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”.

According to the presiding officer he regarded this entry as proof that “the accused’s rights to legal representation were explained to him in full, he understood and he elected to conduct his own defence”.   He says this is the reason why he proceeded with trial without making any inquiries from the accused.

The question is:- does this statement that “the accused will defend himself” prove beyond doubt that the rights to legal representation were indeed explained to the accused?  The statement may have been recorded as a result of the accused’s response to a question or statement put to the accused by Mr De Klerk.  The question or statement put to the accused may not necessarily relate to an explanation of rights to legal representation.   For example, the statement may have been recorded as a result of this question:- “At the commencement of trial are you going to need any legal representation or are you going to conduct your defence?”  It came to my notice, when reviewing the proceedings of one case, that Mr De Klerk’s services have been terminated.  Mr De Klerk is the only person who could have shed a light on this issue.

A common-law right to legal representation has been given statutory recognition by section 73 of Act 51 of 1977.  This right is entrenched in section 35(3) (f) and (g) of the Constitution Act 108 of 1996.  The accused must be informed of his right to legal representation and of institutions which may provide him with legal representation free of charge.  In this regard See S v Radebe, S v Mbonani 1988 (1) SA 191 (T), S v Khanyile 1988(3) SA 195 (N), S v Moos 1998 (1) SACR 372(c); Hlantlalala and Others v Dyantyi N O and Another 1999(2) SACR 541 (SCA); and S v Mgadi 2000(1) SACR 152 (W).

High Courts have repeatedly stated, that the presiding officer has a duty, not only to explain all the procedural rights and the rights to legal representation to unrepresented accused,  but also to keep a proper record of such explanation.

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