the floor. Miss Andrade then
24
ran out of the butchery and started to scream. She was unable to say how many shots were fired inside the butchery, and she was unable to identify any of the persons who had come into the butchery.
At the time of the shootings two members of the South African Police Force, constables Giliomee and Stapelberg, were on a foot patrol in the vicinity of the butchery. They heard the screams of Miss Andrade; and Giliomee saw four Black men run out of and away from the butchery. Giliomee ran after the fleeing men but was unable to overtake them. Meanwhile Stapelberg had entered the butchery in which he found a distraught Miss Andrade and two men who had been shot. Stapelberg summoned an ambulance and the Brixton Murder and Robbery Unit. A little later Major Eager and other members of the Brixton unit arrived at the butchery. Major Eager testified to the fact that a police sergeant placed the spent cartridges
25
left lying at the scene of the crime into envelopes which were identified and sealed and then removed by Major Eager. On the following day the sealed envelopes were handed by Major Eager to Lieut. de Waal.
Mention has already "been made of the cash-box (exh 1) discovered by Lieut. de Waal. At the trial exh 1 was identified by the State witness Mrs Paulina Nkosi as an article which on a particular night had been entrusted to her safekeeping by the second appellant. Mrs Nkosi said that the appellants lived near her, and that she knew both of them. She put exh 1 under her bed. In the early hours of the very next morning the police arrived at her house in the company of a man called Amos. Mrs Nkosi knew Amos as a person who lodged with the appellants. In response to a question by the police Mrs Nkosi removed exh 1 from under her bed and handed it over to the police.
One of the members of the Brixton Murder and
26
Robbery Unit who accompanied Lieut. de Waal to Soweto in the early hours of 7 July 1987 was Warrant-Officer W A Steyn. W/0 Steyn was called as a State witness. After , the first appellant had pointed out the second appellant, so testified W/0 Steyn, he searched the second appellant and in the latter's trouser pocket he found a keyholder to which a key was attached. W/0 Steyn threw this key, which he identified as exh 2, to the ground. In his evidence Lieut. de Waal identified exh 2 as the key which he picked up in the circumstances already mentioned, and with which he had unlocked exh 1. Lieut. de Waal further testified that the three firearms found by him in exh 1 were respectively: (A) an Astra 9 mm automatic pistol whose magazine contained seven cartridges; (b) a Beretta 6,35 mm automatic pistol whose magazine contained five cartridges; and (c) a Baby Browning automatic pistol with an empty magazine. On 14 July 1987 Lieut. de Waal delivered the
27
three firearms found in exh 1 and the spent cartridges collected on 26 June 1987 at the scene of the crime to a ballistician at the Police Forensic Laboratories. There the cartridges and the firearms were examined and ballistic tests were performed on the firearms. The report incorporating the ballistician's findings is contained in an affidavit (exh "F") which was produced at the trial in terms of sec 212 of the Act. The contents of exh "F" establish that of the spent cartridges in question, two had been fired from the Astra 9 mm automatic pistol and three had been fired from the Beretta 6,35mm automatic pistol.
Lieut. de Waal testified at a comparatively early stage of the trial. From suggestions made to him during cross-examination it became apparent that in due course each accused in turn would testify that while in the custody of the police he had been the victim of assaults
28
and a system of torture by the police; and that he had been induced by police violence and police threats to make those damaging admissions which are reflected in the record of the proceedings before the magistrate.
In order to forestall the line of defence thus foreshadowed counsel for the State called no less than twelve of the thirteen members of the South African Police who had been involved in the arrests of the accused and their subsequent custody. Each of these police witnesses denied that he had taken part in any assault upon or torturing of any of the accused; or that he had witnessed any such thing. The thirteenth policeman concerned was not readily available as a witness for the reason that at the time of the trial he was in prison awaiting execution. In addition to the twelve policemen the State called the magistrate and a Miss Mninga who had been the interpreter during the proceedings before the magistrate.
29
The sec 119 proceedings were electronically recorded. The transcription is a lengthy document running to some 36 pages. It ref lects no complaint by any accused of an assault or any other impropriety by the police. During his evidence-in-chief the magistrate said that if any of the accused had voiced any complaint alleging an assault upon him such would have been reflected in the transcribed record. The magistrate went on to explain that in the case of any complaint (of whatsoever nature) by an accused in such proceedings it was his practice not merely to note the complaint but also to go into the matter. During cross-examination it was put to the magistrate on behalf of the first appellant that the latter had in fact raised the matter of assault, and that thereupon the magistrate had silenced him. This the magistrate denied. Counsel for the second appellant asked
30
the magistrate at what stage of such proceedings it was
customary to inform an accused person of his rights to
legal representation. To this the magistrate replied:-
"Die huidige prosedure is, edele, dat by die eerste verskyning reeds vir 'n beskuldigde meegedeel word dat hy die reg op regsverteenwoordiging het en dat hy so spoedig moontlik moet reëlings tref sou hy regsverteenwoordiging verkies."
In the instant case the magistrate did not so inform the
accused at their first appearance before him on 8 July
1987. Indeed, as the transcript shows, the matter of
legal representation was not broached by the magistrate
until the proceedings were stopped in terms of sec 122(1);
and then in relation to representation at a future possible
trial. The magistrate went on to explain that an
instruction to magistrates to inform accused persons of
their right to legal representation at the time of their
first appearance had been issued only later. It appears
31
that the instruction was issued pursuant to the reporting of the decision in S v Radebe, S v Mbonani ("the Radebe case") 1988(1) SA 191(T).
Miss Mninga told the trial Court that at the time of the appearance of the accused before the magistrate she had been an interpreter in the Magistrate's Court for five years. Counsel for the first appellant put to Miss Mninga that during the proceedings before the magistrate the first appellant in fact complained that he had been assaulted. The witness replied that if the f irst appellant had so complained she would have communicated the complaint to the magistrate.
When the first appellant came to testify he told the trial Court that he knew nothing whatever of the shooting at the butchery on 26 June 1987. He denied that he knew Dhlamini, and he said that Dhlamini was lying. He said that upon his arrest he was taken by the police to
32
Brixton where he was told to undress. Thereafter he was
bound hand and foot to a chair. He was then subjected to
electric shocks and a bag was placed over his head which
prevented him from breathing. He was told that he had
done something wrong at a butchery. His denials were
brushed aside and finally he was driven to make a false
confessiion. He admitted that after his arrest he had
pointed out his fellow-accused, but he explained his
conduct in so doing by saying that the police had
instructed him to take them to any of his friends
any of his friends would do. In regard to what he had
said to the magistrate the first appellant testified:-
"Ek het skuldig gepleit want ek was gesê om dit te sê."
This instruction, so said the first appellant, had been
given to him by a number of policemen including Lieut. de
Waal himself. The first appellant further told the trial
Court that when he began to tell the magistrate of the
33
assault perpetrated upon him at Brixton the magistrate silenced him by saying:-
"...dit is nie vrae wat ek hom moet vra nie."
The second appellant's defence was also a complete denial of the State case against him. He told the trial Court that Dhlamini was unknown to him and that he had first set eyes on Dhlamini at Brixton after his arrest. Upon his arrival at Brixton he was tortured by the police. The police told him that he had committed robbery at a butchery. When he denied this he was bound to a chair and told that the truth would be extracted from him. A bag was placed over his head. He was beaten on the back and he was subjected to electric shocks. When he was on the verge of collapsing the bag was removed, and he was told to confess. At that juncture -
"...het ek erken wat hulle my gesê het." He was then taken to the house in Soweto where he had
34
earlier been arrested. There he was told to produce the firearms -
"...wat jy gebruik by die stamgevegte." According to the second appellant he explained to the police that he himself had none, but that he knew of someone who did in fact have firearms. The police told him to point out this person, and he indicated Amos. The police went off with Amos, and when they returned with Amos they had with them a container which he thought was exh 1. While he admitted that Mrs Paulina Nkosi was known to him the second appellant denied that he had ever entrusted exh 1 to her care. The second appellant likewise denied that W/0 Steyn had found the key, exh 2, on his person. In regard to the proceedings before the magistrate the second appellant testified that the police had forced him to plead guilty.
In their testimony before the trial Court accused
35
nos 3 and 4 likewise denied all knowledge of the shooting
at the butchery on 26 June 1987. Each claimed to have
been assaulted and tortured by the police. Each testified
that the statements made by him at the proceedings before
the magistrate were prompted by the police.
The State witnesses favourably impressed the
trial Court. Of them the trial Judge observed in his
judgment:-
"Hulle het flink en sonder aarseling geantwoord. Kruisondervraging het nie aan hulle geloofwaardigheid afgedoen nie."
The first appellant, on the other hand, was found to be a
singularly unsatisfactory witness. He was disbelieved by
the trial Court and his version was rejected as false.
The trial Court described the second appellant as a
mendacious witness who trimmed his sails to the wind. His
version was also rejected out of hand. The trial Court
was also unfavourably impressed with the testimony given by
36
accused nos 3 and 4; and their versions were likewise rejected as being untrue.
The convictions and sentences of the appellants in the Court below have already been detailed. It should here be mentioned that accused nos 3 and 4 were dealt with as follows by the trial Court. On the count of attempted robbery with aggravating circumstances each was convicted of attempted robbery without aggravating circumstances; and each was sentenced to five years imprisonment. On the four other counts both accused no 3 and accused no 4 were acquitted and discharged.
In the instant case the attorney-general decided that the four accused should be arraigned in a superior court. Having been advised thereof the magistrate in. terms of sec 122(3) (b) of the Act committed the four accused for a summary trial before the Supreme Court. In such a case, where an accused under sec 119 has pleaded not
37
guilty to the offence charged, sec 122(4) provides that:-
"The record of the proceedings in the magistrate's court shall, upon proof thereof in the court in which the accused is arraigned for summary trial, be received as part of the record of that court against the accused, and any admission by the accused shall stand at the trial of the accused as proof of such admission."
In the Court a quo the record of the proceedings in the
magistrate's court was proved and received as part of the
record of the trial Court. For the sake of brevity I
refer to the record of the proceedings in the magistrate's
court as "the sec 119 record." It is not a matter f or
surprise that in the Court a quo the sec 119 record played
a crucial role both in the cross-examination of the accused
and, to the extent to which each of the four accused was
found guilty in respect of some of the counts, also in the
trial Court's reasons for the convictions. On the other
hand there was before the trial Court an impressive body of
evidence against the accused quite exterior to the sec 119
record and so much of the cross-examination of the accused
38
as was based thereon. The evidence adduced at the trial has already been reviewed. In my view the trial Court properly accepted the testimony of witnesses such as Const Giliomee, Lieut. de Waal, W/0 Steyn, Mrs Nkosi and Mr Dhlamini. To the testimony of such witnesses must be added the damning ballistic evidence. The latter was never challenged, let alone controverted. The picture which then emerges is this. On the night of the shooting and shortly before it, a taxi conveyed four men from Soweto to a place in Johannesburg close by the butchery. The taxi-driver identified the four men as the four accused. Immediately after the shooting at the butchery four Black men were seen fleeing from it. When some ten days after the shooting the first appellant was arrested, he led the police to three other men. These were his fellow-accused. Two f irearms were used in the shooting at the butchery. Ten days later those
39
firearms were found in a locked cash-box which shortly
before the second appellant had entrusted to the care of
Mrs Nkosi. A key which fitted the lock in the cash-box was
found in the possession of the second appellant. The
second appellant it was who led the police to the taxi-
driver who identified the four accused as his passengers.
At the conclusion of the trial the trial Judge
noted upon the record the following special entry:-
"Op aansoek van die vier beskuldigdes maak ek ingevolge artikel 317 van Wet 51 van 1977 'n spesiale aantekening op die oorkonde met die volgende bewoording:
'Die verhoorregter het verkeerdelik beslis dat die pleitverrigtinge voor die landdros, bewysstuk B, nie tersyde gestel moes geword het nie'. Vir daardie doel word verlof aan die vier beskuldigdes toegestaan om te appelleer na die Appelafdeling."
All four accused noted an appeal to this Court.
The appeals by accused nos 3 and 4 were formally withdrawn
on 31 October 1988.
40
In this Court the first appellant was represented pro deo by Mr van Wyk and the second appellant pro deo by Miss Fouche. Substantially the same arguments were advanced on behalf of both appellants. The main contention raised was based on the fact that the magistrate had failed to inform the appellants of their right to legal representation during the sec 119 proceedings. The argument was that because the accused were unrepresehted lay persons the magistrate had a judicial duty, at the outset of the sec 119 proceedings, to explain to them their right to legal representation. It was said that the non-observance of his duty represented a gross irregularity vitiating the entire plea proceedings before the magistrate, with the consequence that the trial Court had erred in failing to "set aside" the plea
41
proceedings before the magistrate. Shorn of the damaging admissions by the appellants reflected in the sec 119 record, so the argument proceeded, the evidential material before the trial Court was insufficient to sustain the convictions of the appellants. Then it was urged that after the magistrate had entered pleas of not guilty and thereupon proceeded to deal with the appellants under the provisions of secs 122(1) and 115, he committed a further irregularity by failing to explain to the appellants: (1) that they were not obliged to answer questions; (2) what the legal effect of formal admissions by them would be; and (3) that there was in fact no obligation upon them to make any admissions. Lastly it was argued that the magistrate had acted irregularly by questioning the appellants in an oppressive and unfair fashion. It is convenient to dispose at once of this last argument. In my opinion it has no merit. An examination of the sec 119
42
record reveals, so I consider, that the magistrate discharged his duties conscientiously and that he questioned the appellants fairly and dispassionately.
As a prelude to the prosecution of an accused in the Supreme Court the Criminal Code prescribes certain proceedings in the magistrate's court to which reference may be made as "the pre-trial procedure". Chapter 19 of the Act (which embraces secs 119, 120, 121 and 122) provides for the taking of a plea in the magistrate's court on a charge justiciable in a superior court. The pre-trial procedure is initiated by the lodging of a charge-sheet with the clerk of the court (sec 120). Sec 119 provides that when an accused appears in the magistrate's court and the alleged offence may be tried by a superior court the prosecutor may, on the instructions of the attorney-general, put the charge to the accused, whereupon, subject to secs 77 and 85 -
43
" the accused shall be required by the
magistrate to plead thereto forthwith."
Where an accused under sec 119 pleads guilty to the offence
charged sec 121(1) provides that the magistrate -
".... shall question him in terms of the provisions of paragraph (b) of section 112(1)."
Sec 112 falls under Chapter 17 of the Act which prescribes
the procedure governing a plea of guilty by an accused at a
summary trial. Sec 112(1)(b) enjoins the magistrate,
inter alia, to -
"....question the accused
with reference to the
alleged facts of the case in order to
ascertain
whether he admits the allegations in the charge
to
which he has pleaded guilty "
I revert to Chapter 19 of the Act. If after questioning
the accused the magistrate is satisfied that the accused
admits the allegations in the charge sec 121(2)(a) provides
that the magistrate shall stop the proceedings; and,
in terms of sec 121(3), adjourn the proceedings
pending the decision of the attorney-general. If the
44
magistrate is not satisfied that the accused admits the
allegations in the charge, sec 121(2)(b) enjoins the
magistrate to record in what respect he is not so
satisfied, and to enter a plea of not guilty. Sec
121 (2)(b) further bids the magistrate to deal with the
accused in terms of sec 122(1):
"Provided that an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation."
Sec 122(1) provides that where an accused under sec 119
pleads not guilty the court shall act in terms of sec 115;
and that when section 115 has been complied with, the
magistrate shall stop the proceedings and adjourn the case
pending the decision of the attorney-general. Sec 115
falls under Chapter 18 of the Act which prescribes the
procedure governing a plea of not guilty at a summary
45
trial. The provisions of the first two subsections of sec
115 have been quoted earlier in the judgment. For the
sake of convenience I quote here sec 115 in full:-
"(1) Where an accused at a summary trial pleads not guilty to the offence charged, the presiding judge, regional magistrate or magistrate, as the case may be, may ask him whether he wishes to make a statement indicating the basis of his defence.
(2) (a) Where the accused does not make a, statement under subsection (1) or does so and it is not clear f rom the statement to what extent he denies or admits the issues raised by the plea,
the court may question the accused in
order to establish which allegations in the charge are in dispute.
(b) The court may in its discretion put any guestion to the accused in order to clarify any matter raised under subsection (1) or this subsection, and shall enquire from the accused whether an allegation which is not placed in issue by the plea of not guilty, may be recorded as an admission by the accused of that allegation, and if the accused so consents, such admission shall be recorded and shall be deemed to be an
46
admission under section 220.
13) Where the legal adviser of an accused on behalf of the accused replies, whether in writing or orally, to any question by the court under this section, the accused shall be required by the court to declare whether he confirms such reply or not."
The purpose of the pre-trial procedure, the rights of an accused thereunder, and the status and evidential cogency of admissions made by an accused in the course thereof have been considered in a number of decisions by this Court. See S v Seleke en h Ander 1980(3) SA 745 (A); S v Sesetse en h Ander 1981(3) SA 353 (A); S v Daniels en h Ander 1983(3) SA 275(A); S v Nkosi en h Ander 1984(3) SA 345(A).In the last-mentioned judgment this Court stressed the significant difference between the respective situations of (1) an accused who, having pleaded
47
not guilty in sec 119 proceedings, is questioned as to the basis of his defence under sec 115 and (2) an accused who, having pleaded guilty under sec 119, is questioned in terms of paragraph (b) of sec 112(1). It was held that in the latter situation it is unnecessary for a magistrate to advise the accused of his right to remain silent. The reason is that by his plea of guilty the accused has admitted the whole of the State's case. Any warning to the accused at that stage, so it was held, would be contrary to the spirit of sec 119 read with secs 121(1) and 112(1)(b); and it would be calculated to thwart its object.
At this juncture something must be said of the duty of a judicial officer presiding at criminal proceedings to explain to an unrepresented accused his right to legal representation. Our common law recognises as fundamental the right of the individual to legal advice
48
and to legal representation. The history of the right at
common law to legal representation was referred to in S v
Wessels and Another 1966(4) SA 89(C). See also the fuller
discussion in S Selikowitz's article Defence by Counsel in
Criminal Proceedings under South African Law 1965/1966 Acta
Juridica 53. Statutory recognition of the right was
contained in sec 65 of a Proclamation issued by Lord
Charles Somerset on 2 September 1819 (see S v Wessels
(supra) at 92C), and it was again recognised in sec 218 of
the Criminal Procedure and Evidence Act, 31 of 1917, which
provided that:-
"Every person charged with an offence is entitled to make his defence at his trial and to have the witnesses ' examined or cross-examined by his counsel, if his trial is before a superior Court, or by his counsel (if any) or his attorney or law agent, if the trial is before an inferior court."
Sec 73 of the Criminal Code provides:-
"73 (1) An'. accused who is arrested,
whether with or without warrant, shall, subject to
49
any law relating to the management of prisons, be entitled to the assistance of his legal adviser as from the time of his arrest.
(2) An accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any law prohibited from appearing at the proceedings in guestion.
The Criminal Code of 1917 contained no provision
corresponding to sec 73(1) of the present Criminal Code.
The right is, however, a basic and fundamental one. See Mandela v Minister of Prisons 1983(1) 938(A) at 957 D/G. Sec 73(1) entails that an arrested person should have access to his legal adviser and the opportunity of consulting with him privately and confidentially. The right has been cut down on occasion in legislation othsr than the Criminal Code, but the general principle is clear
50
and well-established.
Subsec (2) of sec 73 corresponds to sec 218 of the 1917 Criminal Procedure Act, with the difference that whereas sec 218 provided for representation of a person charged with an offence only "at his trial", sec 73(2) entitles him to representation "at criminal proceedings." In terms of sec 1 of the Criminal Code "criminal proceedings" includes a preparatory examination under Chapter 20, but the expression is not otherwise defined. Broadly speaking,the expression would include not only criminal trials but any proceedings in a criminal case, including preliminary and incidental hearings such as applications for bail and remands. It is not open to question that proceedings under Chapter 19 of the Criminal Code are "criminal proceedings" within the meaning of sec 73.
Plainly sec 119 proceedings are pre-trial
51
proceedings in a criminal case. In terms of sec 120 "the proceedings" (i e the proceedings referred to in sec 119) "shall be commenced by the lodging of a charge sheet with the clerk of the court in question."
The right of an accused to be represented at such proceedings is recognised by sec 122(1), which requires the magistrate, where the accused pleads not guilty, to act in terms of sec 115, which in turn refers (in subsec (3)) to a legal adviser.
It is clear, therefore, that in the present case each of the four accused had a right to be represented by his legal adviser at the sec 119 proceedings. However, none of them exercised that right. In S v Baloyi 1978(3) SA 290(T) at 293, MARGO, J observed, in a passage which was approved by this Court in Volschenk v S A Geneeskundige en Tandheelkundige Raad 1985(3) SA 124(A) at 140 I, that where an accused does not seek legal representation and where no
52
irregularity occurs by which he is deprived of it, there is
no principle of law or practice which vitiates the
proceedings. That is the general rule, but there is a
gloss upon it : a judicial officer presiding at criminal
proceedings hás a duty to inform an unrepresented accused
of his right to legal representation, and his failure to do
so may lead a court of appeal to conclude that there has
been a failure of justice and that the conviction should be
set aside.
While the existence of the right to legal
representation has always received wide recognition in
South Africa, it has been correctly pointed out that until
the recent past -
"The content given to this
right by the courts,
however, has been largely negative. It has
been
expressed as a right not to be deprived of
legal
representation rather than a right to demand
legal
representation (S v Wessels 1966(4) SA 89
(C); S v
Blooms 1966(4) SA 417(C); S v Ngula
1974(1) SA 801 (E);
S v Mkize 1978(3) SA 1065
(T); S v Baloyi 1978(3) SA
290 (T)
53
The courts have not insisted that
judicial
officers inform unrepresented accused of their
right
to representation or ask them whether they
wished to be
represented. Neither has there
been any obligation on judicial
officers to ask
unrepresented indigent accused whether they
wish
to apply for legal aid and, if so, to explain to
them how
to go about it "
(The right to counsel : recent developments in South
Africa, Evadne Grant, SACJ (1989) 2 at 48/9).
Judicial recognition of the positive content of the right to legal representation was given by the decision of the Transvaal Full Bench in the Radebe case (supra). The judgment of the Court was delivered by GOLDSTONE, J. The learned Judge pointed out (at 194 G/H) that for many years our Courts have insisted that unrepresented accused be told of their rights and, insofar as may be practicable, should be assisted by the presiding judicial officer. Having cited examples of this salutary practice GOLDSTONE, J referred (at 195B) to:-
" a general duty on the art of judicial
54
officers to ensure that unrepresented persons fully understand their rights and the recognition that in the absence of such understanding a fair and just trial may not take place."
Later in his judgment (at 196 F/I) GOLDSTONE, J went on to
say:-
"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 the 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 onlybe 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
55
suggested legal 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 peculiar circumstances."
With these observations I entirely agree.
Since the Radebe case the plight of the indigent. unrepresented accused has come under close scrutiny in a number of decisions in Provincial Divisions dealing with reviews or appeals from convictions in the magistrate's court. See, for example, S v Khanyile and Another 1988(3) SA 795(N); S v Rudman; S v Johnson; S v Xaso; Xaso v van Wyk NO 1989(3) SA 368(E); S v Davids; S v Dladla 1989(4) SA 172(N); S v Mthwana 1989(4) SA 361(N). The last-mentioned four decisions, which are far from being harmonious, focus mainly on the problem whether in addition to explaining to an unrepresented accused his legal right to representation it is further incumbent upon a magistrate to take steps towards securing such
56
representation for an indigent accused. This is not an issue which arises in the present appeal and it is unnecessary to venture any opinion as to the correctness of any of the sharply divergent views expressed in the said decisions.
In the sec 119 proceedings in the present case the accused were not told before they were called upon to plead that they had a right to legal representation. The first reference made by the magistrate to legal representation was just before he adjourned the proceedings pending the decision of the attorney-general : he asked the accused whether they desired the services of pro deo counsel if the matter should proceed to trial. Both of the appellants replied that they themselves would arrange for counsel. (In fairness to the magistrate it should be mentioned that prior to the Radebe case there was no reported decision which laid down specifically that a
57
judicial officer was under a duty to inform an unrepresented accused that he had a right to legal representation; and the Radebe case was reported months after the sec 119 proceedings had been concluded. It follows therefore that no blame is imputable to the magistrate.)
Where a general duty rests upon a judicial officer to inform an unrepresented accused that he has a right to be legally represented the failure to discharge that duty does not inevitably involve the commission of an irregularity in the judicial proceedings involved. Whether or not an irregularity has been committed will always hinge upon the peculiar facts of the case; and it need hardly be said that much depends upon the extent of the accused's own knowledge of his rights. S v Lwane 1966(2) SA 433(A) dealt with the duty of a judicial officer to explain to a witness his privilege in relation to self-
58
incrimination. Bearing in mind that distinction the fol-
lowing observations of OGILVIE THOMPSON, JA (at 440 G/H)
are nevertheless pertinent also to the duty of a judicial
officer to inform an unrepresented accused of his right to
representation. Having stressed that the practice of
warning a witness against self-incrimination was a well-
estabished one, the learned Judge of Appeal expressed the
view that the duty so resting upon a judicial officer was
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