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S v Makhandela (A198/02) [2005] ZAGPHC 20; 2007 (2) SACR 620 (W) (18 February 2005)

IN THE HIGH COURT OF SOUTH AFRICA
(WITWATERSRAND LOCAL DIVISION)

                                                               CASE NUMBER:     A198/02

LUCKY MAKHANDELA                                    APPELLANT

versus

THE STATE                                                     RESPONDENT

_____________________________________________________________________

JUDGMENT DELIVERED ON 18/2/2005
_____________________________________________________________________

WHITING AJ: The appellant stood trial in the regional court in Randfontein. He was the second of two accused who appeared on a charge of robbery with aggravating circumstances. It was alleged that on or about 27 August 1999 and at or near Eureka Cafe in the Randfontein district they robbed Rita and George Pereira at gunpoint of about R4000 in cash. On 1 February 2001 they both pleaded not guilty on the charge and the trial proceeded. On 8 June 2001 they were both found guilty as charged and sentenced to fifteen years’ imprisonment. The appellant (the second accused) has appealed against his conviction and sentence.
         At the trial the first accused was represented by an attorney, Mr Venter, but the appellant was not legally represented. When the appeal was called early last year, the court raised the question whether there might have been a procedural irregularity concerning the appellant’s right to legal representation at his trial at state expense. The hearing of the appeal was postponed so that counsel might prepare and present argument on this question. The resumed hearing has now taken place before a full bench.
         The essence of the procedural question to be considered is reflected in the following extract from the proceedings in the regional court on 16 March 2000:-

‘HOF: En u bevestig dat u reg tot regsverteenwoordiging aan u verduidelik is by die vorige geleentheid en u het toe besluit om u eie verdediging te hanteer?
BESKULDIGDE 2: Nee.
HOF: Het hulle nie aan u verduidelik nie meneer?
BESKULDIGDE 2: Ek het die laaste keer ges| ek wil ’n prokureur h|.
HOF: Wat u self gaan betaal of aansoek of [sic]Regshulp?
BESKULDIGDE 2: Ek gaan regshulp vra.
HOF: Die saak kan dan afstaan.
AANKLAER: Edelagbare, ek weet nie of sy al terug is nie.
HOF: Laat ons die saak maar uitstel vir regshulp.
AANKLAER: Edelagbare, mag ek net gou die klagstaat sien? Dit lyk vir my beskuldigde 2 se regshulp was reeds geweier.
HOF: Meneer, u was volgens die klagstaat, op 10 Februarie was u by die regshulpbeampte waar u aansoek gedoen het vir regshulp en die aansoek om regshulp is geweier.
BESKULDIGDE 2: Ja, dit is die waarheid. Ek wil nou vra dat ek moet net ’n kans gegun word, net ’n kort tydperk om my eie prokureur te gaan kry.
HOF: So gaan u u eie prokureur kry?
BESKULDIGDE 2: Ja.’
The court then postponed the matter, indicating that it was giving the appellant a final chance to obtain an attorney.
         When the trial eventually commenced on 1 February 2001, the prosecutor indicated that the first accused was being defended by Mr Venter, and that the appellant was unrepresented as he had not paid Mr Venter. The appellant then indicated that he would conduct his own defence.
         On the basis of the abovementioned exchanges it is clear that
         (1)      despite the fact that his application for legal aid had to his knowledge
                  apparently already been refused, the appellant still wanted legal                          representation at state expense when he appeared in court on 16 March             2000; but
         (2)      immediately after the presiding magistrate stated without comment                 that his application for legal aid had been refused, the appellant asked                  for an opportunity to engage his own attorney.
         On a realistic appraisal of this sequence of events, the reason for the appellant’s sudden change of heart must have been that, once the presiding magistrate had stated without comment that his application for legal aid had been refused, he believed that the only option left to him was to engage his own representative. Moreover, there is no reason to think that, when the appellant said on 1 February 2001 that he would conduct his own defence, he was not still under the impression that he would not be able to obtain legal representation at state expense. In this regard it should be borne in mind that, when his rights to legal representation were originally explained to him, the appellant would presumably not have been told any more about representation at state expense than that, if he could not afford a legal representative, he could apply to the Legal Aid Board for a legal representative to be appointed to act for him at state expense. Compare s 73(2A) of the Criminal Procedure Act, 1977. The appellant can hardly be expected to have been aware that, despite the fact that his application for legal aid had apparently been refused, he could still seek the assistance of the presiding magistrate to obtain the legal representation at state expense which he desired.
         The Legal Aid Board did not wish to have its own representation at these proceedings. It has, however, provided the court with the following information, which has been accepted by counsel on both sides as correct:-
         (1)      The Board has no record of an application to it by the appellant for              legal representation at his trial.
         (2)      It concludes that it is probable that it never received, and therefore                   never considered, such an application.
         (3)      If such an application had been received, it ought in the ordinary                         course to have been granted.
         It should also be mentioned that it is accepted by both counsel that at the relevant time channels of communication between applicants and the Board were sometimes unsatisfactory. Consequently, it may be that the application which the appellant made for legal aid was, through failure of these channels and without any fault on his part, never actually considered by the Board.
         Before 1994 an accused did not have a right to legal representation at state expense. In practice the pro deo system fulfilled a very important function by providing legal representation at state expense in capital cases. But there was no rule of law requiring pro deo counsel to be appointed, and the failure to appoint such counsel would not in itself have constituted an irregularity which might vitiate the subsequent proceedings. See R v Mati and Others 1960 (1) SA 304 (A) at 306-7; S v Chaane en Andere 1978 (2) SA 891 (A), particularly at 897C; S v Rudman and Another, S v Mthwana 1992 (1) SA 343 (A), where the judicial attempt to broaden and strengthen legal representation at state expense in S v Khanyile and Another 1988 (3) SA 795 (N) was rejected.
         However, with the coming of the new constitutional order there was a fundamental change. Following a similar provision in s 25(3)(e) of the interim Constitution, s 35(3) of the Constitution of the Republic of South Africa (Act 108 of 1996) now provides:-
                  ‘ Every accused person has a right to a fair trial, which includes the          right
                  - - - - - - - - - - - - - - - -
         (f)      to choose, and be represented by, a legal practitioner, and to be
                  informed of this right promptly;
         (g)      to have a legal practitioner assigned to the accused person by the state                  and at state expense, if substantial injustice would otherwise result,          and to be informed of this right promptly.’
These constitutional provisions have been reinforced by amendments to s 73 of the Criminal Procedure Act, 1977, and to the Legal Aid Act, 1969.
         In terms of the Constitution, the appellant thus had the right to legal representation at state expense ‘if substantial injustice would otherwise result’. An accused who wishes to avail himself of this right will in the ordinary course apply to the Legal Aid Board for the appointment of a legal representative to act for him. However, it is clear that it is for the judicial officer presiding at the trial to determine whether ‘substantial injustice would otherwise result’. See S v Vermaas, S v Du Plessis [1995] ZACC 5; 1995 (3) SA 292 (CC) at 299D[1995] ZACC 5; ; 1995 (2) SACR 125 (CC) at 133a. Consequently, where an accused’s application for legal aid has been unsuccessful, it will be the presiding magistrate’s duty to address this question. See Mgcina v Regional Magistrate, Lenasia and Another 1997 (2) SACR 711 (W) at 732h-733a, 734a-f, 735c-d. To discharge this duty he would have to take account of various factors including in particular the seriousness of the offence, the complexity of the case and the capacity of the accused to fend for himself. See the Vermaas case (supra) at 299D-E and 133a-b; Mgcina’s case (supra) at 733d-e.
         In the circumstances of the present case, the presiding magistrate was clearly at fault in not pursuing the question of the appellant’s entitlement to legal aid as soon as it appeared that his application had been turned down by the Board. He should have realised that the appellant was, at least on the face of it, entitled to legal aid. He should immediately have informed the appellant that the fact that his application to the Board had been unsuccessful was not the end of the matter, and he should have explained to him the role which he, the presiding magistrate, had to play. He should not have been diverted by the appellant’s request to be afforded an opportunity to engage his own attorney. He should have realised that this was in all probability not an informed choice by the appellant but was made in the mistaken belief that it was the only option still open to him. The presiding magistrate should clearly also have taken steps to ascertain why the appellant’s application for legal aid had been unsuccessful.
         There can be no doubt about the result which the taking of such steps should have produced. In view of the appellant’s apparent lack of financial resources and the fact that he was charged with an offence for which the presumptive minimum penalty was fifteen years’ imprisonment, no other reasonable conclusion would have been possible than that substantial injustice would result if the appellant were not afforded legal representation at his trial at state expense. Compare Mgcina’s case (supra). The presiding magistrate’s breach of duty thus had the effect of depriving the appellant of the legal representation at his trial to which he was entitled in terms of the Constitution. It is now necessary to consider the effect of this irregularity.
         There are two main categories of irregularity in criminal proceedings. Firstly, there are fundamental irregularities, by which the proceedings as a whole are tainted. These are of such a nature as per se to vitiate the proceedings. More technically, they are seen as per se producing the failure of justice postulated in the proviso to
ss 309(3) and 322(1) of the Criminal Procedure Act. Thus, where there is an irregularity of this kind, the court of appeal will set aside the conviction without having to enquire what the result of the case would have been if the irregularity had not occurred. As there will have been no acquittal on the merits, it will in terms of
s 324(c) of the Act be permissible to retry the accused. See, in particular, S v Naidoo 1962 (4) SA 348 (A) at 354D-F. See also S v Moodie 1961 (4) SA 752 (A) and (when recharged) 1962 (1) SA 587 (A); S v Mkhize, S v Mosia, S v Jones, S v Le Roux 1988 (2) SA 868 (A) at 871G-I and 872G; S v Davids, S v Dladla 1989 (4) SA 172 (N) at 193E-G, referred to with apparent approval in S v Ramalope 1995 (1) SACR 616 (A) at 622b. An illustration is afforded by S v Moodie (supra), where the fact that the deputy sheriff was present in the jury room throughout the jury’s deliberations was held to constitute an irregularity of this kind.
         The second category comprises irregularities of a lesser nature. It is characteristic of these irregularities that they do not taint the proceedings as a whole and it is possible to separate the bad from the good. Such an irregularity will not per se produce a failure of justice, and the court of appeal will have to consider the merits of the case. If it comes to the conclusion that on the remaining evidence not affected by the irregularity there is proof of guilt beyond reasonable doubt, there will have been no failure of justice and it will dismiss the appeal. On the other hand, if it finds itself unable to come to this conclusion, there will have been a failure of justice and it will set aside the conviction. There will then have been an acquittal on the merits, with the result that any attempt to retry the accused will be defeated by a plea of autrefois acquit. A typical example of this kind of irregularity is the admission of inadmissible evidence against an accused. See, in particular, S v Naidoo (supra) at 354F-H, as modified in S v Tuge 1966 (4) SA 565 (A), particularly at 568A-G. See also S v Yusuf 1968 (2) SA 52 (A) at 57A-F; S v Felthun 1999 (1) SACR 481 (SCA) at 485g-486a.
         Counsel for the appellant has contended that the irregularity in the present case was a fundamental one which per se vitiated the proceedings, so that the conviction should be set aside without consideration of the merits. Counsel for the state, on the other hand, has contended that such irregularity as there may have been was one falling within the second category. He has further argued that it did not result in a failure of justice or an unfair trial, and that the conviction should stand.
         As mentioned earlier, before1994 an accused did not have the right to legal representation at state expense. Although such representation was in practice provided in the most serious of cases, the failure to provide it could not be attacked as in itself constituting an irregularity. However, an accused has long had the right to be legally represented at his trial. This right was regarded by the common law as fundamental and was reinforced by statute. See S v Mabaso and Another [1990] ZASCA 24; 1990 (3) SA 185 (A) at 201F. See also s 73 of the Criminal Procedure Act, 1977, following
s 158 of the Criminal Procedure Act, 1955. Before 1994 this meant that he had the right to arrange legal representation for himself without recourse to state funding. There were quite a number of cases in which it was held that the conviction of an accused should be set aside where, through failure to afford him a reasonable opportunity to exercise this right, he had been unrepresented at his trial. A useful list of such cases was provided in S v Mthwana 1989 (4) SA 361 (N) at 366D.
         In the Mthwana case the court saw these cases as involving irregularities of the kind which per se vitiate the proceedings (at 366B-C). But when one looks at the cases themselves, one finds that it was only in a few of them that the court expressly stated that this was the kind of irrregularity involved. For examples of such cases see S v Wessels 1966 (4) SA 89 (C), particularly at 97C-98A; S v Blooms 1966 (4) SA 417 (C), particularly at 420F-421C.
         There are two Appellate Division decisions on the Mthwana list, namely S v Seheri en Andere 1964 (1) SA 29 (A) and S v Shabangu 1976 (3) SA 555 (A). In neither of these cases was there any express categorisation of the irregularity or failure of justice involved. However, it can be said that in both of them the irregularity was by implication regarded as being of the kind which per se vitiates the proceedings. The lack of representation for an accused throughout the proceedings will necessarily mean that the proceedings and evidence as a whole are affected, so that it will not be possible to separate the bad from the good. And, as emphasised in both cases, the court of appeal should not attempt to determine what the result would have been if the accused had been legally represented at his trial. See Seheri’s case (supra) at 36B-C, referring to R v Joannou 1957 (4) SA 385 (FC) at 387; Shabangu’s case (supra) at 558F. As it was put in the Shabangu case:
         ‘The case against the appellant on the merits certainly appears to be    formidable and to have fully justified the conviction. But, on the other
         hand, it is impossible to say what effect a properly conducted defence
         could have had on the ultimate result.’
         Any remaining doubt about the matter can be said to have been removed by S v Dangatye 1994 (2) SACR 1 (A). There the Appellate Division, after setting aside a conviction following an irregularity of the kind under discussion, ordered a retrial. By doing so, it clearly accepted that the irregularity was of the kind which per se produces a failure of justice, for otherwise a retrial would not have been possible.
         Such was the position until 1994. With the coming of the new constitutional order, an accused was for the first time afforded a right to legal representation at state expense, if substantial injustice would otherwise result. This right can be said to have been put on the same footing as his basic right to have his own legal representative, for they were placed alongside each other in the Constitution as being rights included in the right to a fair trial.
         There seems to be no reason why the pre-1994 categorisation of irregularities should not continue to apply in the context of the constitutionally-broadened right to legal representation. Compare S v Shikunga and Another 1997 (2) SACR 470 (NmSC), particularly at 484b-f. Not only does this categorisation emphasise the fundamental nature of the right to legal representation. It also has the practical effect of accommodating the truism that it is impossible to say what effect a properly conducted defence might have had on the result. Moreover, it is based on an interpretation of important provisions of the Criminal Procedure Act, which must continue to be applied. Indeed there have been a number of reported cases since the coming of the new constitutional order in which the courts have continued to apply this categorisation, or the approach it espouses, in the context of the constitutional requirement of a fair trial. See, for instance, Mgcina’s case (supra) at 735c-e; S v Moos 1998 (1) SACR 372 (C) at 383a-f; S v Nkondo 2000 (1) SACR 358 (W) at
360d-g (where a retrial was ordered); S v Mkhondo 2001 (1) SACR 49 (W) at 56e-i and 57d-e.
         In the light of all these considerations it must be held that the irregularity in the present case by which the appellant was deprived of legal representation at state expense at his trial was one which per se produced a failure of justice and an unfair trial. Consequently, his conviction must be set aside without consideration of the merits.
         I am therefore of the opinion that the appeal must be allowed and the conviction and sentence set aside.
         Since writing this judgment, I have had the advantage of reading the judgments prepared by Kriegler AJ and Kuny AJ, in which they each for different reasons reach the same conclusion as I have reached. It seems to me that to characterise the irregularity in the way Kriegler AJ has done is, with due respect, to give only part of the picture. I consider it important to emphasise that the main responsibility for ensuring that the appellant was not denied his constitutional entitlement lay with the presiding magistrate. Here an experienced and conscientious judicial officer appears not to have appreciated what the situation required of him. If he had taken the necessary steps, the effect of the initial error would have been minimal. Both the unfairness and the wastage involved in a trial vitiated by irregularity would have been avoided.

For the appellant:                                           M. Miller

For the State:                                                P. Schutte

Date of hearing:                                             30/7/2004