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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: A4656/2013

REVIEW NO: 2013000247

DELIVERED ON: 24 JULY 2014

In the matter between

UNATHI SODEDE                                                                                                        Accused

And

THE STATE                                                                                                            Respondent

Automatic review – s304 of Criminal Procedure Act – Right to a fair trial – court failing to assist or direct that assistance be given to unrepresented accused to secure attendance of defence witness – failing to comply with rules of judicial practice evolved to protect interests of unrepresented accused – gross irregularity in the proceedings – conviction set aside.

REVIEW JUDGMENT

GOOSEN, J.

[1] This matter came before this court by way of an ordinary review in terms of section 304 of the Criminal Procedure Act, 51 of 1977. The accused was unrepresented at trial and was convicted of a breach of a protection order made in terms of the Domestic Violence Act, Act 116 of 1998. He was sentenced to undergo 24 months imprisonment. When the matter came before me on 17 July 2014 an order was immediately issued directing that the accused be released from custody unless detained on another charge. The review judgment setting out the reasons was to follow in due course. These then are the reasons.

[2] When the matter was first submitted on review it came before Pickering J on 19 December 2013.  The learned judge pointed out that some of the accused’s questions put to the complainant were not interpreted. It was requested that the record be rectified and that it urgently be resubmitted on review. The matter again came before Pickering J on 7 March 2014. On that occasion the learned judge pointed out that the record was still incomplete since the list of previous convictions proved at trial as Exhibit A was missing. The learned judge also raised the following query:

The accused insisted he wanted to call his grandmother as a witness. Why did the prosecutor refuse to assist in this regard? Why did the magistrate not instruct the police to assist? How was the accused expected to arrange for the presence of his grandmother when she couldn’t walk and he was in custody? Has this not affected his right to a fair trial?

[3] According to the most recent letter resubmitting the review, dated 30 June 2014 and received by the registrar of this court on 16 July 2014, the SAP 69 setting out the accused’s previous convictions has to be requested from the Criminal Records Office in Pretoria. For this reason it is not supplied. In respect of the query raised by Pickering J, the magistrate says the following:

Concerning the remark on the grandmother of the accused who was not summonsed for court. It transpired out of record that the grandmother who was sickly at the time and couldn’t walk was hospitalized and was not possible, for her to attend court proceedings (sic).

[4] There is no answer furnished to the specific queries raised by Pickering J. The reference to “out of record” seems to suggest that this was information which came to the attention of the magistrate outside of the proceedings, although its source is not identified. Nor is it indicated when this occurred.

[5] What the record of proceedings does indicate is the following:

COURT: Do you intend calling your grandmother? What is she going to tell us?

ACCUSED: I requested my grandmother to come and witness. My grandmother will come and speak nothing else other than the truth about me and it is always advising me not to come closer to these people.

COURT: Do you think she saw what happened that day if she was in another bedroom? Answer the question? When can she be available then to court?

ACCUSED: She won’t be available during the course of the week.

COURT: We can’t bring her, she is your witness.

ACCUSED: My grandmother has got a problem with his feet, unless otherwise someone can bring her with a car.

COURT: You cannot be assisted on that, you have to bring your witness to court. Do you still want to call her?

ACCUSED: Yes.

COURT: When can she be available?

ACCUSED: During the course of the week.

COURT: When?

ACCUSED: Maybe Wednesday.

COURT: I will give it a final remand I won’t postpone it again for your witness. You are remanded in custody to 20 November 2013. It is a final remand. Thank you, sir, you may step down.

PROSECUTOR: Your Worship, the State… (inaudible) since the accused is… (inaudible), the State is not going to assist the accused in bringing his witness.

COURT: That is what I told him, that he must come with his witness himself.

[6] The matter was then remanded to 20 November 2013. On that occasion the following is recorded on the record.

COURT: Where is your witness?

ACCUSED: Because of the fact that I was in West Bank, I couldn’t talk to her.

COURT: You knew that when we remanded the case, you said you wanted her. So what do you want us to do? I will not postpone the case again. The case was given a final remand for your witness. What you want us to do, are you closing your case, what you want us to do?

ACCUSED: I request the court to proceed with the matter without the witness.

COURT: Thank you, sir.

[7] The accused was unrepresented. He was also in custody, hence the reference to being “in West Bank” - Fort Glamorgan Prison. The passages from the record quoted above reflect, in my view, a profound failure on the part of the magistrate to render appropriate assistance to an unrepresented accused to secure the attendance of the witness the accused wished to call in his defence.

[8] In S v Selemana 1975 (4) SA 908 (T) it was stated (at 909A–B) that:

The magistrate must be exceptionally careful when refusing to allow an accused to call a witness. In particular, when the accused is unrepresented, the magistrate, before refusing such a request, should make certain that such a witness cannot possibly give relevant evidence. If the court is not careful to observe this obligation, a miscarriage of justice may result: S v Tembani 1970 (4) SA 395) (E). Indeed, the denial of such an opportunity is in itself a gross irregularity in the proceedings: District Commandant, South African Police, and Another v Murray 1924 AD 13 at 18; S v Vezi 1963 (1) SA 9 (N) at 12.

[9] See also S v M 1990 (2) SACR 131 (B). In S v Rudman; S v Johnson; S v Xaso; Xaso v Van Wyk NO and another 1989 (3) SA 368 (E) the Full Bench of this Division dealt in considerable detail with the rules of judicial practice which have been evolved to ensure that an unrepresented accused is accorded a fair trial. It is not necessary to repeat that here. It suffices to emphasise the point made in that judgment at p379, namely that:

From this brief review of the rules of practice which have been evolved by the South African judiciary it is apparent that the presiding judicial officer in the trial of an undefended accused is required to take a more active part than a judicial officer is permitted in the orthodox accusatorial system, thereby, in some measure, redressing the disadvantage the undefended accused may suffer from the lack of legal representation. The value to an undefended accused of, and the benefit he derives from, judicial assistance emphasises the importance of an unfaltering judicial observance of the rules of practice intended for the protection of the undefended accused, but in no way minimises the importance of legal representation.

[10] The Rudman judgment was delivered before the enactment of the Constitution. The right to a fair trial is now embodied as a fundamental right in section 35. In terms of section 8(1), the Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. The overriding obligation which rests, inter-alia, upon the judicial officer is to ensure that an accused person receives a fair trial. That requires that an unrepresented accused person be afforded proper assistance in the conduct of his or her defence. This includes, where circumstances require it, that he or she be materially assisted to procure the attendance of a witness whom he or she wishes to call.

[11] Both the magistrate and the prosecutor knew that the accused was in custody. They knew too that the witness was indisposed and that she would require assistance to attend court. By adopting the attitude that no assistance would be rendered by the prosecution, or even by the court, the court effectively precluded the accused from calling a witness. That constitutes a gross irregularity which vitiated the fairness of the trial. In the circumstances the conviction must be set aside.

[12] In the light of the basis upon which the conviction is set aside the Director of Public Prosecutions may consider re-instating the charges against the accused. When doing so consideration must be given to the fact that the accused was in custody prior to his conviction and since his conviction has already served a period of approximately eight months imprisonment.

[13] I make the following order:

The conviction of the accused is set aside by reason of gross irregularity in the proceedings.

G. GOOSEN

JUDGE OF THE HIGH COURT

 

PLASKET, J.

 

I agree.

 

C. PLASKET

JUDGE OF THE HIGH COURT

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