S v Melamu (CA 91/2005) [2006] ZANWHC 50 (10 August 2006)

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: CA 91/2005

In the matter between:

MOTSEOTSILE AMOS

MELAMU APPELLANT

AND

THE

STATE RESPONDENT

CORAM: LANDMAN J et MOLWANTWA AJ

JUDGMENT:

APPEAL

LANDMAN J AND MOLWANTWA AJ:

INTRODUCTION

[1] The appellant was charged on 16 May 2001 in the Regional Court sitting at Atamelang with one count of rape. It was alleged that on 25 August 2000 he raped the complainant, a 13 year old girl. The appellant was unrepresented. He pleaded not guilty to the charge. He was found guilty of rape on 6 November 2001 and sentenced to eight years imprisonment.

[2] The appellant appeals against both his conviction and sentence. We entertained his appeal and on 9 June 2006 we ordered his immediate release.

AD POINT IN LIMINE

[3] The State raised a point in limine, that the appellant did not have the leave of the Regional Court to appeal as required by section 309B(1)(a) of the Criminal Procedure Act 51 of 1977. Adv Mtengwane, who appeared on behalf of the State, submitted that the matter should be struck off the roll.

[4] We are in agreement with her submissions and follow in this regards the view expressed in S v Dunster, S v Nqido 2002 (4) 749 (C0 at 754 F-G. However this court is entitled to review the proceedings of a lower court where there has been a failure of justice. This is such a case.

Application for condonation

[5] After being sentenced the appellant was taken to Rustenburg to serve 8 years imprisonment in the Juvenile Prison. On arrival at the prison he notified the prison authorities that he wanted to note an appeal against his conviction. But no one was prepared to listen to him. He was later admitted to hospital were he was treated for epilepsy and mental illness. He was unable to take the matter further because of his illness. His family members visited him in 2003. He discussed the possibility of noting an appeal. His brother promised to make an application to the Legal Aid Board so that he could be assisted by legally qualified people.

[6] In January 2004, his brother told him that the court record of the trial was missing. The lawyer was unable to form an opinion as to whether he should appeal or not. He persuaded his brother to instruct an attorney who will start to look into the possibility of finding the court record and noting an appeal. In March 2004 he received a message from the Prison Authority that his brother said that he is no longer pursuing the matter because the court record is still missing and the lawyer is unable to proceed with the matter.

[7] On 21 June 2004 he was told by the Prison Authorities that his appeal will be noted by Mr Nkomo of Nkomo Attorneys. Mr Nkomo informed him that he had good prospects of success on appeal in that:

(a) the trial Court failed to give him the opportunity to secure the services of a legal representative, despite his insistence that he needed one;

(b) the Court a quo failed to deal with his matter in terms of section 78 of the Criminal Procedure Act;

[8] We are of the opinion for reasons that follow that the appellant has good prospects of success. He has also adequately explained the details in launching the appeal.

Grounds of appeal

[9] The appellant relies on the following grounds of appeal:

9.1 That the Regional Magistrate erred by not analysing the evidence before it properly;

9.2 That the Court did not give the appellant the opportunity to seek legal representation. In fact the Court did not explain his rights to legal representation.

9.3 That the Court did not analyse the contents of the psychiatrist report with regard to the mental state of the accused.

The trial

[10] The charge was put to the appellant. He pleaded not guilty. The learned Regional Magistrate then said to him:

“COURT: Just before that, you confirm that your rights to legal representation were explained to you on the previous occasion. On that day you indicated that you will be conducting your own defence yourself. That was on the 17th of January 2001.

ACCUSED: That is correct.

COURT: And how do you plead to the charge?

ACCUSED: Not guilty.

COURT: Now having pleaded not guilty to the charge int.

ACCUSED: Guilty.

COURT: What do you say, do you say you plead guilty? What do you say accused?

Accused: I am guilty because I did not ….(indistinct) to make an application for an attorney.

COURT: What do you mean, do you want an attorney or what is the position?

ACCUSED: I do want an attorney.

COURT: You mentioned that you applied for legal aid?

ACCUSED: Yes.

COURT: When?

ACCUSED: In Atamaleng, I explained that I want an attorney.

COURT: Yes, but when did you apply for legal aid because I see this case is very old. Do you want this case to be postponed?

ACCUSED: No.

COURT: Are you going to conduct your own defence now so that we go on with this matter today?

ACCUSED: I am asking this court to proceed with this matter.”

[11] The complainant testified that on Friday 25 August 2000 when she returned from a shop she met the appellant in Manda Street and he raped her. She reported the rape to her mother on Monday and was taken to hospital.

[12] It is not clear whether this trial was conducted in camera but nevertheless the complainant was cross-examined about the alleged rape. The appellant put it to her that he did not rape her. She maintained that he had raped her.

[13] The medical report and other documents which are alleged to have been lost with the original charge sheet were handed in as exhibit. It was read into the record. According to the Magistrate it stated that: “… There is clinical evidence of chronic sexual abuse and sexual penetration.”

[14] The complainant’s mother testified that the complainant made a report to her on Monday in August that the appellant raped her during the month of August on her way from the shop. She said that complainant was then 14 years old.

[15] The appellant testified. He said he did not rape the complainant. Neither the Regional Court Magistrate nor the Prosecutor pointed out that his alibi did not relate to the date of the rape.

[16] The appellant called his aunt. Ms Betty Modisane. She said:

“I just wanted to testify to this court that the accused is mentally ill.

COURT: What is he suffering from, why do you say he is mentally ill? - - He is an epileptic patient.

COURT: But pertaining to this case, is there anything that you know? - - No. We have been trying to make an application to the Legal Aid for an attorney. They informed us that there are no forms.

COURT: Since when has the accused been suffering from fits? - - Since he was 13.”

[17] The Regional Magistrate then questioned the appellant and then referred the appellant in terms of s 77, 78 and 79 of the Criminal Procedure Act 51 of 1977 for observation.

[18] Section 77(1) and (1A) read with section 79 of the Criminal Procedure Act 51 of 1977 provides:

“(1) If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.

(1A) At proceedings in terms of ss 77(1) and 78(2) the court may, if it is of the opinion that substantial injustice would otherwise result, order that the accused be provided with the services of a legal practitioner in terms of s 3 of the Legal Aid Amendment Act, 1996 (Act 20 of 1996).”

[19] Section 78 of the Act on the other hand provides:

“If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect or for any other reason not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall in the case of an allegation or appearance of mental illness or mental defect, and may, in any other case, direct that the matter be enquired into and be reported on in accordance with the provisions of s 79.”

s 78 (6)

(i) in a case where the accused is charged with murder or culpable homicide or rape or another charge involving serious violence, or if the court considers it to be necessary in the public interest that the accused be –

(aa) detained in a psychiatric hospital or a prison pending the decision of a judge in chambers in terms of section 47 of the Mental Health Care Act, 2002;

(bb) admitted to and detained in an institution stated in the order and treated as if he or she were an involuntary mental care health user contemplated in section 37 of the Mental Health Care Act, 2002;

(cc) …

(dd) released subject to such conditions as the court considers appropriate; or

(ee) released unconditionally.”

[20] The trial resumed on 6 November 2001. The Magistrate did not ask the appellant whether he now wanted legal representation. In view of the psychiatric report the Magistrate should have considered it.

[21] The Magistrate read extracts from the report. The report is missing. And, so we were told, could not be traced. However, a call to the Sterkfontein Hospital secured a copy of the report. Counsel was invited to comment upon it. The report reads:

“I report as follows in terms of:

SECTION 79(4)(a) : NATURE OF THE ENQUIRY:

The above-named was admitted here on 14 September 2001 for assessment of his mental condition. He had psychiatric interviews, a psychological evaluation, physical and neurological examinations and routine blood tests. No special investigations were conducted due to financial constraints. He was kept under constant observation by the psychiatric nursing staff.

A social report was not obtained.

SECTION 79(4)(b) : DIAGNOSIS

Epilepsy.

Borderline Intellectual Functioning.

SECTION 79 (4)(c) : FITNESS

TO PLEAD

He is fit to stand trial.

SECTION 79 (4)(d) : RESPONSIBILITY

He is able to appreciate the wrongfulness of the alleged offence however, his ability to act in accordance with such an appreciation was diminished.

RECOMMENDATIONS:

He must remain on anti-epileptic treatment.”

[22] The appellant accepted the report. The Magistrate did not read out the Diagnosis “Epilepsy, Borderline Intellectual Functioning.”

So although the appellant was fit to stand trial it does not follow that he should stand trial unaided.

[23] The Magistrate asked him whether he closed his case. He did. The Magistrate accepted the evidence of the complainant and convicted the accused.

[24] The court heard evidence in mitigation of sentence. The accused, alleged to be 19, said he was 21. After supplying some personal details he asked for bail.

In imposing sentence the Magistrate said:

“Accused, according to the report, your criminal responsibility was diminished but you were only suffering from epilepsy. Your sentence is EIGHT YEARS IMPRISONMENT.

[25] It would seem that in making these remarks the learned Magistrate was mindful of s 78(7). This subsection reads:

“If the court finds that the accused at the time of commission of the act in question was criminally responsible for the act but that his capacity to appreciate the wrongfulness of the act or to act in accordance with an appreciation of the wrongfulness of the act was diminished by reason of mental illness or mental defect, the court may take the fact of such diminished responsibility into account when sentencing the accused.”

The section is inapplicable because the appellant’s criminal capacity was apparently not diminished by reason of a mental defect.

Nevertheless the diminished capacity caused by a non mental defect is relevant to sentence.

[26] The Criminal Procedure Act 51 of 1977, chapter 13 creates the machinery for the accused’s mental capacity to be properly investigated and reported upon.

Rights to legal representations

[27] The right to legal representation is a fundamental right enshrined by the Constitution of 1996. It is particularly required where the facts are complex, the consequences of a conviction are serious, and the accused is a minor or suffers from a mental or intellectual defect.

[28] On the strength of what the appellant said the Magistrate proceeded with the trial. Advocate Dikolomela argued that from this part of the record it is clear that the Magistrate did not explain the appellant’s right to legal representation. To take this point further we are of the view that he did not even act in terms of s 77(1A) when evidently the appellant was charged with rape and facing direct imprisonment and being undefended indeed substantial injustice could happen. The court ought to have appointed a legal representative for the appellant.

[29] Nonetheless even after the appellant had pleaded and the trial had proceeded, after the psychiatrist’s report was received and its recommendation was that the appellant was fit to stand trial but “…. …. ability to act in accordance with such appreciation was diminished.”, the Magistrate simply read out the report and asked the appellant if he understands the report which was then admitted as exhibit.

[30] The appellant’s mother spoke of mental illness and epilepsy. She should have been asked for further details on what the appellant did or how he behaved which she termed mental illness. She was never asked if the appellant was hospitalised for mental illness or certified at some stage.

[31] Epilepsy is a brain dysfunction, not in itself a mental illness as contemplated by s 78. Unless he suffers from a mental illness the epileptic should not be sent for observation. If the court on the facts finds that, inter alia, the accused should not reasonably have avoided the incident which led up to or constituted the crime, the accused did not act in the legal sense, and he should be discharged. See (R v Mkize 1959 (2) SA 260 (N)). See Du Toit et al, Commentary on the Criminal Procedure Act>, 13 to 12.

[32] We do not wish to go into the poor way in which evidence was adduced in this case. Nor do we wish to address the numerous errors made in the judgment by the Magistrate suffice to say that the evidence relating to the rape itself is not sufficient for any reasonable court to have convicted the appellant.

[33] As far as the question of section 78(6) is concerned, we are of the view that indeed the Magistrate should have returned a verdict of “not guilty by reason of mental illness or intellectual disability. .”

[34] In the circumstances the conviction and sentence was set aside.

______

A

A LANDMAN

JUDGE

OF THE HIGH COURT

____

B

C MOLWANTWA

ACTING

JUDGE OF THE HIGH COURT

Appearances:

For the Accused : ADV DIKOLOMELA

Instructed by :

For the State : ADV MTENGWANE

Instructed by : THE DIRECTOR OF PUBLIC PROSECUTIONS

Date of Hearing : 9 JUNE 2006

Date of Reasons : 10 AUGUST 2006