South Africa: North West High Court, Mafikeng

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S v Mamogopodi (93/02) [2002] ZANWHC 38 (28 November 2002)

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[1] The appellant was convicted in the regional court of the rape of a girl of 8 years of age. He had pleaded not guilty to the charge. Having convicted him the Learned Regional Court Magistrate imposed a sentence of 15 years imprisonment. The appellant has now appealed against the conviction and the sentence.

[2] It was contended in the written and oral submissions that the Learned Magistrate committed a fatal irregularity for having failed to afford the appellant a fair trial, in particular that he failed to explain to the appellant his rights to legal representation, to allow a postponement so as to afford the appellant an opportunity to seek legal representation and to inform him of the possibility of an imposition of a minimum sentence, the import and consequences of such a sentence. These contentions were however not raised as grounds of appeal in the notice of appeal filed of record on 18 September 2000. Mr. Mmolawa, for the appellant, submitted therefore that the conviction and sentence be set aside. Mrs Mogoeng, for the State, conceded that the conviction and sentence should be set aside in consequence of the Learned Magistrate’s failure to warn or inform the accused of his rights.

[3] The appellant was represented by an attorney when the trial commenced on 30 September 1999. The State, having called the complainant and her mother to testify, applied for a postponement to 31 January 2000 for further evidence. When the Court re-assembled on 31 January 2000 the appellant was, ex facie the record of the proceedings, still represented. The matter was postponed further to 17 July 2000. It is however, not clear, at whose instance the postponement was granted.

[4] On 17 July 2000, when the Court re-assembled, the appellant was not represented apparently in consequence of him having failed to pay his attorney’s fees. The appellant was advised by his attorney to apply for a postponement. During Court discussions it emerged that the appellant’s attorney had, on 23 April 2000, withdrawn as an attorney of record for the appellant. The Learned Magistrate expressed his displeasure for the delay in finalising the case. He gave the appellant a tongue lashing for the long time the matter had been on the roll to enable the appellant enough opportunity to bring his legal representative to Court but to no avail. The Learned Magistrate refused the application for a postponement and, without executing his judicial obligations in terms of s 35 (3) (f) and (g) of the Constitution Act 108 of 1996 (“the Constitution”), directed the prosecutor to proceed with the trial.

[5] It is abundantly clear that the Learned Magistrate, when expressing his displeasure, had lost sight of the fact that the appellant had been represented all along, had previously not requested an opportunity to seek legal representative as he had been represented, had not wasted the court’s time in bringing the matter to finality and that the delay, if any, was not of the appellant’s making. Section 35(3) of the Constitution, provides, inter alia, that-

“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; [and]

(g) to have a legal practitioner assigned to the accused person by the State and at the State expense, if substantial injustice would otherwise result, and to be informed of this right.”.

It is manifest from the facts of this case that there has been a constitutional violation of the accused’s rights by the Learned Magistrate. The duty of this Court, in circumstances such as these, is to determine whether substantial injustice may otherwise result if the conviction and sentence are confirmed despite such violations. (S v Du Plessis 1995 7 BCLR 851 (CC)).

[6] It is obvious to this Court that the appellant, because of the severity of the charge, stood to be punished to undergo a long term of imprisonment in terms of the prescribed minimum penalties (s 51 of the of the Criminal Law Amendment Act 105 of 1997). Nico Steytler, Constitutional Criminal Procedure Butterworths, at page 313, states as follows:

“ Where an accused indicates in the absence of the required information that he or she wishes to proceed pro se the waiver of the right to legal aid is constitutionally suspect... But, although there has been a constitutional violation, it is fatal only if the trial results in substantial injustice, for example, where a sentence of direct imprisonment is imposed.”.

[7] The Learned Magistrate should, under s 168 of the Criminal Procedure Act 55 of 1977 (“the Act”) have adjourned the proceedings to any date on terms which to him seemed proper. In S v Dangatye 1994 (2) SACR 1 (A) the Court set the conviction on the murder charge and sentence thereon aside and ordered that the appellant be tried de novo by another Court on the murder charge. In that case the Learned Magistrate had refused an application for a postponement by an applicant who had been represented by a pro deo counsel. During the proceedings the appellant was dissatisfied with the appointed advocate’s conduct of the case. The Appellate Division, in deciding whether a postponement should have been granted remarked, at 23 c-d, as follows:

“ ...  Mens is terdeë bewus daarvan dat die uistel van  deelsverhoorde saak, veral op rondgang, groot ongerief kan meebring vir almal wat daarby betrokke is, maar tensy daar buitengewone omstandighede aanwesig is, behoort dit nie die beskuldige die geleentheid te ontneem om reëlings te probeer tref vir regsverteenwoordiging van sy eie keuse nie, des te meer waar sy versuim om dit vroeër te doen nie onredelik was nie en waar hy nog nie vantevore so  geleentheid aangevra en dit verkwis het nie.”.

[8] The failure and/or refusal by the Learned Magistrate to allow a postponement and to warn the appellant of his rights as aforesaid go against the whole idea of a fair trial and to ensure a just and accurate application of the law. The concession by the State was, therefore, well made. In the result the conviction and sentence should be set aside.

[9] In the course of argument this Court raised a possibility of sending the case back to the court a quo for a re-trial either under section 322(1)(c) or 324 (c) of the Act. The setting aside of conviction and sentence raises a question whether or not the appellant is “definitely absolved from crime” or “declared not guilty” and not merely “discharged from the prosecution by reason of some technical defect therein”. To put it simply, whether an order setting aside a conviction and sentence should be coupled with a simultaneous order for a trial de novo.

[10] Section 324(c) of the Act, as its predecessor s 370(c) of Act 56 of 1955, permits of a re-trial. It reads, in so far as here relevant, as follows:

“Whenever a conviction and sentence are set aside by the court of appeal on the ground-

(a) ...

(b) ...

(c) that there has been any other technical irregularity or defect in the procedure, proceedings in respect of the same offence to which the conviction and sentence referred may again be instituted either on the original charge, suitably amended where necessary, or upon any other charge as if the accused had not previously been arraigned, tried and convicted: Provided that no judge or assessor before whom the original trial took place shall take part in such proceedings.” (My underlining)

[11] The term “technical” was considered in S v Moodie 1962 (1) SA 587 (A) at 597G and was described as an irregularity “which justifies the setting aside of a conviction by the Court of Appeal if it precludes a valid consideration of the merits; in other words, if it makes it impossible for the Court to give a valid verdict on the merits.” (See also S v Naidoo 1962 (4) SA 348 (A)).

[12] Section 322(1) of the Act empowers this Court, inter alia, to

“...

(c) make such other order as justice may require:

Provided that...no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings, unless it appears to the court of appeal that a failure of justice has in fact resulted from such irregularity or defect.”.

[13] In the Criminal Procedure and Evidence Act 31 of 1917, special provision was made in s 374(b) that if the Court of Appeal ordered the judgment of the trial court to be set aside, that order would have for all purposes the same effect as if the accused had been acquitted. That provision has however been omitted in the Criminal Procedure Acts 56 of 1955 and 55 of 1977, with the result that the setting aside of the conviction, by reason of a technical irregularity or defect in the procedure, permits a retrial.

[14] In the result and under ss 322 (1) (c) and 324 (c) of the Act, I make the following order:

(a) The appeal is upheld;

(b) The conviction and sentence are set aside; and

(c) It is ordered that the appellant be tried de novo by another presiding officer.

B.E. NKABINDE

JUDGE OF THE HIGH COURT

I agree

M.M. LEEUW

JUDGE OF THE HIGH COURT

APPELLANT’S ATTORNEYS : PHANCY MAGANO & PARTNERS

RESPONDENT’S ATTORNEY : STATE ATTORNEY