Mafongosi v Regional Court Magistrate Nel & another
[2007] JOL 20706 (Ck)
(Butterworths) / Not reported in any LexisNexis Butterworths printed series.
Case No: / CAR 17 / 06
Judgment Date(s): / 30 / 08 / 2007
Hearing Date(s): / 22 / 06 / 2007
Marked as: / Unmarked
Country: / South Africa
Jurisdiction: / High Court
Division: / Bhisho
Judge: / Ndzondo AJ
Bench: / XM Petse J, MG Ndzondo AJ
Parties: / Dorcas Mafongosi (At); Regional Court Magistrate Nel (1R), Director of Public Prosecutions (2R)
Appearance: / Mr Bauer, Messrs XG Manjezi Attorneys (At); Adv Sotenjwa, Director of Public Prosecutions (R)
Categories: / Review – Action – Criminal – Procedural – Public
Function: / Confirms Legal Principle
Key Words
Criminal procedure – Legal representation – Withdrawal of – Further remand denied – Gross irregularity – Conviction set aside on review
Criminal Procedure Act 51 of 1977 – Criminal Procedure Act 51 of 1977, sections 73 and 342A – Criminal Procedure Act 51 of 1977, sections 73(2) and 342A (1)
Mini Summary
On 1 December 2003, after several postponements and after two legal representatives had withdrawn, the applicant was finally charged on 4180 counts of fraud. She had tried to obtain the services of fingerprint expert and, because she was indigent, had been unable to do so. At the start of the proceedings a third legal representative, also from the Legal Aid Board, withdrew for "ethical reasons". He informed the magistrate that the absence of a fingerprint expert left him in an "unturnable (sic)" position. The magistrate replied that in the circumstances the applicant's right to legal representation had expired and she would not be afforded any further remand to secure legal representation. The trial proceeded and she was convicted and sentenced to 25 years' imprisonment. In this application she applied for review of the magistrate decision along with condonation for the delay in bringing the proceedings before the court. The magistrate, the first respondent, did not oppose the application. The second respondent contended that the applicant had chosen to conduct her own defence, the charges against her involved large sums of money and the evidence against her was not so complicated that she would not have been able to defend herself against it.
Held that the magistrate's conduct in deciding to proceed with the case without having heard the applicant had been grossly irregular and warranted interference. Although the applicant had not asked for a postponement, there was a possibility that she would have done so if she had been advised that she had a right to do so when her attorney withdrew. She was given no choice. The second respondent's submission that the evidence was not complicated was speculative. The evidence that the State had relied on had been provided by an expert and was technical. The applicant's cross-examination of it could hardly be described as effective. The applicant had made out a satisfactory case for condonation. The review succeeded and the conviction was set aside. The court commented that the director of public prosecutions was within its rights to prosecute the applicant afresh.
NDZONDO AJ:
[1]This is a review application in which the applicant, duly represented by Mr Bauer, seeks an order, inter alia, reviewing and setting aside the decision of the first respondent when she appeared before him on 4180 charges of fraud at Mdantsane on 1December 2003 and for condonation of the delay in bringing these proceedings before court.
[2]The applicant, who was not represented at the trial in the court a quo, was convicted of the aforementioned charges and was sentenced to an effective term of imprisonment of 25 years.
[3]It is common cause that the applicant was initially represented in the matter by MrNgwenya, an attorney appointed by the Legal Aid Board, who withdrew on the morning of the date of trial for what he termed "ethical reasons" as the attorney of record before the trial against the applicant commenced.
[4]I think it is essential, for purposes of this review judgment, to briefly set out the circumstances which led to the withdrawal of Mr Ngwenya as the applicant's attorney and the applicant's decision to conduct her own defence.
[5]There were various attorneys employed by the Legal Aid Board who appeared on behalf of the applicant before the case commenced, such as Mr Ntloze, who also withdrew as the applicant's attorney due to ethical reasons, Miss Yakhe, who fell ill a day prior to the hearing of the matter and as a result thereof one Mr Bambiso had to stand in for her and the matter had to be postponed.
[6]When the matter finally resumed on 1 December 2003 after several postponements, Mr Ngwenya, also from the Legal Aid Board, appeared for the applicant and the following is what happened on this particular day:
"Presiding officer in this matter is Mr Nel, for the State, PSWJ van Zyl, the interpreter is Mrs Cawe and for the accused currently on record, attorney MrNgwenya, instructed by the Legal Aid Board. Your worship, the record will indicate that this matter is set down for trial today and the State is ready to proceed, two witnesses are present. I am told by Mr Ngwenya that there may be an application from his side to withdraw as attorney of record.
Court:
Thank you, Mr Ngwenya.
Mr Ngwenya:I confirm my appearance for the accused in this matter, first of all I would like to thank the Court for affording my client an opportunity to seek the services of an expert, fingerprint expert that is, this matter was scheduled to be heard on the 30th of April and then the defence prevailed upon Mr van Zyl, I would like to thank, Mr van Zyl who is for the State for agreeing to the postponement, however, Your Worship, that did not materialise, my client pleads poverty, so she could not secure the services of an expert, I therefore find myself in an unturnable (sic) position, I have therefore decided to withdraw from the case for ethical reasons, if it may Please the Court, Your Worship.
Court:
Have you informed your client of the position then that you wish to withdraw?
Mr Ngwenya:
Yes, Your Worship, I have informed my client and she is ready to conduct her own defence.
Court:
Thank you, that then being the case, it is so that I have talked to the parties in chamber (sic) before and were aware of this application that was going to take place. It is so that previous (sic) an attorney was appointed by the Legal Aid Board and he seems to have withdrawn for the same reason that Mr Ngwenya wishes to withdraw today. I cannot force Mr Ngwenya to proceed with the matter, so I have no other option but to let him withdraw as attorney of record. It is so that I had indicated to him in chambers that the position would then be such that your right to legal representation has then now expired and you will not be afforded any further remand in this matter to secure legal representation. Mr Ngwenya has informed me that you are now ready to proceed and conduct your own defence, is that correct?
Accused:
Yes, Your Worship."
[7]In her affidavit the applicant states, inter alia, that the effect of the first respondent's statement that her right to legal representation had expired and will not be afforded any further opportunity of a postponement to secure legal representation was to subject her to an instant trial without affording her another opportunity to obtain legal representation or ensuring that she had an adequate opportunity to prepare her defence bearing in mind that at all material times she had a legal representative who had full control over her case and consequently she never prepared to present her own defence by herself; at the stage that Mr Ngwenya withdrew as the attorney of record, the court, in terms of section 73(2) of the Criminal Procedure Act 51 of 1977 ("the CPA"), if it was of the opinion that ordering the trial to proceed without legal representation would result in substantial injustice, order that a legal adviser be assigned to her at State expense and, accordingly, his failure to apply his mind to this question, resulted in an unfair trial.
[8]She goes on to say that the first respondent knew or ought to have known that she is an indigent accused arraigned on numerous complex charges in respect of which the State had to fly a specially trained prosecutor from Pretoria and which, in the event of a conviction, would lead to a sentence which would, without doubt, materially prejudice her.
[9]The first respondent has not filed any opposing papers and abides the decision of the court.
[10]Mr Mbusi, a Senior State Advocate at the office of the second respondent in Bhisho, has filed an affidavit on behalf of the second respondent.
[11]He has taken a preliminary legal point to the effect that the applicant has unduly delayed in launching these proceedings and on the merits has contended, inter alia, that the applicant chose to conduct her own defence after her attorney had withdrawn from the case and never applied for the case to be postponed, and furthermore, although the charges are serious in the sense that they include a number of fraud charges of a large sum of money, the evidence presented was not complicated to the extent that the applicant would not have been unable to champion her own defence without the assistance of a legal representative and that her legal representative must have informed her that she was linked to these crimes by her fingerprints which were found on the pension vouchers.
[12]At the hearing of this matter, Mr Bauer referred the court to section 342A of the CPA and submitted that the first respondent had the provisions of this section in mind when he stated that the applicant's "right to legal representation had expired".
[13]The provisions of section 342A(1) are as follows:
"Unreasonable delays in trial proceedings
(1)
A court before which criminal proceedings are pending shall investigate any delay in the completion of proceedings which appears to the court to be unreasonable and which could cause substantial prejudice to the prosecution, the accused or his or her legal representative, the State or a witness."
[14]It becomes clear from a reading of the provisions of the section that it could only have been applicable if the applicant had applied for a postponement of the case. I agree with Mr Sotenjwa in his submissions that the section was not relevant whatsoever at that stage because there was no delay that the magistrate had to investigate and consequently I find that there is no merit in Mr Bauer's argument.
[15]However, I am convinced, with regards to what happened in the office and in court that his conduct was so grossly irregular as to warrant interference by this Court.
[16]It is quite clear that the first respondent took a decision in his office that he is not going to afford the applicant any further opportunity of obtaining the services of another attorney after Mr Ngwenya had informed him that he intended to seek leave to withdraw as the attorney of record when the matter was called.
[17]Mr Ngwenya must have informed the applicant what the first respondent had said to him in his office namely, that her "right to legal representation had expired" and it accordingly follows that it is undoubtedly for this reason that she decided to conduct her own defence and not apply for a further postponement of the case.
[18]It was grossly irregular for the first respondent to simply decide, after Mr Ngwenya had informed him that he intended to withdraw as the attorney of record, to proceed with the case without having heard the applicant on the issue.
[19]Mr Sotenjwa also conceded this, correctly in my view, although he referred to it as an oversight on the part of the first respondent but submitted that it was not a fatal irregularity. I doubt if this was an oversight because, as stated above, he took a decision in his office that he is not going to afford the applicant another opportunity to engage the services of another legal representative and by so doing he ought reasonably to have known that this was in effect a denial to her of her constitutional right to be legally represented and consequently a denial to a fair trial.
[20]There are numerous cases that have come before the courts in which this kind of conduct has come under judicial scrutiny. I shall refer only to those cases that have been decided after the coming into effect of the Constitution of the Republic of South Africa, 1996 ("the Constitution"), but before I do so, I deem it appropriate that I refer to the relevant sections of the CPA and the Constitution.
[21]Section 73(2) of the CPA reads as follows:
"Accused entitled to assistance after arrest and at criminal proceedings
...
(2)
An accused shall be entitled to be represented by his legal adviser at criminal proceedings, if such legal adviser is not in terms of any law prohibited from appearing at the proceedings in question.
(2A)
Every accused shall–
...
(e)
at his or her first appearance in court,
...
(2B)
Every accused shall be given a reasonable opportunity to obtain legal assistance.
(2C)
If an accused refuses or fails to appoint a legal adviser of his or her own choice within a reasonable time and his or her failure to do so is due to his or her own fault, the court may, in addition to any order which it may make in terms of section 342A, order that the trial proceed without legal representation unless the court is of the opinion that that would result in substantial injustice ..."
[22]Section 35(3)(f) and (g) of the Constitution provides:
"(3)
Every accused person has a right to a fair trial, which includes the right–
...
(f)
to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
(g)
to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly."
[23]In S v McKenna 1998 (1) SACR 106 (C) the court held, inter alia, that the right to legal representation has long been recognised in this country and is today guaranteed by section 35(3) of the Constitution and if the right to legal representation is to have any meaning, it must include the right to be afforded a reasonable opportunity of securing it. The denial of such an opportunity, when it is demanded, is a denial of the right to legal representation, and thus of the constitutionally guaranteed right to a fair trial, that the magistrate committed a gross irregularity when he denied the appellant the opportunity of securing a legal representative and on this ground alone, the conviction had to be set aside.
[24]In S v Moos 1998 (1) SACR 372 (C) the court held that since the coming into effect of the Constitution, it was required of presiding officers in criminal trials to advise an accused that he could be represented by a legal representative of his choice or where substantial injustice might otherwise result, that he was entitled to receive legal representation at State expense and substantial injustice would exist in those cases where an accused was arraigned on a charge which, in the event of a conviction, might lead to imprisonment. The court held further that as the accused had not been informed of his right to receive legal representation at State expense, the option of exercising that right had been denied to him and accordingly his trial had not been conducted in accordance with generally accepted notions of basic equity and justice, that an irregularity had occurred resulting in a failure of justice (see also S v Mkhondo 2001 (1) SACR 49 (W) [also reported at [2001] JOL 7683 (W)–Ed]).
[25]In the present matter the applicant did not ask for a postponement. However, the possibility that she would have done so had she been advised that she had a right to make such an application after the withdrawal of her attorney from the case cannot be excluded. In fact as alluded to above, she was given no choice but to proceed with her defence. Furthermore, the fact that she had initially sought legal assistance from the Legal Aid Board is a clear indication that she was not desirous of defending herself at the trial and her decision to do so was not an informed one and to me she felt compelled to do so.
[26]In S v Pienaar 2000 (2) SACR 143 (NC) [also reported at [2000] JOL 6550 (NC)–Ed] the accused, after being informed of his right to legal representation and asking for a State-appointed legal representative, dismissed his legal representative because the latter was not conversant in Afrikaans and the case proceeded without the accused having legal representation. A policy decision had been taken by the Justice Department to introduce English as the language of record in the courts of Northern Cape Province. It was held that the magistrate ought to have gone further by making it clear to the accused that he had the right to insist on a State-appointed legal representative conversant in his home language. Buys J was not persuaded that the accused, subsequent to the dismissal of his legal representative, made an informed and voluntary decision to proceed in his own defence. His earlier decision prevailed and consequently he found that the magistrate's failure to explain the accused's right to legal representation is a breach of his right to a fair trial and that the trial court had committed an irregularity (see also S v Melani & others 1996 (1) SACR 335 (E) [also reported at [1996] 1 AllSA 137 (E)–Ed]) in which Froneman J at 350c remarked that "a right can only validly be waived if the person who abandons the right knows and understands what he or she is abandoning".