REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: SS421/2004
In the matter between
THE STATE

Vs

JUSTIN MULLER
JACO KLAASSE
ADAM KLAASEN

Coram:		Yekiso J
Heard:		18 April and 23 June 2005
Delivered:		6 July 2005

Summary:  Fairness of trial – Magistrate omitted to afford the parties an opportunity to address court on the merits at the conclusion of evidence – held such omission constitutes violation of accused’s right to a public trial before an ordinary court and the right to adduce and challenge evidence.

JUDGMENT DELIVERED:  6 JULY 2005

Yekiso J

[1]	On Thursday, 23 June 2005 I ordered that the conviction on a charge of rape of all three accused in these proceedings be set aside on the basis that the proceedings in the regional court were not held in accordance with justice.   The matter was before me in terms of section 52(2)(b) of the Criminal Law & Procedure Act, No 105 of 1997 (to which I shall hereafter simply refer to it as “the Act”) in order to consider if the proceedings in the regional court were held in accordance with justice and, in the event of a positive finding, to proceed with the sentencing stage of the proceedings.  I did not give reasons for my order but I did point out to the parties that I would give full reasons for my order on my next sitting which would be on Wednesday, 6 July 2005 when I would be doing recess duty.   What follows is my judgment in the matter which obviously includes reasons for the order I made.

[2]	The accused in these proceedings, Justin Muller, Jaco Klaasse and Adam Klaasen, being accused numbers 1, 2 and 3 respectively, were charged in the regional court, Malmesbury, with rape, allegedly committed at or near Kromrivier, Eendekuil within the regional division of the Cape.   The sexual assault is alleged to have been committed on 10 May 2003 on one W.F., a female person.

[3]	Once the accused had been charged, and after several appearances in the district court, they eventually appeared for trial before Ms A M Le Roux, acting regional magistrate sitting at Malmesbury.   The accused appeared on several occasions during the course of trial which, on basis of the record, appears to have commenced on 8 November 2003 and finalized on 22 September 2004 on which latter date all the accused were convicted as charged.   

[4]	All three had pleaded not guilty to the charge preferred against them.   Each one of them raised consent to such sexual intercourse as the basis of their defence.   All three of them were legally represented throughout the duration of trial in the regional court, having been represented by a Mr Bressler, an attorney from Citrusdal.   Once the accused were convicted, the magistrate was of the view that the offence of which the accused were convicted is an offence referred to in Part I of Schedule 2 of the Act, whereupon the proceedings in the regional court were stopped and the matter was referred to this Court for consideration of an appropriate sentence.

[5]	The matter initially came before me on Monday, 18 April 2005 in order for me to determine if the proceedings in the regional court were held in accordance with justice so that, in the event of a positive finding, to confirm the conviction and to proceed with the sentencing stage of the proceedings.   On this occasion Ms Lötter appeared for all three accused whilst Ms Taylor, of the office of the Director of Public Prosecutions, appeared for the State.   I accordingly invited the parties to address me on the question whether the proceedings in the regional court were held in accordance with justice.   

[6]	Ms Lötter, in her submissions, attacked the regularity of the proceedings in the regional court on the basis that the parties, it being both the State and the defence, were not afforded an opportunity to address court at the conclusion of the evidence as contemplated in section 175 of the Criminal Procedure Act, 51 of 1977, making a point that an omission by the magistrate to do so is an irregularity of such a nature and magnitude as would generally amount to the vitiation of the proceedings which, inevitably, should lead to the conviction being set aside.   

[7]	The second leg of the attack by Ms Lötter is based on the portion of the complainant’s evidence to the effect that prior to the perpetration of the sexual assault on her, she was dragged out of the dwelling in which the parties had been initially; that accused number 1 had grabbed her on her arm, proceeded to drag her out of the dwelling in which they were whilst kicking her in the process.   This portion of the complainant’s evidence, so Ms Lötter submitted in her argument, is at variance with the medical report completed by the district surgeon wherein the district surgeon indicated that, having examined the complainant, he could not detect any injury or injuries which are consistent with the alleged sexual assault.    Ms Lötter further pointed out that the absence of any injuries on the complainant tends to corroborate the accused’s version of consensual sexual intercourse and that failure by the magistrate to refer to this aspect of the complainant’s evidence in her evaluation inevitably led to failure of justice.

[8]	After hearing the parties’ argument on the regularity or otherwise of the proceedings, I adjourned the proceedings specifically for the purpose of addressing a query to the magistrate on the issues raised by the defence and to call for her comments thereon.   Crisply put, the issues I called on the magistrate to comment on were whether the omission to invite the parties to address her on the merits did not constitute a violation of the accused’s right to fair trial and, in particular, whether such omission does not constitute a violation of the accused’s right to a public trial before an ordinary court and a right to adduce and challenge evidence.   I also invited the magistrate to comment specifically on what appears to be a discrepancy between the complainant’s evidence and the contents of the medical report arising from the examination of the complainant by the district surgeon.
	
[9]	The magistrate responded in a rather lengthy letter and her response, in effect, amounts to this: the reason for requesting or directing the parties to submit written heads of argument was premised on the fact that a Ms Venter, who was a prosecutor in the matter at the time, would not have been able to travel to Malmesbury on 3 August 2004, the latter being the date to which the matter was postponed, ostensibly for argument, to attend court to argue the matter as she would have been in an advanced state of pregnancy; that if this arrangement would not have been resorted to, it would have meant the prosecutor who would have to take the matter over from Ms Venter would have had to listen to the recorded evidence or alternatively, the record would have had to be transcribed at considerable costs for this purpose, which inevitably would have necessitated further delays and thus compromise the accused’s right to a speedy trial, particularly in view of the fact that the accused had been in custody since the date of their arrest on 13 May 2003.   May I just add that the aforementioned explanation emanates from the magistrate’s written response to my query.   There is no indication on record to suggest that the arrangement for the filing of heads of argument was made to accommodate Ms Venter or any indication on record that the parties had waived their right to address court after conclusion of evidence and opted instead for the filing of heads of argument.   

[10]	The magistrate goes further in her response to say that the filing of heads of argument has become common practice both in the regional court and the High Court, thereby suggesting that there is nothing irregular either in the arrangement purportedly made or in delivering judgment without having heard oral argument on the merits from the parties.   The magistrate further adds in her response that the attorney representing the accused at the time had had full mandate from his clients; that this mandate would have included authority to file heads of argument and enter into the kind of an arrangement which the magistrate in her response claims was agreed upon between the parties.

[11]	What follows is what appears ex facie the record apart from the query I addressed to the magistrate:
 
[11.1]	  The leading of evidence was concluded on 14 May 2004 after the close of the defence case.   The matter was then postponed to 28 May 2004 for argument by both the Sate and the defence.

[11.2]  On 28 May 2004 the matter could not be argued as Ms Venter, the prosecutor in the matter, was indisposed.   On this occasion the matter was postponed to 3 August 2004 ostensibly for judgment.   The record of the proceedings indicates that the accused’s legal representative had been excused earlier on that day so that he was not physically present in court when the accused were subsequently remanded in custody.   The record merely indicates that the accused’s legal representative had been excused earlier and the magistrate made the following note on the record:
“Reëlings is met die staat en verdedigng getref om skriftelike betoë aan die hof voor te lê binne ‘n week.   Uitgestel 3/8/04 vir uitspraak.”

[11.3]	  On 3 August 2004 the matter came before another regional magistrate, a Mr Arno Laubscher.   Ms Venter, the prosecutor in the matter, did not appear.   The record indicates that she had been excused to go and appear in yet another partheard matter.   The accused’s legal representative was once again not physically present in court.   The record merely indicates that the legal representative was absent.   On this occasion the matter was further postponed to 22 September 2004 and the accused were remanded in custody.

[11.4]  The matter once again came before Ms Le Roux on 22 September 2004.   On this occasion the magistrate proceeded to deliver judgment, which was mechanically recorded and concluded in her judgment that the State had proved its case against all three accused beyond reasonable doubt whereupon the accused were convicted as charged.   The accused’s legal representative, on this occasion, was present in court, ostensibly to note judgment.   The record merely shows that the magistrate proceeded to deliver judgment.   There is no indication that the parties were afforded an opportunity to address the magistrate on the merits or invited to address the court on the merits.

[11.5]	  Finally, I was informed by Ms Lötter from bar on the resumption of the matter on Thursday, 23 June 2005, that the last occasion the accused had any form of communication with their legal representative was on 14 May 2004 when the leading of evidence was concluded and the matter subsequently postponed to 28 May 2004 for argument and possibly judgment.   The accused did not consult with their legal representative during the period 14 May 2004 and 22 September 2004 when, on the latter date, judgment was delivered.   Ms Lötter made a point in her further argument that it is inconceivable that the accused could have mandated their legal representative to opt for the filing of heads of argument instead of addressing the court on the merits once the leading of evidence had been concluded since there was no consultation between them and their legal representative during the period in point.

[11.6]	  Ms Lötter thus persisted in her argument that the proceedings in the regional court were not held in accordance with justice; that the accused’s right to fair trial, and in particular the accused’s right to address and challenge evidence and their right to a public trial before an ordinary court were seriously curtailed.   Ms Taylor, for the State, aligned herself with the argument advanced by Ms Lötter and conceded that the proceedings in the regional court did not meet the threshold of fairness.

[12]	After finally hearing the parties on Thursday, 23 June 2005, I ruled that the proceedings in the regional court were not held in accordance with justice and ordered that the conviction be set aside.  As has already been pointed out I did not then give reasons for my ruling and the subsequent order setting the conviction aside.   I indicated to the parties that I would furnish the parties with full reasons for my ruling and the order made on Wednesday, 6 July 2005 when next I would be sitting in  doing recess duty.   In the paragraphs which follow are my reasons for having ruled that the proceedings  in the regional court were not held in accordance with justice and the subsequent order setting the conviction aside.

FAIRNESS OF TRIAL
[13]	What I was required to determine in the proceedings before me, before proceeding to the sentencing stage of the proceedings in terms of the Act, was whether the proceedings in the regional court were held in accordance with justice.   The fundamental principle which is a guiding light in the determination of whether the proceedings were indeed held in accordance with justice is premised primarily on the fairness of trial.   This is in line with what was said by O’Regan J in S v Coetzee 1997 (4) BCLR 437 (CC) at 486 where the learned justice observed that fairness of trial recognises  that before the State can impose a criminal sanction on a person, that person must have been afforded a fair trial.   Nico Steytler: Constitutional Criminal Procedure: Butterworths 1999 at p.216 notes that the concept of a fair trial within the meaning of section 35(3) of the Constitution is broader than the conduct of the trial in terms of constitutionally mandated rules and procedures.

[14]	The right to fair trial conferred by section 35(3) of the Constitution, so have the courts held on numerous occasions since the advent of democracy, is broader than the list of specific rights set out in paragraphs (a) to (o) of the subsection.    It embraces a concept of substantive fairness which is not equated with what might have passed muster in our criminal courts before the Constitution came into force.   (See in this regard S v Ntuli 1996 1 BCLR 141 (CC);   Key v Attorney-General : Cape of Good Hope Provincial Division 1996 BCLR 788 (CC) amongst others.)   The right to a public hearing and the right to adduce and challenge evidence are amongst the specific rights listed in section 35(3) of the Constitution.

RIGHT TO A PUBLIC TRIAL BEFORE AN ORDINARY COURT
[15]	The right to a public trial is not limited to access to criminal proceedings by the ordinary members of the public as also media access.   The accused is given the right to a public trial to ensure that justice be seen to be done.   The right to a public trial would include a right to participate fully in the proceedings, be it by way of adducing and challenging evidence or by way of addressing court on the merits of the case after the conclusion of evidence.   It would include a right to participate meaningfully in the conduct of trial, from the pleading stage of the proceedings up to the pronouncement of the verdict.   If represented by a legal practitioner, the right would include cross-examination of witnesses and challenge of evidence in the presence of the accused unless lawfully removed from the proceedings by lawful order.   In the present matter mere filing and exchange of heads of argument without the accompanying oral argument on the merits, audibly and in the presence of the accused, cannot be said to have fulfilled a right to a public trial before an ordinary court.

[16]	The magistrate, in her response to my query as to whether proceeding to prepare and deliver judgment solely on the basis of heads of argument exchanged between the parties and filed of record does not constitute a violation to the accused’s right to a public trial and the accused’s right to adduce and challenge evidence, made an observation that the exchange of heads of argument and filing same with the presiding judicial officer before delivering judgment is common practice both in the lower and superior courts.    That may well be so and as a matter of fact such practice is encouraged.   No matter what benefit such exchange of heads of arguments may yield to the parties and the presiding judicial officer, such practice was never intended to substitute the parties’ right to address court at the conclusion of evidence.   Such heads of argument, no matter how comprehensive they may be in dealing with the issues in dispute, could never have been intended to substitute or compromise the parties right to address court on the merits.   Heads of argument are no more than inanimate documents outlining the views of the parties on the issues in dispute.   A party only breathes life into such heads of argument by way of additional oral arguments with all the power of persuasion that goes with such oral argument.   An accused person is entitled, and indeed has a right, to hear audible argument on the merits presented on his behalf unless there are clear indications that the accused has waived his rights in this regard.

[17]	The right to address court at the conclusion of evidence is of such fundamental nature as not to be departed from unless expressly waived by the prties.    In this regard I can do no more than to restate the observations by Nico Steytler: Constitutional Criminal Procedure supra, at p358 where the learned author points out that the right of an accused to address the court on the merits is not only an expression of the audi alteram partem rule and hence a right to a fair trial, but also an integral part of the accused’s right to adduce and challenge evidence.   The court must invite every accused person to address it on the merits and afford them an opportunity to do so.   The court’s failure to comply with this duty is an infringement of an accused right to fair trial.

[18]	In the light of the conclusion I have reached on the issues referred to in the preceding paragraphs, it is not necessary for me to comment on the magistrate’s response to what appears to be a discrepancy in the complainant’s evidence and the contents of the medical report completed by the district surgeon.

[19]	For the reasons set out in the preceding paragraphs I concluded that the conduct of the magistrate, in proceeding to deliver judgment and ultimately pronouncing her verdict without having afforded the parties an opportunity to address her on the merits, not only rendered the trial unfair but also violated the accused’s right to a public trial before an ordinary court and the accused’s right to adduce and challenge evidence.

[20]	It is for those reasons I could not conclude that the proceedings in the regional court were held in accordance with justice, hence I ordered that the conviction be set aside.

………………………………
N J Yekiso, J