Kgwamane v S (CA 31/06) [2009] ZANWHC 12 (14 May 2009)

IN THE HIGH COURT

OF SOUTH AFRICA

(NORTH WEST, MAFIKENG)

In the matter between: CASE NO: CA 31/06

NICHOLAS KGWAMANE

Appellant

and

THE STATE

Respondent

CRIMINAL APPEAL

DATE OF HEARING : 08 MAY 2009

DATE OF JUDGMENT : 14 MAY 2009

COUNSEL FOR THE

APPELLANT : ADV ZWIEGELAAR

COUNSEL FOR THE RESPONDENT : ADV

MUNYAI

JUDGMENT

HENDRICKS J

[A] Introduction:-

[1] The Appellant was convicted in the Regional Court on a charge of murder and was sentenced to an effective term of imprisonment of ten (10) years. He appeals, with leave to the court a quo, against his conviction.

[2] The main contention is that he was not afforded a fair trial in that his constitutionally entrenched right to legal representation was infringed because he was denied an opportunity to secure legal representation.

[B] The history of the matter:-

[3] The Appellant was arrested on 21 December 2003. He appeared on 25 February 2005 for the first time in the Regional Court. He then indicated that he wanted to be legally represented whereupon the matter was postponed until 26 April 2005.

[4] On 26 April 2005 an attorney, Mr S M Motlhabani (“Mr Motlhabani”), appeared on behalf of the Appellant and the matter was postponed until 29 June 2005 for plea and trial. On 29 June 2005 Mr Motlhabani was absent due to illness and the matter was postponed until 29 August 2005 at the request of the Appellant. On 29 August 2005 Mr Motlhabani was again absent and the matter was postponed until 29 November 2005 for trial.

[5] It appears that the Appellant called Mr Motlhabani shortly before 29 November 2005 and informed him of the trial date. Mr Motlhabani undertook to call the Regional Court Prosecutor to make arrangements with him. He again tried to call Mr Motlhabani on 29 November 2005 before he appeared in court but was not able to get hold of him.

[6] The proceedings regarding the Appellant’s application for a postponement on 29 November 2005 were not recorded but it appears from page 2 of the record that the learned Regional Magistrate granted the Appellant until 12h30 to secure the attendance of Mr Motlhabani.

[7] The Appellant then applied for a further postponement of the matter seeing that his legal representative was absent. The Regional Magistrate refused a further postponement of the matter and remarked as follows:-

“And the case was postponed from the 29th of August 2005 until today and you were informed that this will be a final postponement to get your legal representation in order and it would appear that you did not make any great effort. The witnesses have been here quite a number of times and the court is not going to postpone the matter once again for your attorney and the matter will be proceeded with today.”

RECORD: page 1: line 20 to 28.

[8] The Appellant then requested a last opportunity to call Mr Motlhabani which indulgence was also refused when the learned Regional Magistrate remarked:-

“It is already 12:30. We have given you an opportunity since the morning until 12:30. We are going to proceed with this matter now. Mr Sebe you may proceed.”

RECORD: page 2: line 1 to 2.

[9] After the conclusion of the evidence of the State witness Mr Sere, the Appellant indicated that he wanted to ask something and thereafter the following transpired:-

“Accused: As I was informed about my rights regarding legal representation when this case started here at the Regional Court, why presently did the court now allow me to engage the services of Legal Aid, because I was informed about my rights, regarding legal representation?

Court: But it would appear that you are abusing that right because you never made any attempt to get an attorney. I have already made my ruling before we started with this matter, that we are going to proceed with this matter.”

RECORD: page 53: line 10 to 22.

[10] When the learned Regional Magistrate asked the Appellant whether he had any address before judgment the Appellant responded as follows:

“I am not satisfied your Worship, concerning legal representation. I was not supposed to defend myself. I gave my attorney proper instruction, he was supposed to defend me. Is it possible for me to lodge an appeal in this regard?”

RECORD: page 59: line 15 to 23.

[11] In his ex tempore judgment on the merits the learned Regional Magistrate said the following with regard to the Appellant’s application for a postponement on 29 November 2005:

“When the accused initially appeared in the Regional Court, his rights to legal representation were explained to him, that was on the 25th February 2005, and he indicated that he wanted an attorney.

The matter was then postponed to the 26th April for the accused’s attorney Mr Motlhabani then appeared for the accused. The matter was then postponed to the 28th June for the trial where Mr Motlhabani was absent. It appears from the record that the Prosecutor has received a phone call that Mr Motlhabani was ill.

It must be noted that the State witnesses were here on the 26th April and they were also here on the 26th June. And the matter was then postponed until the 28th August at the request of the defence, where Mr Motlhabani was again absent. The matter was then postponed until today for trial, that was recorded as a final postponement at the request of the defence.

Although not recorded on record the accused was informed that it was a final postponement and that he must make the necessary arrangements or to have his attorney here.

Today Mr Motlhabani again was absent and upon enquiry from the accused, he indicated that he phoned his attorney yesterday only, after three months. So, he did not make any arrangement to have the attorney present today.

And on that basis the Court ordered that the matter should proceed. The Court is aware of the accused’s right to have a legal representative and that the accused had an attorney. But it would appear that from the last postponement until today the accused did not make any arrangements to notify his attorney of today’s date, he only phoned him yesterday.

And it would appear that the accused did not, it was his own fault that the attorney is not here today. And that is the reason why the Court ordered that the matter should proceed.

The witnesses were again in Court today, this is the fourth time that they attended Court today. And it would not have been in the interest of justice to postpone the matter once again. This is a very old matter, the matter happened in December 2003, and it would have been prejudicial to the State if the matter had to be postponed once again.

Although the accused has a right to legal representation this Court is of the view that under the circumstances he will have to conduct his own defence.”

RECORD: page 60 to 61.

[12] The Appellant called his common law wife, Ms Sanah Visagie, to testify in mitigation on his behalf. During her evidence-in-chief she requested that the Appellant be allowed to appeal so that he could obtain legal representation. She testified during cross-examination that the Appellant had since the postponement of the matter on 29 August 2005 continually called Mr Motlhabani to inform him about the postponement. The Appellant also had done so on the previous occasions when he had to appear in court.

[13] When asked by the learned Regional Magistrate whether he had any address before sentence the Appellant responded as follows:

“Your Worship, if the Court does not want to give me another opportunity to call my attorney to represent me the Court should rather impose a suspended sentence.”

RECORD: page 76: line 2 to 6.

[14] It is clear from the record that the Appellant was all along desirous to be legally represented during his trial. His version that he gave his attorney Mr Motlhabani full instructions to represent him stands uncontested.

[C] The Law:-

[15] Section 35(3)(f) of the Constitution of the Republic of South Africa Act, Number 108 of 1996 (the Constitution”), provides that every accused person has a right to a fair trial, which includes the right to choose and be represented by a legal practitioner and to be informed of this right promptly. This fundamental right can only be limited in the manner and to the extent as permitted in section 36 of the Constitution.

[16] Section 73(2B) of the Criminal Procedure Act, Number 51 of 1977 (the Criminal Procedure Act”), provides that every accused shall be given a reasonable opportunity to obtain legal assistance.

[17] Section 168 of the Criminal Procedure Act provides:-

“A court before which criminal proceedings are pending, may from time to time during such proceedings, if the court deems it necessary or expedient, adjourn the proceedings to any date on the terms which to the court may seem proper and which are not inconsistent with any provision of this Act.”

[18] The decision whether or not to grant a postponement is in the discretion of a trial court. That discretion is to be exercised judicially and upon all the facts and circumstances pertaining to the matter. A court of appeal will not interfere, or substitute its discretion for that judicially exercised by a trial court, merely on the ground that it would have come to a different conclusion. The importance of legal representation and, where possible, a representative of the accused choice are not to be underestimated.

[19] The gravity of the charge and possible sentence as well as the complexity of the case are among the factors to be considered. So too, the failure or inability of the accused to arrange for his own legal representation. The right to a fair trial entrenched in the Constitution must also be borne in mind by a trial court when faced with an application for postponement.

[20] As a court of appeal, we need to determine whether the Appellant received a fair trial. When a trial court fails to exercise its discretion judicially, (which is to say capriciously or in accordance with wrong principles or not on material grounds), then a court of appeal will interfere with the decision. In this regard prejudice to an accused, flowing from the refusal of a postponement, is sometimes virtually presumed where the effect of the refusal of an application is to deprive him of legal representation. Section 168 of the Criminal Procedure Act does not preclude a finding in an individual case that an accused person has not been afforded his right to a fair trial because, in consequence of a refusal to postpone, he was wrongly deprived of his right to be represented by a legal practitioner or the practitioner of his choice.

See in this regard:-

R v Zakey 1945 AD 505;

S v Seheri en Andere 1964 (1) SA 29 (A);

S v Shabangu 1976 (3) SA 555 (A);

S v Van Wyk 1972 (1) SA 787 (A);

S v Dangatye 1994 (2) SACR 1 (A);

S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 642 (CC) at 651- 2;

S v Ntuli 1996 (1) SA 1207 (CC) at 1208 -9;

S v Harris 1997 (1) SACR 618 at 621-623;

S v Philemon 1997 (2) SA SV 651 (WPA) at 659 D – F, 660 J – 661 J and 664 C – J;

Beyers v Director of Public Prosecutions, Western Cape 2003(1) SACR 164 (C) at 168 C – E;

S v Saule 2009(1) SACR 196 (CKHC); and

S v Tongwa 2008(1) SACR 613 (SCA).

[21] The learned Regional Magistrate’s failure to allow the Appellant a reasonable opportunity to obtain legal representation amounts, in my view, to a gross irregularity which effectively denied the Appellant the right to a fair trial as contemplated in section 35 (3) (f) of the Constitution.

[22] Section 73 (2C) of the Criminal Procedure Act gives a court a discretion in that, a court may order that a trial proceed without legal representation, unless the court is of the opinion that it would result in substantial injustice in which event the court may, subject to the provisions of the Legal Aid Act 22 of 1969, order that a legal representative be assigned to the accused at State expenses.

[23] The learned Regional Magistrate should have informed the Appellant of the seriousness of the charge and the likelihood of a sentence that could be prejudicial to him and should have encouraged him to obtain legal representation or even other legal representation seeing that there was a problem to secure Mr Motlhabani’s attendance at court. The Regional Magistrate should have furthermore questioned the Appellant extensively to obtain further information which would have enabled him to determine whether or not a postponement which was previously granted was reasonable for the intended purpose. Of much more importance is the fact that he should have informed the Appellant that he was entitled, even at that stage, to apply to the Legal Aid Board for legal assistance seeing that the Appellant was desirous to be legally represented.

See:- S v Balatseng 2005 (2) SACR 28 (B).

[24] The learned Regional Magistrate’s finding that the matter has a long history commencing on 21 December 2003, (the date of commission of the offence) is incorrect.

[25] The Appellant’s first appearance in the Regional Court was on 25 February 2005 and the matter was only on three (3) subsequent dates postponed for different reasons. The first trial date was 28 June 2005 when Mr Motlhabani was indisposed due to ill health. The matter was then remanded to 29 August 2005 on which date Mr Motlhabani was again absent. It does not appear from the record that Mr Motlhabani ever appeared and withdrew as attorney of record. In effect, when the matter started on 29 November 2005 it had only been postponed on two previous occasions when the trial was supposed to have commenced but could not due to the fact that Mr Motlhabani was ill. The Appellant cannot be blamed for the absence of his legal representative whom he had given full instructions to represent him.

[26] Moreover, the Appellant cannot be blamed for the fact that his legal representative, (Mr Motlhabani), was absent on 29 August 2005 as it appears that this date was telephonically arranged between Mr Motlhabani and the prosecutor.

[27] In my view, it was unreasonable of the learned Regional Magistrate to refuse the Appellant’s request to be allowed a last opportunity to try and get hold of Mr Motlhabani telephonically, especially in view of the fact that it was at that stage already 12h30 and nearly time for the lunch adjournment.

[28] In failing to allow the Appellant the opportunity as the very last attempt to phone Mr Motlhabani and also to explain his right to legal aid, the Regional Magistrate effectively denied the Appellant legal representation which amounts to a gross irregularity and a failure of justice. This is also a transgression of the “notion of basic fairness and justice”.

[29] Mr Munyai, on behalf of the Respondent, conceded that the appeal be upheld and that the conviction and sentence be set aside. He then applied that an order be made that the matter be referred back to the Regional Court to be tried de novo before another Magistrate.

[30] The following authorities

S v Seheri and Others 1964 (1) SA 29 (A) at 36 E;

S v Thembisile Twopenny T and Others 1981 (2) PH H179;

S v Mayekiso and Others 1996 (1) SACR 510 (C) ([1996] 1 All SA 571);

S v Visser and Another [2001] 2 All SA 5 (C);

S v Mnguni 2002 (1) SACR 294 (T) ([2002] 2 All SA 519)

intimate that such an order should only be made when all the parties to the appeal agree that the accused be tried de novo.

[31] Mrs Zwiegelaar, on behalf of the Appellant, agreed that the matter be referred back to the Regional Court to be tried de novo.

[32] Due to the fact that the proceedings in the court a quo is set aside as a result of an irregularity, I need not consider or pronounce on the merits of the case

[D] Order:-

Consequently, the following order is made:-

[i] The appeal is upheld.

[ii] The conviction and sentence are set aside.

[iii] The matter is referred back to the Regional Court, Atamelang for trial de novo before a Regional Magistrate other than Mr Du Toit.

R D HENDRICKS

JUDGE OF THE HIGH

COURT

I agree.

L LEVER

ACTING JUDGE OF THE

HIGH COURT

ATTORNEYS FOR THE APPELLANT: