S v Luwani and Another (CA&R 693/02) [2003] ZAECHC 11 (13 March 2003)

15

IN THE HIGH COURT

OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

Case No: CA&R 693/02

In the matter between:

SONGEZWA

LUWANI First Appellant

SOLWETHU NQOKWANE Second Appellant

and

THE

STATE Respondent

JUDGMENT

PLASKET AJ:

[1] The appellants were convicted in the Regional Court, East London on a charge of theft. The magistrate found that they had stolen a motor car from a residence in Beacon Bay, East London, had driven from there in the direction of Umtata and had been chased and apprehended by the police just short of the Kei River. In the chase, which occurred at high speeds, the stolen vehicle was damaged so badly that it was subsequently ‘written off’ by its insurer.

[2] The appellants now appeal against the sentences of eight years imprisonment imposed on them in the court below. Mr Haydock, who appeared for the appellants, based the appeal on three grounds. First, he argued that the magistrate misdirected himself by failing to obtain a pre-sentence report in respect of the appellants. Secondly, he argued that the magistrate over-emphasised the seriousness of the offence and the interests of society at the expense of the personal circumstances of the appellants. Thirdly, he argued that the sentence was so severe as to induce a sense of shock. Before dealing with these arguments, it is necessary to say something about the right to legal representation because it is not clear how the appellants’ rights in this respect were explained to them.

[A] LEGAL REPRESENTATION

[3] The appellants who were, it would appear from the charge sheet, 19 and 20 years old respectively, were unrepresented at their trial. All that appears from the record about their decision to defend themselves is an entry dated 23 January 2002 – the date of their first appearance in court -- that says that they confirmed that they did not need an attorney and would conduct their own defence.

[4] There is no way of knowing from the record whether the magistrate explained to them that they had the right to legal representation, as required by s35(3)(f) of the Constitution, the circumstances, contemplated by s35(3)(g), within which they could have legal representatives assigned to them at state expense, the advantages to being legally represented and how they could activate the legal aid system if they could not afford to pay for the services of a legal representative. Du Toit, De Jager, Paizes, Skeen and Van Der Merwe say that it is ‘standard practice in the magistrates’ courts within the jurisdiction of the Witwatersrand Local Division to use a standard form for the purpose of informing every accused person of these rights’.1 Such forms appear to be used fairly widely in the Eastern Cape Division’s area of jurisdiction too. They should, in my view, be used uniformly and as standard practice. They should also, as a matter of routine, be included in the record when matters are taken on appeal or are referred to the High Court on automatic or special review.

[5] Courts must guard against an approach that relegates informing accused persons of the right to legal representation to a formality of little importance or to regard the right as one of little real substance. I shall make three related points in this regard.

[5] First, the right to legal representation is a right that is central to the fairness of criminal trials. Kroon J, in S v Manguanyana2 held that this right was ‘an integral part of our legal system’ and the ‘cornerstone of a civilised system of justice’. This has been recognised to a greater or lesser extent by the common law prior to 27 April 1994, by the Bill of Rights contained in chapter 3 of the interim Constitution and by s35(3) of the present Constitution, by courts in comparable jurisdictions and in international human rights instruments. The purpose of the right is set out in the following terms by professor Steytler:3

‘The right to a lawyer is an essential feature of the right to a fair trial as lawyers play a critical role in ensuring that the accusatorial system, the foundation of a fair trial in the common law tradition, produces a just result. In an adversary system a court’s decision rests primarily on the evidence and arguments advanced by the parties and the system is predicated on the assumption that parties will protect their own interests through their vigorous participation in the proceedings. A fair adversary system is thus dependant on the prosecutor and the accused participating fully and effectively in order to produce a just decision. Because effective participation requires legal knowledge and court room skills, accused need the assistance of lawyers who have such knowledge and skills. With the constitutionalisation of criminal procedure, the need for legal assistance is even greater; not only is a fair trial likely to emerge through skilled participation, but other constitutional rights, such as privacy, can also be vindicated through the criminal process.’

[6] The importance of the right to legal representation has been stressed many times by the courts here and elsewhere. The famous dictum of Black J in Gideon v Wainwright 4 bears repetition:

'Not only these precedents but also reason and reflection require us to recognise that, in our adversary system of criminal justice, any person haled into court who is too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public's interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute, and defendants who have the money hire lawyers to defend, are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble ideal cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him.'

[7] Secondly, the preamble to the Constitution envisages South African society as being a society in which ‘every citizen is equally protected by law’ and s7(2) specifically places obligations on the state to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’. This means that the State is required not only to refrain from actions or conduct that interferes with fundamental rights – it must respect fundamental rights -- but also that it is duty bound to take positive steps to ensure that the rights are meaningful and are able to be exercised – it must protect, promote and fulfil fundamental rights.5

[8] In the specific context of the right to legal representation this means that the State is required not only to refrain from interfering with the right6 but also to make available the means to exercise the right (through a properly functioning legal aid system) and to ‘assist individuals in realising their rights’.7 This is the reason why presiding officers are required to ensure that accused persons are aware of their rights in this regard and take informed decisions as to whether they want to be legally represented or not.

[9] I agree with the views of Goldstein J in S v Mbambo8 when he held (in the context of an unrepresented accused having been tried on a charge for which he could have been sentenced to life imprisonment) that an accused person ought to be ‘encouraged to obtain legal representation’; with Jordaan AJ in S v Nkondo9 who, also in a case involving the possible imposition of a life sentence, held that accused persons ‘should be thoroughly appraised of their right to legal representation’ and that where an accused person elects to represent himself or herself, the presiding officer should make enquiries to ensure that this choice is not made as a result of a misunderstanding;10 and with Noorbhai AJ in S v Bulala11 that when the right to legal representation is explained to an accused person, the presiding officer must ensure that he or she actually understands his or her rights and, I would add, how they can be exercised. I also agree with the views expressed by Erasmus J in S v Soci12 (made in the context of the right to legal representation at the pre-trial stage) that when such rights are explained to an accused person, this must be done in ‘clear and simple language’, in a way that informs an accused person in ‘practical terms of the availability of the services of a legal practitioner at that time and place, and what he should do to obtain State assistance’ and that when these explanations are contained in standard-form documents, they ‘should not be unduly prolix and repetitive’ as this may confuse, rather than assist the accused person.

[10] The third point that I raise in regard to legal representation is that, while an accused person has a right to represent himself or herself,13 there is a duty on presiding officers to ensure that when this choice is made, it is an informed choice.14

[11] I have dealt with the right to legal representation at some length even though it was not raised as an issue by Mr Haydock. I have done so because the record does not show that the duties imposed by s35(3)(f) and s35(3)(g) have been complied with and that steps were taken to ensure that when the appellants elected to represent themselves, their decision was an informed one. It may well be that these steps were taken prior to the commencement of the trial but there is no way of knowing that if it is not apparent from the record. The consequences of such an omission may be significant. It was held in S v Moos15 that if such an omission was to result in a failure of justice – to an unfair trial, in other words -- the proceedings in question could be set aside on this basis alone.

[B] THE SENTENCES

[12] As stated above, the first appellant appears to have been 19 years old at the time of the commission of the offence. The second appellant appears to have been 20 years old.16 Both were first offenders.

[13] After the appellants had been convicted, the magistrate informed them that they had the opportunity to address the court in mitigation of sentence. He also explained to them that this meant that they were to ‘place before the Court any personal circumstances or other circumstances that you want me to take into account in deciding an appropriate sentence today’.

[14] The first appellant gave evidence under oath, answering questions put to him by the magistrate to the following effect: he worked as a motor mechanic on a part-time basis, earning, on average, in the region of R100.00 per week; he was unmarried and had no children; he has completed his schooling, having passed standard 10. He pleaded for leniency.

[15] He was cross-examined by the prosecutor. One exchange between them is noteworthy. The prosecutor, with reference to the first appellant’s plea for leniency, asked him what he had meant when he asked to be treated leniently, to which the first appellant replied that he was asking the court ‘not to be harsh when passing sentence’. The prosecutor then asked him whether he was aware that ‘these kinds of offences are taking direct imprisonment’ to which the first appellant replied in the negative, stating that ‘I actually came across on such a thing for the first time. I was not aware’.

[16] The second appellant then testified. In answer to the magistrate’s questions, he stated that: he was unemployed and supported by his mother; he was a student at the Eastern Cape Technicon, studying for a diploma in commerce and that he had been registered for this course for two years; he had no children. He also asked for leniency in the form of a suspended sentence so that he could ‘go back to school’.

[17] The magistrate’s judgment on sentence focuses almost exclusively on the seriousness of the offence. He stated that theft of motor vehicles was prevalent throughout the country and that it ‘strikes directly at the interests of the community and also raises the anger of the community’ because ‘a motor vehicle is for most people the most expensive purchase they will ever make and therefore they have to work a number of years either to pay off the motor vehicle or to accumulate money to buy such a motor vehicle’. He proceeded to state that the offence was particularly prevalent in the East London area and that it was for this reason important ‘that the Courts also impose heavier sentences then in this area to protect the community of East London’. Flowing from this, he took into account that ‘motor vehicle owners have to incur extreme expenses and inconvenience because of the number of thefts that take place’.

[18] In respect of the offence itself, he took three aggravating factors into account. They were that in order to apprehend the appellants there had been a ‘long distance high speed chase’; this had placed the lives of road users in ‘extreme danger because you were driving all over the road, shots had to be fired at you’; and the lives of the policemen who had apprehended the appellants were ‘unnecessarily placed in danger’. He concluded:

‘Now in taking into account all these factors then it is quite clear that the interests of the community, retribution and desistence from committing the particular offence weigh much more heavily than your personal circumstances. I have thus decided in the circumstances that the following is an appropriate sentence. Each of you are sentenced to EIGHT (8) YEARS IMPRISONMENT.’

[C] SENTENCING YOUNG OFFENDERS

[19] In S v Z en vier ander sake17 Erasmus J set out guidelines for the sentencing of youthful offenders.18 These guidelines (with references omitted) read as follows:19

‘1. Die hof sal vóór aanvang van die verhoor in gepaste gevalle die plasing van die beskuldigde in ‘n afwending jeugprogram bevorder.

2. Die hof moet vir strafdoeleindes die ouderdom van alle vermeende jeugdiges, asook grensgevalle, behoorlik vasstel. …

3. Die hof sal dinamies handel ten einde volledige besonderhede van die beskuldigde se persoonlikheid en sy persoonlike omstandighede te bekom. Die hof sal waar nodig ‘n voorvonnisverslag van ‘n proefbeampte en/of ‘n korrektiewe beampte aanvra. So ‘n verslag is aangewese waar die beskuldigde ‘n ernstige misdryf verpleeg het, óf vorige veroordelinge het. Dit is onvanpas om ‘n beskuldigde gevangenisstraf, ook opgeskorte gevangenisstraf, op te lê sonder die voordeel van ‘n voorvonnisverslag.

4. Die hof sal met sorg en verbeelding sy wye diskresie gebruik ten einde ‘n vonnis te bepaal wat paslik is vir die beskuldigde gesien sy eie besondere omstandighede en die misdryf waarvan hy skuldig bevind is. Dit behels eerstens die bepaling van die mees gepaste vorm van straf en tweedens die aanpassing van daardie straf om aan die behoeftes van die bepaalde beskuldigde te pas.

5. Die hof sal, as uitgangsbeginsel, waar moontlik straf in die vorm van gevangenissetting vermy, met besondere inagneming daarvan –

dat hoe jonger die beskuldigde, hoe minder paslik is gevangenisstraf;

dat gevangenisstraf besonderlik onvanpas is in die geval van ‘n eerste oortreder; en

dat korttermyn gevangenisstraf selde paslik is;

en sal altyd die gepastheid van ál die ander strafopsies oorweeg.

Indien gevangenisstraf dan nietemin, in ál die tersake omstandighede en met inagneming van die oogmerke van straftoemeting, die paslike vonnis blyk te wees, sal die hof dit ople.

6. Die hof sal nie opgeskorte gevangenisstraf oplê nie waar straf in die vorm van gevangenissetting onvanpas is vir die bepaalde veroordeelde.’

[20] In this case, it would have been apparent to the magistrate that he was dealing with young offenders. He did not ascertain how young they were by making enquiries about their ages. Even though the appellants were relatively well educated, their youth ought to have led the magistrate to the conclusion that they did not have the sort of experience of the world that could enable them as lay people to conduct their own defences effectively. As first offenders, the chances were that they had never been in a court before. It would appear that they did not even have the support or advice of family members to rely on because: in answer to a question from the prosecutor during his evidence in mitigation, the first appellant stated that his family had not travelled to court from Umtata because they ‘are not aware that we are going to come to Court because they knew that we are going to come to Court on the 7th’.

[21] In circumstances like this, the lack of legal representation was an obvious impediment to the effective presentation of the mitigation case of the appellants and the magistrate’s efforts to assist were, of necessity, always going to be inadequate: he obviously was not able, as a legal representative or a probation officer would be, to have interviewed the appellants and some of their families, friends, teachers and spiritual advisors, with a view to finding as much mitigatory material as possible. The result was that it was not practically possible for the appellants to present a mitigation case of any substance. These circumstances, in my view, cried out for the magistrate to call for a pre-sentencing report.

[22] I agree with Van Heerden J when she held, in S v Van Rooyen,20 the review of a sentence of two years imprisonment, half of which was suspended, imposed on an 18 year old first offender convicted on a charge of housebreaking with intent to steal and theft, that ‘it is difficult to see how the magistrate could properly have had regard to the “middle leg” of “the triad consisting of the crime, the offender and the interests of society” (see S v Zinn 1969 (2) SA 537 (A) at 540G), in order to determine the most appropriate form of punishment and the adaptation of that punishment to suit the needs of the accused without the consideration of a pre-sentencing report’. This, it seems to me, amounts to the practice that Olivier JA held to be a misdirection in S v Siebert,21 namely the sentencing of an accused person before ‘all of the facts and circumstances necessary for the responsible exercise’ of the discretion involved ‘have been placed before the court’.

[23] In S v Peterson en ‘n ander22 Olivier JA held that even when imprisonment is appropriate, such a sentence should not be imposed on a youthful offender ‘sonder behoorlike voorvonnis-verslae en getuienis aangaande die persoonlikheid, persoonlike omstandighede en agtergrond, en ‘n ernstige oorweging van al die toepaslike alternatiewe vonnisopsies nie’. In my view, the magistrate’s failure -- in the particular circumstances of this case -- to exercise the discretion vested in him to require a pre-sentencing report is an irregularity.

[24] This judgment does not suggest that in every case involving young offenders who are not legally represented, it is a prerequisite for the presiding officer to call for a pre-sentencing report and that his or her failure to do so will automatically amount to an irregularity. It is clear from cases such as S v Z en vier ander sake and S v Peterson en ‘n ander that the presiding officer has a discretion that is to be applied in accordance with the dictates of fairness and justice in each case, so that he or she may comply with his or her obligations in terms of s35(3) of the Constitution to protect, promote and fulfil the fundamental right to a fair trial of accused persons.23

[25] Mr Bursey, who appeared for the respondent, argued that the import of the cases was that the courts require pre-sentencing reports in cases involving offenders who are under the age of 18 years but do not require them in cases of offenders over that age, even if they may be desirable in some such cases. I have two difficulties with this submission. The first is that the cases do not express this as a rule and hence cannot be relied upon for the proposition for which Mr Bursey argued. The second is that such an approach is so formulaic that it may cause presiding officers to lose sight of their duty to conduct fair trials at the expense of the rigid application of what, at best, may be a rule of thumb: they may lose sight of justice in the mechanical application of the rule. The discretion of a presiding officer is not to be exercised in such a formulaic manner but must, instead, be exercised judicially, taking into account the facts and the circumstances of each case. The constitutional commitment to equality and the fundamental right of everyone to a fair trial require nothing less.

[26] It was argued by Mr Haydock that, apart from the problem of the failure of the magistrate to call for pre-sentencing reports, he over-emphasised the seriousness of the offence and the interests of society at the expense of the personal circumstances of the appellants and that the sentences he imposed are so severe as to induce a sense of shock.

[24] I am inclined to agree with these submissions. The fact that an offence is serious and prevalent is no licence to ignore or undervalue the personal circumstances of an accused person, especially when they are young and first offenders. In S v Kwalase,24 a case involving the review of a sentence of three years imprisonment, half of which was suspended, imposed on a 15 years and 11 months old youth with a previous conviction who had been convicted on a charge of robbery, Van Heerden J held:

‘Robbery is clearly a serious offence. However, while it is true that serious offences merit severe punishment, the Court must guard against an over-eager imposition of exemplary sentences and must not over-emphasise the gravity of the offence and the interests of the community at the expense of the interests and the personal circumstances of the particular offender … . Every individual case must be judged on its own particular facts. The community expects that serious crimes will be punished, but also expects at the same time that mitigating circumstances will be taken into account and that the accused’s particular position will be given thorough consideration.’

[25] I would add that, in this case, it appears to me that the sentences imposed by the magistrate are, indeed, substantially harsher than the usual sentences imposed in cases of this sort.

[26] In my view, it is not necessary to answer these questions definitively (or other questions such as whether the high speed chase to arrest the appellants is an aggravating factor). It is also inappropriate to do so, in the light of the conclusions that I have reached. As I have concluded that the magistrate sentenced the appellants before he had all of the information necessary for him to exercise his discretion properly, it is not possible for this court to substitute a sentence for the sentence that the magistrate imposed. The matter must accordingly be remitted to the magistrate so that he can make the necessary arrangements for pre-sentencing reports to be compiled and then to consider sentence afresh in the light of these reports and any other evidence that may be led.

[D] THE ORDER

[27] In the result, the appeal succeeds and the following order is made:

the sentences imposed by the magistrate on the appellants is set aside; and the matter is remitted to the magistrate for him to take the necessary steps to obtain pre-sentencing reports, to thereafter hear evidence in mitigation and to sentence the appellants.

______

C PLASKET

ACTING JUDGE

I agree

A ERASMUS

JUDGE

1 Commentary on the Criminal Procedure Act Cape Town, Juta and Co: 1987, 11-5.

2 1996 (2) SACR 283 (E), 287e. See too S v Melani and others 1996 (1) SACR 335 (E), 348i-349b, in which Froneman J held: ‘The purpose of the right to counsel and its corollary to be informed of that right … is thus to protect the right to remain silent, the right not to incriminate oneself and the right to be presumed innocent until proven guilty. Sections 25(2) and 25(3) of the [interim] Constitution make it abundantly clear that this protection exists from the inception of the criminal process, that is on arrest, until its culmination up to and including the trial itself. This protection has nothing to do with the need to ensure the reliability of evidence adduced at the trial. It has everything to do with the need to ensure that an accused is treated fairly in the entire criminal process: in the “gatehouses” of the criminal justice system (that is the interrogation process), as well as in its “mansions” (the trial court) …’.

3 Constitutional Criminal Procedure Durban, Butterworths: 1998, 302. For a good example of the difficulties that are faced by laypersons in the criminal process, see the judgment of Didcott J in S v Mngomezulu 1983 (1) SA 1152 (N), 1153A-E: ‘It is apparent from what I have written already that the accused was not legally represented, but ran his own defence. A simple peasant, he was obviously a stranger to the courts and to the procedures and techniques of litigation. The magistrate explained to him the "purpose of cross-examination", according to the record. What he was actually told does not emerge. I shall assume that he was given a full and correct explanation. It does not follow, however, that he understood what was really required of him, or that he had any idea of how to achieve it. One is not unaccustomed to trained lawyers, after all, to whom the art of cross-examination is a mystery, to whom it means little else than "putting" perfunctorily to the witness that he is not speaking the truth. More familiar still is the kind of performance one tends to get from laymen. Few have the wit to appreciate every point they should challenge or make, and to sort the wheat from the chaff in this respect. Few have the memories to store every detail of the evidence they hear, and not many more the literacy to note such as the trial progresses, or the means of doing so when it comes

to that, the writing pads and ballpoint pens which judicial officers, prosecutors and defence counsel take for granted and without which each would soon be at sea. And scarcely any know how to set about the task when the moment arrives. So many records one sees on appeal and review show a layman doing his best, only to find himself pulled up time and again for assertions instead of questions, or for questions that are muddled or irrelevant, repetitive or argumentative, until eventually he tires of the effort.’ See too Hlantlalala and others v Dyantyi NO and another 1999 (2) SACR 541 (SCA), paras 11-13.

4 [1963] USSC 42; 372 US 335 (1963), 344. This passage was cited with approval by Didcott J in S v Khanyile and another 1988 (3) SA 795 (N), 807I-808B.

5 See, on the distinction between negative and positive obligations that the Constitution imposes on the state, Government of the Republic of South Africa and others v Grootboom and others 2001 (1) SA 46 (CC); 2000 (11) BCLR 1169 (CC), paras 24 and 34-38; Residents of Bon Vista Mansions v Southern Metropolitan Local Council 2002 (6) BCLR 625 (W), paras 11-13. See generally De Vos ‘Pious Wishes or Directly Enforceable Human Rights?: Social and Economic Rights in South Africa’s 1996 Constitution’ (1997) 13 South African Journal on Human Rights 67, 78-91.

6 The cases of Bangindawo and others v Head of the Nyanda Regional Authority; Hlantlalala v Head of the Western Tembuland Regional Authority 1998 (3) SA 262 (Tk) and Mhlekwa v Head of the Western Tembuland Regional Authority; Feni v Head of the Western Tembuland Regional Authority 2001 (1) SA 574 (Tk) are examples of the infringement of the negative obligation imposed on the State: s7(2) of the Regional Authority Courts Act 13 of 1982 (Tk) provided that litigants in Regional Authority Courts were not allowed legal representation. This provision was held to be an unconstitutional infringement of the right to legal representation.

7 De Vos, op cit, 86.

8 1999 (2) SACR 421 (W), 426d.

9 2000 (1) SACR 358 (W), 360b-d.

10 See too Mgcina v Regional Magistrate, Lenasie and others 1997 (2) SACR 711 (W), 734c.

11 1997 (2) SACR 267 (V), 270e.

12 1998 (2) SACR 275 (E), 296d-e.

13 See S v Khanyile 1988 (3) SA 795 (N), 811B, in which Didcott J held that ‘[f]oisting a lawyer on somebody determined to do without one then infringes his rights. For the right to conduct his own defence, should he so wish, is no less essential to a fair trial than the right to be represented’.

14 S v Moos 1998 (1) SACR 372 (C), 381h-i.

15 Supra, 379h-380d.

16 The ages given in the charge sheet are confirmed by the SAP 69s that reflect the dates of birth of the appellants as 4 May 1982 and 10 July 1981 respectively.

17 1999 (1) SACR 427 (E).

18 Note that, at 432h, Erasmus J indicated that for purposes of his judgment, the term ‘jeugdige’ meant a person under the age of 21 years unless otherwise indicated.

19 At 440i-441g.

20 2002 (1) SACR 608 (C), 612c.

21 1998 (1) SACR 554 (SCA), 559a.

22 [2000] ZACC 24; 2001 (1) SACR 16 (SCA), para 20.

23 Note that s8(1) provides that, apart from the legislature, the executive and all organs of state, the judiciary is also bound by the Bill of Rights, and its members are hence bound by the obligations contained in s7(2).

24 2000 (2) SACR 135 (C), 141d-g.