IN THE HIGH COURT OF SWAZILAND
JUDGMENT
HELD AT MBABANE REVIEW CASE NO. 06/2015
In the matter between:
REX
VS
MFUNWA FLOW NDLANGAMANDLA
Neutral citation: Rex v Mfunwa Flow Ndlangamandla (06/15) [2015] SZHC 122 (26 June 2015)
CORAM MAMBA J
CONSIDERED : 26 JUNE 2015
HANDED DOWN: 30 JUNE 2015
Criminal Procedure – unrepresented accused charged with a serious crime. Court failing to advise him of his rights to legal representation. This is a gross irregularity that resulted in a failure of justice in instant case as defined in section 327 of the Criminal Procedure and Evidence Act. Conviction and sentence of the accused set aside.
[1] This matter comes to court on automatic Review from the Shiselweni Principal Magistrate’s Court.
[2] The accused, who was unrepresented made his first appearance before the Magistrate’s Court on 13 March 2014 and his matter was immediately set down for trial on 16 April 2014. He was remanded into custody till 26 March 2014.
[3] There are two disturbing features in this case. First, the accused was never at any stage of these proceedings apprised of his rights to legal representation. Secondly, the statement of agreed facts that was signed and submitted to court, presumably in terms of section 272 of the Criminal Procedure and Evidence Act 67 of 1938, records that he was arrested and detained on 05 February 2014. He was tried, convicted and sentenced to a term of imprisonment for a period of 15 years on 9 May 2014 but his sentence was not back-dated to take into account the time he had already spent in custody whilst awaiting trial. This is a gross irregularity and is a violation of the provisions of article 16(9) of the Constitution.
[4] The accused was charged and convicted of rape of an 8 year old child. The crown alleged that the offence was accompanied by aggravating features as defined in section 185 bis of the Criminal Procedure and Evidence Act 67 of 1938 inasmuch as the accused had not used any protective device or condom in raping the complainant and the complainant was of a tender age. In finding the accused guilty on his own plea and based on the statement of agreed facts, the Learned Principal Magistrate did not indicate in his judgment whether indeed he found that the alleged aggravating factors were present or not.
[5] Another concern is that there are no reasons for sentence provided by the Court below.
[6] The accused person was, at the time of his trial 46 years old. There was no evidence whatsoever that he was familiar with court procedures and his rights on such matters. In mitigation, he mentioned two things only namely that he wished to give 3 goats to the family of the complainant as a fine for what he had done and that he had 3 little children back home who were left by themselves. Again, there is no evidence that the court advised him of his rights in this regard and how he could exercise them; for example, that he had the right to call witnesses in support of his mitigation. This is a serious misdirection too.
[7] From the above facts and especially the failure to apprise the accused of his rights before and during the trial, I cannot say that the accused had a fair trial. The said failure by the court was so gross that it resulted in a failure of justice. See Mahlalela, Boy v R 1987 – 1995 (2) SLR 228 at 230 where Shilubane AJ stated as follows;
‘There can be no doubt that the magistrate was obliged to advise the appellant of his right to obtain the services of a legal representative if he so wished.
In support of this I refer to the Court of Appeal case of Dlamini v R case No. 46 of 84 (unreported) where Welsh JA said at 10 of the judgment:
“Another fundamental right of an accused person is the right to be legally represented at his trial. That right is recognized not only by the common law (see S v Wessels and another 1966 (4) SA 89 (C) at 91 to 92) but also by section 171 of the Criminal Law and Procedure Act 67 of 1938, which provides tha ‘Every person charged with an offence is entitled to makehis defence at his trial and to have witnesses examined or cross-examined by his Counsel or other legal representative. …’”
The learned Judge of Appeal went on to say at 16 of the judgments that:
“It is, indeed, imperative that the accused should be asked, at the very outset of the trial, whether he wishes to be legally represented.”
See also S v Mabaso and another 1990 (3) SA 185 (A) in which th principle was also approved. Hoexter JA said the following at 201 of the judgment:
“At this juncture something must be said of the duty of a judicial officer pressing at criminal proceedings to explain to an unrepresented accused his right to legal representation. Our common law recognizes as fundamental the right of the individual to legal advice and to legal representation. The history of the right at common law to legal representation wa referred to in S v Wessels and another 1966 (4) SA 89 (C). See also the fuller discussion in S Selikowitz’s article Defen by Counsel in Criminal Proceedings under South African Law (1965-1966) Acta Juridica 53.”
See also S v Radebe; S v Mbonani 1988 (1) SA 191 (T) where Goldstone J at 195B referred to:
“a general duty on the part of the judicial officer to ensure tha unrepresented persons fully understand their rights and the recognition that in the absence of such, a fair and just trial may not take place.”
In this case not only did the magistrate not ask the appellant if he wished to have legal representation but was of the view that he was not obliged to make this inquiry. This in my view constitutes a serious irregularity in light of the authorities mentioned above.’
These proceedings were a mistrial which is no trial at all. The conviction and sentence imposed on the accused cannot be allowed to stand and is hereby set aside.
[8] In the event the Director of Public Prosecutions decides to try the accused again for this offence, it is advisable that this should be before another Judicial Officer.
MAMBA J
