S v Malahlela (A703/05 , T65/05) [2005] ZAGPHC 63 (6 June 2005)

A703/2005/SGIN THE HIGH COURT OFSOUTH AFRICA(TRANSVAALPROVINCIAL DIVISION)DATE:06/06/2005REPORTABLEIN THE ORDINARY COURSE OF EVENTSMagistrateSEKGOSESECase No:65/2005High Court Ref No:1021THE STATE VGEORGE MATOME 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 JUDGMENTJORDAAN, JThe accused was charged in the magistrate’s court at Sekgosese of assault with intent to do grievous bodily harm. He initially pleaded guilty but after questioning in terms of section 112(1)(b) of Act 51 of 1977 his plea was changed to one of not guilty in terms of section 113of the Act.In his plea explanation the following transpired:“Q: Why do you plead guilty?A: I was with her. We were from

shebeenQ: Were you with a complainant on that day?A: YesQ: What did you do to the complainant?A: I scratched her with a scissor on the headQ: Did she bleedA: YesQ: Did she bleed profuselyA: She bled and the blood stopped flowingQ: Why did you stab her with scissorA: She did not want me to go home. She wanted me to go back with her late shebeenQ: You know that pair of scissors can injure a person seriouslyA: YesQ: And yet you used it to injure complainantA:I did not think so. I was drunk and complainant throttled me and grabbed me by my private parts.” (sic)The state then calledto complainant the case Ms Grace Sebola. She testified that the accused is her ex-lover. She said that he forced her to gowith him tohis home and she refused. She left him. She crossedastreet to leave him and then he produced a pair of scissorsand stabbed her with it. She said that the accused stabbed her once on her left ear. She said she was treated in hospital. After the stabbing she became unconscious. When she regained consciousness the accusedwas gone. She exhibited a scarof 7 cm longwith seven stitches onher left temple. There was another scarofnearly 2 cm long with three stitches.Under cross-examination the accused asked only one question.The record reads as follows:“Q: Did we not leave that shebeen as you fought with another woman?A:I wanted my wrist watch from your younger sister.”When the

matter came before me on automatic review Iinter aliadirected the following query to the magistrate:“[2]The accusedasked but one question in crossexamination which hadnothing to do with his defence as set out in his plea. Why did the magistrate not assist the unrepresented accused in at least putting his version to the complainant?”In his reply the magistrate says the following:“2. The accused initially pleaded guilty to the charges. After invoking provision of section 112(1)(b) of Act 51 of 1977. The court acted in terms of section 113 to file a plea of not guilty for the accused. The court also explained at length the accused’s crossexamination rights and accused indicated that he appreciated those rights.The court was therefore not of the opinion to assist the accused in his crossexamination.”I thereafter referred the matter to the office of the Director of Public Prosecutions for their comments. Advocate Davhanaremarks as follows:“5. The following is respectfully submitted:5.1 It is trite law that the court has a particular duty to assist an undefended accused person in the course of a trial. It is therefore imperative of the presiding officerto constantly remind himself/herself of assisting the undefended accused. This duty extends into the sentencing process, and includes the duty to carefully explain the rights of the accused to go about cross-examining the State

witnesses by way of refuting incriminating evidence against him or her and/or admitting and explain in as far as he/she knows about the event.5.2In this regard the court inS v Shiburi2004 (2) SACR 314(WLD) at paragraphs 88-91, pointed out that:‘(I)t, in the first place certainly, is a magistrate’s duty to inform an accused of her or his constitutional rights and, as regards his right to legal representation, to do so promptly.It is also the duty of the magistrate to explain the trial procedure to the undefended lay person and the nature and implications of the various elections she or he may make during the course thereof, including those as regards and explanation of her or his plea; crossexamination of witnesses called by the prosecution; giving evidence and/or calling witnesses in his defence; addressing the court on the merits; giving evidence; calling witnesses and addressing the court on sentence; and the rights to appeal or review.’5.3In the present case it is evident form the record that an undefended accused, in cross-examining the complainant, asked one irrelevant question.5.4 It is my opinion that the magistrate’s failure to invite the accuse to put relevant question(s) in crossexamining the complainant was uncalled for as indicated inS v Shiburi, above. In fact it is also the magistrate’s duty to assist the undefended accused, for example, in phrasing questions and

put relevant questions to the State witnesses.5.5 In view of the above case law it is submitted that the magistrate’s failure to assist the undefended accused in the circumstances amounted to an unfair trial s it violated his constitutional rights as contemplated in section 35(3) of the Constitution.”I agree with these views. The accused did not have a fair trial. Under these circumstances the conviction cannot stand. Thefollowing order is thereforemade:The conviction and sentence is set aside.E JORDAANJUDGE OF THE HIGH COURTI agreeM ISMAILACTING JUDGE OF THE HIGH COURT65/2005

A

703/2005

/SGIN THE HIGH COURT OF

SOUTH AFRICA

(TRANSVAALPROVINCIAL DIVISION)

(

TRANSVAAL

PROVINCIAL DIVISION)

DATE:06/06/2005

DATE:

06/06/2005

REPORTABLE

IN THE ORDINARY COURSE OF EVENTS

Magistrate

SEKGOSESE

Case No:

65/2005

High Court Ref No:

1021

THE STATE V

GEORGE MATOME MALAHLELA

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

REVIEW JUDGMENT

JORDAAN, J

The accused was charged in the magistrate’s court at Sekgosese of assault with intent to do grievous bodily harm. He initially pleaded guilty but after questioning in terms of section 112(1)(b) of Act 51 of 1977 his plea was changed to one of not guilty in terms of section 113of the Act.In his plea explanation the following transpired:“Q: Why do you plead guilty?A: I was with her. We were from shebeenQ: Were you with a complainant on that day?A: YesQ: What did you do to the complainant?A: I scratched her with a scissor on the headQ: Did she bleedA: YesQ: Did she bleed profuselyA: She bled and the blood stopped flowingQ: Why did you stab her with scissor

The accused was charged in the magistrate’s court at Sekgosese of assault with intent to do grievous bodily harm. He initially pleaded guilty but after questioning in terms of section 112(1)(b) of Act 51 of 1977 his plea was changed to one of not guilty in terms of section 11

3

of the Act.In his plea explanation the following transpired:“Q: Why do you plead guilty?A: I was with her. We were from shebeenQ: Were you with a complainant on that day?A: YesQ: What did you do to the complainant?A: I scratched her with a scissor on the headQ: Did she bleedA: YesQ: Did she bleed profuselyA: She bled and the blood stopped flowingQ: Why did you stab her with scissor

A: She did not want me to go home. She wanted me to go back with her late shebeenQ: You know that pair of scissors can injure a person seriouslyA: YesQ: And yet you used it to injure complainantA:I did not think so. I was drunk and complainant throttled me and grabbed me by my private parts.” (sic)

A: She did not want me to go home. She wanted me to go back with her late shebeenQ: You know that pair of scissors can injure a person seriouslyA: YesQ: And yet you used it to injure complainantA:

I did not think so. I was drunk and complainant throttled me and grabbed me by my private parts.” (

sic

)

The state then calledto complainant the case Ms Grace Sebola. She testified that the accused is her ex-lover. She said that he forced her to gowith him tohis home and she refused. She left him. She crossedastreet to leave him and then he produced a pair of scissorsand stabbed her with it. She said that the accused stabbed her once on her left ear. She said she was treated in hospital. After the stabbing she became unconscious. When she regained consciousness the accusedwas gone. She exhibited a scarof 7 cm longwith seven stitches onher left temple. There was another scarofnearly 2 cm long with three stitches.Under cross-examination the accused asked only one question.The record reads as follows:

The state then called

to complainant the case Ms Grace Sebola. She testified that the accused is her ex-lover. She said that he forced her to go

with him to

his home and she refused. She left him. She crossed

a

street to leave him and then he produced a pair of scissors

and stabbed her with it. She said that the accused stabbed her once on her left ear. She said she was treated in hospital. After the stabbing she became unconscious

. When she regained consciousness the accused

was gone. She exhibited a scar

of 7 cm long

with seven stitches on

her left temple

. There was another scar

of

nearly 2 cm long with three stitches.Under cross-examination the accused asked only one question.

The record r

eads as follows:

“Q: Did we not leave that shebeen as you fought with another woman?A:I wanted my wrist watch from your younger sister.”

“Q: Did we not leave that shebeen as you fought with another woman?

A:

I wanted my wrist watch from your younger sister.”

When the matter came before me on automatic review Iinter aliadirected the following query to the magistrate:

When the matter came before me on automatic review I

inter alia

directed the following query to the magistrate:

“[2]The accusedasked but one question in crossexamination which hadnothing to do with his defence as set out in his plea. Why did the magistrate not assist the unrepresented accused in at least putting his version to the complainant?”

“

[

2

]

The a

ccused

asked but one question in cross

examination which ha

d

nothing to do with his defence as set out in his plea. Why did the magistrate not assist the unrepresented accused in at least putting his version to the complainant?

”

In his reply the magistrate says the following:

“2. The accused initially pleaded guilty to the charges. After invoking provision of section 112(1)(b) of Act 51 of 1977. The court acted in terms of section 113 to file a plea of not guilty for the accused. The court also explained at length the accused’s crossexamination rights and accused indicated that he appreciated those rights.The court was therefore not of the opinion to assist the accused in his crossexamination.”

2. The accused initially pleaded guilty to the charges. After invoking provision of section 112(1)(b) of Act 51 of 1977. The court acted in terms of section 113 to file a plea of not guilty for the accused. The court also explained at length the accused’s crossexamination rights and accused indicated that he appreciated those rights.The court was therefore not of the opinion to assist the accused in his crossexamination.”

I thereafter referred the matter to the office of the Director of Public Prosecutions for their comments. Advocate Davhanaremarks as follows:“5. The following is respectfully submitted:

I thereafter referred the matter to the office of the Director of Public Prosecutions for their comments. Advocate Davhana

remarks as follows:“5. The following is respectfully submitted:

5.1 It is trite law that the court has a particular duty to assist an undefended accused person in the course of a trial. It is therefore imperative of the presiding officerto constantly remind himself/herself of assisting the undefended accused. This duty extends into the sentencing process, and includes the duty to carefully explain the rights of the accused to go about cross-examining the State witnesses by way of refuting incriminating evidence against him or her and/or admitting and explain in as far as he/she knows about the event.5.2In this regard the court inS v Shiburi2004 (2) SACR 314(WLD) at paragraphs 88-91, pointed out that:

5.1 It is trite law that the court has a particular duty to assist an undefended accused person in the course of a trial. It is therefore imperative of the presiding officer

to constantly remind himself/herself of assisting the undefended accused. This duty extends into the sentencing process, and includes the duty to carefully explain the rights of the accused to go about cross-examining the State witnesses by way of refu

t

ing incriminating evidence against him or her and/or admitting and explain in as far as he/she knows about the event.

5.2

In this regard the court in

S v Shiburi

2004 (2) SACR 314(WLD) at paragraphs 88-91, pointed out that:

2004 (2) SACR 314

‘(I)t, in the first place certainly, is a magistrate’s duty to inform an accused of her or his constitutional rights and, as regards his right to legal representation, to do so promptly.It is also the duty of the magistrate to explain the trial procedure to the undefended lay person and the nature and implications of the various elections she or he may make during the course thereof, including those as regards and explanation of her or his plea; crossexamination of witnesses called by the prosecution; giving evidence and/or calling witnesses in his defence; addressing the court on the merits; giving evidence; calling witnesses and addressing the court on sentence; and the rights to appeal or review.’

‘(I)t, in the first place certainly, is a magistrate’s duty to inform an accused of her or his constitutional rights and, as regards his right to legal representation, to do so promptly.

It is also the duty of the magistrate to explain the trial procedure to the undefended lay person and the nature and implications of the various elections she or he may make during the course thereof, including those as regards and explanation of her or his plea; crossexamination of witnesses called by the prosecution; giving evidence and/or calling witnesses in his defence

; addressing the court on the merits; giving evidence; calling witnesses and addressing the court on sentence; and the rights to appeal or review.’

5.3In the present case it is evident form the record that an undefended accused, in cross-examining the complainant, asked one irrelevant question.5.4 It is my opinion that the magistrate’s failure to invite the accuse to put relevant question(s) in crossexamining the complainant was uncalled for as indicated inS v Shiburi, above. In fact it is also the magistrate’s duty to assist the undefended accused, for example, in phrasing questions and put relevant questions to the State witnesses.5.5 In view of the above case law it is submitted that the magistrate’s failure to assist the undefended accused in the circumstances amounted to an unfair trial s it violated his constitutional rights as contemplated in section 35(3) of the Constitution.”

5.3

In the present case it is evident form the record that an undefended accused, in cross-examining the complainant, asked one irrelevant question.5.4 It is my opinion that the magistrate’s failure to invite the accuse to put relevant question(s) in crossexamining the complainant was uncalled for as indicated in

S v Shibu

r

i

, above. In fact it is also the magistrate’s duty to assist the undefended accused, for example, in phrasing questions and put relevant questions to the State witnesses.5.5 In view of the above case law it is submitted that the magistrate’s failure to assist the undefended accused in the circumstances amounted to an unfair trial s it violated his constitutional rights as contemplated in section 35(3) of the Constitution.”

I agree with these views. The accused did not have a fair trial. Under these circumstances the conviction cannot stand. Thefollowing order is thereforemade:The conviction and sentence is set aside.

I agree with these views

. The accused did not have a fair trial. Under these circumstances the conviction cannot stand. The

following order is therefor

e

made:

The conviction and sentence is set aside.

E JORDAANJUDGE OF THE HIGH COURTI agreeM ISMAILACTING JUDGE OF THE HIGH COURT

E JORDAAN

JUDGE OF THE HIGH COURT

I agreeM ISMAIL

ACTING JUDGE OF THE HIGH COURT