IN
THE HIGH COURT OF SWAZILAND
HELD
AT MBABANE
CR.
APPEAL NO. 7/94
In
the matter between
SIMON
MAKHANYA
AND
THE
KING CORAM : DUNN J.
FOR
THE APPELLANT : MR MAZIBUKO
FOR
THE RESPONDENT : MR MACHIRA
JUDGMENT
29 APRIL 1994
The
appellant in this case was charged with and convicted of hunting game
(a grey duiker) in contravention of Section 12(1) of the Game Act
1953. He was sentenced to a fine of E300.00 in default of which 12
months imprisonment. The appellant was unrepresented at the trial.
The
evidence led at the trial sufficiently-established the commission of
the offence. The point taken on appeal is that the trial Magistrate
did not, at the commencement of the trial, explain the accused's
right to legal representation. It was argued in the appeal that the
failure on the part of the Magistrate amounted to a grave
irregularity sufficient to have the proceedings set aside.
The
point raised, has been the subject of two definitive judgments of the
Court of Appeal with which all judicial officers should be au fait.
2
There
was a failure, in both cases, by the preciding officer to inform the
accused of their right to legal representation. The first of these
cases is that of CAIPHAS DLAMINI v.R 1982-6 SLR 309- in which Welsh
J. A. stated at 313 B-F.
"
Another fundamental right of an accused is the right to be legally
represented at his trial. That right is recognised not only by the
common law (see S v Wessels and another 1966 (4) SA.(89) (C), at
91-2) but also by s 171 of the Criminal Law and Procedure Act 67 of
1938, which provides that: 'Every person charged with an offence is
is entitled to make his defence at this trial and to have the
witnesses examined or cross-examined by his counsel, or other legal
representative' The corresponding South African provision was
referred to in S v Nqula 1974 (1) SA 801 (E) where Eksteen J. said
this, at 804E-F: ' It is to my mind a matter of considerable
importance in the interests of justice and the administration of
justice that every accused person should be accorded every
opportunity of putting his or her case clearly or succinctly to the
court and this can only be properly done when it is put by a person
who is trained in the law. Such a person must obviously be in a much
better position to put the case of an accused person much better and
much more clearly than that person could fairly do himself. More
recently, in S v Baloyi 1978(3) SA 290 (T) Margo J. referred to a
number of cases dealing with
3
'
the right of an accused to legal representation where he wishes it '
and holding that 'the mere fact of being denied legal representation
can by itself be fatal to the validity of the trial ', and said this,
at 293F-G: 'However, where he (the accused) does not seek it, and
where no irregularity occurs by which he is deprived of it, there is
no principle or rule of practice of which I am aware which vitiates
the proceedings'. Compare the case where a legal representative is
not available because of the accused's own fault. R v Zackey 1945 AD
505. Naturally, where an accused is not legally represented- and this
is especially so in the case of an illiterate or foreign accused who
is not familiar with the judicial process, the Court will be careful
to draw attention to the advisability of being legally represented,
and in the absence of legal representation, will take all reasonable
steps to protect the interests of the accused".
Later,
in restating the rules which must be observed by all criminal courts
the learned judge stated at 315 –
It
is, indeed, imperative that the accused should be asked, at the very
outset of the trial, whether he wishes to be legally represented.
The
second decision is that of NKOSINATHI VILAKATI & ANOTHER v. R
Court of Appeal Case No.12/1993 (unreported). In that case Melamet
J.P. stated
4
"Section
171 of the Criminal Law & Procedure Act 67 of 1938 provides that
every person charged with an offence is entitled to make his defence
at his trial and to have the witnesses examined or cross-examined by
his Counsel or other legal representative. There is no statutory
provision enjoining a Magistrate or other judicial officer to ensure
that unrepresented accused fully understand their rights but there is
a general duty on the part of judicial officers so to do. In this
connection I refer to the following dicta of Goldstone J in S v
Mbonani 1988 (1) SA 191 (T) at 196 F-J:
'If
there is a duty upon judicial officers to inform unrepresented
accused of their legal rights, then I can conceive of no reason why
the right to legal representation should not be one of them.
Especially where the charge is a serious one which may merit a
sentence which could be materially prejudicial to the accused, such
an accused should be informed of the seriousness of the charge and of
the possible consequences of a conviction. Again, depending upon the
complexity of the charge, or of the legal rules relating thereto, and
the seriousness thereof, an accused should not only be told of this
right but he should be encouraged to exercise it. He should be given
a reasonable time within which to do so. He should also be be
informed in appropriate cases that he is entitled to apply to the
Legal Aid Board for assistance. A failure on the part of a judicial
officer to do this, having regard to the circumstances of a
particular case, may result in an unfair trial in which there may
well be a
5
complete
failure of justice. I should make it clear that I am not suggesting
that the absence of legal representation per se or the absence of the
suggested advice to an accused person per se will necessarily result
in such an irregularity or an unfair trial and the failure of
justice. Each case will depend upon its own facts and peculiar
circumstances.'
The
learned Judge President continued to cite with approval the following
passage from the judgment of Nicholas AJA in S v RUDMAN & ANOTHER
1992 (1) SA 343 (A) at 391 F-H
"Did
the Magistrate's failure to inform the accused in terms of S v Radebe
constitute an irregularity? In S v Mabaso at 204G, Hoexter J A said
that it seemed to him that
'in
the instant case the magistrate's failure to inform the appellants of
their right to representation before they pleaded would amount to an
irregularity only if the appellants were shown to have been ignorant
of that right'..
I
concurred in the judgment of Hoexter JA, but on reflection I am not
sure that this dictum is entirely correct. I am inclined to think
that the better view is that a failure to inform an accused of his
right to representation is an irregularity unless it is apparent to
the Magistrate, for good reason, that the accused is aware of his
rights (eg. from his own statement or from the circumstances-for
instance, that the accused is an attorney). Certainly it is' the
safer course always to inform the accused of his rights. But the
difference between the two views does not appear to be one of
substance: Whichever view be adopted, the result would be the same".
6
The
trial magistrate responded to the appellant's grounds of appeal and
had the following to say with regard to the point under consideration
It
is humbly conceded that this Court made a grave error, in not
explaining the appellant's legal rights to legal depresentation at
the trial.
The
appellant and his co-accused had been arrested on a farm shortly
after midnight. They were kept in police custody until about 9.30
a.m. when they were brought to Court and tried. It was necessary for
the magistrate to ascertain from the accused whether or not they had
had sufficient time to prepare for their defence and as to whether or
not they required legal representation. The failure by the magistrate
to deal with these matters at the commencement of the trial is such
that the conviction cannot be allowed to stand.
The
appeal is upheld. The conviction and sentence are set aside.
It
is imperative that a roneoed form be prepared for use by all
magistrates, setting out the rights of which an undefended accused
should be advised at the commencement of a trial. The. form should be
signed by the accused and kept as part of the record of the trial.
B.
DUNN
JUDGE
