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CA NO. 29/2002

IN THE HIGH COURT OF SOUTH AFRICA

BOPHUTHATSWANA PROVINCIAL DIVISION

THE STATE

VS

JORDAAN M. SMITH

REVIEW

Pako AJ: The accused stood trial at the magistrate’s court on a charge of housebreaking with intent to steal and theft. He pleaded guilty. He was convicted and sentenced to pay a fine of R600-00 or in default of payment to serve a six months term of imprisonment. The case came before me on automatic review in terms of section 302(1) (a) (i) of Act 51 of 1977.

I raised the following questions for the response of the presiding officer:-

“Why were the rights to legal representation not explained to the accused? If they were explained, why the record does not reflect that they were explained and how were they explained?”

According to the reply from the presiding officer the accused appeared for the first time in court on the 14 February 2002 before the magistrate Mr De Klerk. When the accused later appeared before the presiding officer, the presiding officer noticed an entry on the record to the effect that “the accused will defend himself”.

This means that the record must indicate how the rights were explained and whether the accused understood the explanations or not. In this regard see S v Moos (supra) at 379 i-j; S v Modiba 1991(2) SACR 286(T) at 286 (i), and S v Mgadi (supra) at 153 c-f. According to Nicholas, AJA, in S v Daniels en ’n Andere 1983(3) SA 275(A) at 299 G-H, the fact that the accused’s procedural rights were explained to him must appear from the record, “in such a manner as, and with sufficient particularity, to enable a judgment to be made as to the adequacy of the explanation”. The case of Daniels was dealing with procedural rights relating to section 115 of Act 51 of 1977. But I can conceive of no reason why the right to legal representation should also not be so recorded.

Some magistrates’ courts, within the jurisdiction of this court, have adopted a standard practice of using a standard form for the purpose of informing the accused of the right to legal representation, and for the presiding officer to note on the record that this has been done. This practice seems to me to be the best and it saves time, especially for the magistrates who still record the proceedings by hand.

It is clear from the presiding officer’s response that he did not inform the undefended accused of his constitutional right to legal representation, and of institutions which may provide him with legal representation free of charge. It is also clear that he did not even inquire from the accused whether the previous magistrate (Mr De Klerk) informed him of this basic right. In my opinion the presiding officer, under those circumstances, ought to have personally explained these constitutional rights to the accused. He erred by assuming that these rights were explained in full, that the accused even understood the explanation and that the accused then elected to conduct his defence.

The question is what effect will this failure, to inform the accused of his right to legal representation, have on the proceedings.

A failure on the part of the presiding officer to inform an unrepresented accused of this right, depending on the circumstances of a particular case, may result in an unfair and a complete failure of justice. (See all the cases cited supra, especially S v Radebe at 196 H-I). There is no doubt that there is an irregularity in this case. Is this irregularity such that the conviction must be set aside or not?

Failure of justice which justify the setting aside of the conviction, is where there had been “actual or substantial” prejudice to the accused. (See S v Ramolope 1995(1) SACR 616(A) at 621 f-g and Hlantlalala and Others (supra)_ at 545 i-j).

If the accused would in any event have been convicted, irrespective of the irregularity, there will be no prejudice. This can happen where the accused, after realising that he has no real defence, pleaded guilty. This can also happen where the offence was a comparatively trivial one. (See S v Davids, S v Dladla 1989 (4) SA 172 (N) at 195 H-J and 196 A).

In the present case the accused pleaded guilty from the outset. In response to questions in terms of section 112(1) (b) of Act 51 of 1977 the accused said he was arrested by Chubb Security Officer when he was walking out of the premises where he committed the offence. This justifies the drawing of an inference that the only reason why the accused pleaded guilty is because he realised that he has no real defence. In my view the offence which the accused committed is comparatively trivial. He did not cause any physical damage to gain entry into the premises and building. He stole only three plastic chairs.

In view of the afore-going stated legal position, I am of the view that the presiding officer’s failure to inform the accused of his rights to legal representation, did not result in an unfair and complete failure of justice.

The proceedings are therefore in accordance with justice. The conviction and sentence are confirmed.

O.A. PAKO

ACTING JUDGE OF THE HIGH COURT

I agree

M.W. FRIEDMAN

JUDGE PRESIDENT OF THE HIGH COURT

DATED: 16 MAY 2002

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