IN THE HIGH COURT OF SWAZILAND
JUDGMENT
REPORTABLE
Crim. App. No. 21/14
In the matter between
WONDER CHAMBERS 1st Appellant
REGGIE CHAMBERS 2nd Appellant
and
REX Respondent
Neutral citation: Wonder Chambers & Another v Rex (21/14) [2015] SZHC 52 (27 March 2015)
Coram: Mamba J
Heard: 02 February 2015
Delivered: 27 March 2015
[1]Criminal Law and Procedure – accused charged with 2 counts of housebreaking with intent to steal and theft. Taken into custody and given 12 days to prepare for his trial. On trial date, Prosecutor adding seven more counts of the same crime. Accused applying for postponement of his trial on account of short notice. Application summarily dismissed by Court. Trial lasting 3 days and accused found guilty and sentenced to lengthy term of imprisonment. Accused appeals inter alia, on magistrate’s refusal for postponement.
[2]Criminal law and Procedure – application for postponement – section 141 and 142 of Act 67 of 1938 (as amended) – trial court has judicial discretion to grant or refuse such. Good cause must be shown to justify grant of postponement.
[3]Criminal law and Procedure – refusal to grant a postponement where an undefended accused has not been afforded sufficient time to consider his defence constitutes an irregularity so gross as to vitiate the trial per section 327 of Act 67 of 1938. Conviction and sentence set aside.
[1] The Appellants herein were convicted and sentenced by the Manzini Magistrate’s court on 26 July, 2011. Mr Wonder Chambers, the first appellant, was convicted of eight counts of housebreaking with intent to steal and theft and was sentenced to a total of eleven years and ten months of imprisonment. His brother, Mr Reggie Chambers, who is the second appellant was convicted of five counts of the same crime and received a sentence of eight years and five months of imprisonment.
[2] The appellants were tried together with one Nkosinathi Sifiso Khumalo, who was the third accused during the trial in the court below. He is not one of the appellants herein and for that reason, I do not think any useful purpose would be served by any reference to him in this judgment. This is particularly the case in view of the nature of the appeal herein, which shall emerge hereunder.
[3] The appellants were not represented by counsel during their trial in the court a quo and in this appeal. Their rights to legal representation were, however, explained to them in either court. Each elected to conduct his own defence.
[4] The appellants have, broadly, complained that they ought not have been convicted of any of the various counts they were convicted on as the evidence led by the crown was insufficient to warrant such conviction. Again, they have in general terms complained that their respective cumulative sentences are too harsh or induce a sense of shock and ought to be interfered with by this court.
[5] The second appellant has also filed two grounds of appeal; namely
(a) That he was not given sufficient time to prepare for his defence or trial and
(b) that he was not afforded the opportunity to call his witnesses to testify on his behalf in support of his defence. Although the first ground stated herein was not raised by the first Appellant in his notice of appeal, he supported the second appellant on this. He made common cause with him.
[6] When the appellants appeared before me on 8 September 2014, the first appellant argued that the Court record – of the proceedings in the court a quo – was inaccurate inasmuch as it had several omissions and incorrect information in it. I then postponed the matter to 18 September 2014 and ordered that the appellant must file such complaint in writing. On that date he submitted his written complaint and the court ordered that this complaint must be served on the trial magistrate who, together with the crown were permitted to file their response thereto, should they be so advised or minded.
[7] The sum total of what the first appellant complained about was that the court record reflected that after being sworn in to present his case, he simply said he had nothing to say, whereas in truth and in fact he had given a story denying his involvement in the commission of the nine counts he was facing. He also disputed the question appearing at page 16-17 of the record that was recorded as having been asked of him by the third accused. The record reflects that the third accused asked him why he was saying he had nothing to say yet some of the stolen items were found in his house. The appellant said the third accused had not posed this question to him but had asked him how some of the items including an electric grinder had been found behind his house.
[8] Both the crown prosecutor who was involved in the court a quo and presiding magistrate disputed these allegations by the first appellant. They maintained that the record was accurate and a true reflection of what took place in court. In a very short or terse report by the trial magistrate she stated that
‘2. The court recorded everything that was said by the appellants, and as such the allegations that some issues were omitted in the court record are unfounded and undermines the dignity of the court.’
[9] To bolster his argument that the court record had some vital or essential omissions in it, both appellants pointed out two significant things namely:
(a) First, that before the trial started on 18 July 2011 the second appellant indicated to the trial magistrate that he needed more time to prepare for his defence and sought a postponement of the case. This application was refused by the very same trial magistrate. However, this is not reflected or captured in the court record.
(b) Secondly, the trial magistrate pronounced in open court, a sentence of five months of imprisonment on the first appellant in respect of count nine (9) but this is not reflected anywhere in the court record. It is only reflected in the Committal Warrant used to lodge the appellant in prison.
[10] It is common cause that a magistrate’s court is one of record. It is further common cause and a matter of common notoriety that the evidence in that court is, regrettably, recorded manually by the court. It is common cause further that in this case, the evidence of the appellants was given in SiSwati and translated or interpreted into English by an interpreter. It was not recorded verbatim in the essence of that word. It is not inconceivable that certain information – vital information too – could be lost in the translation or interpretation. This again is a matter of common notoriety of which this court is mindful. I emphasise and caution that this is a general observation only. It is not and does not purport to be a factual finding of any kind or sort.
[11] What is significant though in this appeal is that a very important and significant aspect or stage of the proceedings in the court a quo is totally missing. It is not recorded at all. This is the application for a postponement that was made by the second appellant on 18 July 2011. This is, by all account a serious omission. I deal with this in the following segment of this judgment.
[12] The appellants first appeared before the court a quo on 6 July, 2011. They had their rights to legal representation explained to them and each of them opted to conduct their own defence. The appellants were at the time facing two counts only. The case was then set down for trial on 18 July 2011 and they were reminded into custody.
[13] On 18 July 2011, all the parties were ready to proceed with the case except the appellants herein. The crown then made an application to file and submit an amended charge sheet. This charge sheet contained seven more counts of housebreaking with intent to steal and theft against the appellants. This application was not opposed by any of the accused and was thus granted by the court. There is no indication on the court record that these unrepresented accused persons had any prior notice of this sudden change of events.
[14] The appellants state that after the granting of the application for the said amendment of the charge sheet, the second appellant then applied for a postponement of the case. He alleged that he had had insufficient time to prepare for his defence or case. His application was summarily dismissed by the learned trial magistrate who indicated that the case had been scheduled for trial on that day. The first appellant candidly informed this court that he did not make an application for a postponement. He stated though that he wanted to make such application and for the reasons stated by his co-accused, but because the second appellant’s application had been refused by the court, he reasoned that it would be futile for him to make a similar application. There is, no recording of this application and its outcome on the court record before me. The crown has not disputed that it was made and refused. Indeed, in his notice of appeal referred to above, the second appellant complained that he was not given sufficient time to prepare for his defence. This is of course not the same as saying that he applied to be given some more time to consider his defence or the case against him.
[15] Having gone through the court record and considered all the submissions herein, I have no hesitation whatsoever to believe or to accept the submissions by the appellants that an application for a postponement of the case was made by the second appellant on 18 July 2011 and that this application was refused by the Learned trial Magistrate. I now consider what the effects or results of that refusal are in this case.
[16] At the forefront of this enquiry is the acceptance that the trial court has a judicial discretion to grant or refuse and application for a postponement. A person, be it in a civil or criminal trial who applies for a postponement of a case seeks an indulgence from the court. The Court on the other hand has a judicial obligation to regulate its own orders. Such orders include an order or ruling on set-down and postponements. Because the discretion of the court is a judicial one, it must not be exercised capriciously, arbitrarily or at the whim or unbridled mercy of the presiding officer. It has to be done in a judicious, careful, fair and equitable manner, taking into account all the relevant circumstances of the case under consideration.
[17] The provisions of sections 141 and 142 of the Criminal Procedure and Evidence Act 67 of 1938 as amended support the general rule stated in the preceding paragraph. These sections provide as follows:
‘141. Subject to section 136 in a case to be tried by the High Court, and subject to section 102 in a case to be tried by a Magistrate’s Court, any court before which a criminal trial is pending may, if it is necessary or expedient, postpone such trial until a time, and place, and upon terms, which to such court seem proper, and further postponements may, if necessary and expedient, be made from time to time.
142. If it is necessary and expedient, a trial [may] be adjourned at any period thereof, whether evidence has or has not been given.’
[18] In Magistrate M. Pangarker v Botha (446/13) [2014] ZASCA 78 (29 May 2014), the general powers of the court regarding postponements were described in the following terms:
‘[23] Where a postponement is sought, it is determined at the court’s discretion. A party seeking a postponement must demonstrate ‘a full and satisfactory explanation of the circumstances’ grounding the indulgence’. A magistrate is empowered to grant a postponement mero motu where the ‘circumstances justify it and the further time required by the applicant is fully and adequately explained [and] refusal of the postponement should lead to an injustice being done to the party seeking it’. In Momentum Life Assurers Ltd v Thirion the court outlined the circumstances under which such an order may be granted:
‘Rule 31(1) clearly provides for an unfettered judicial discretion by furnishing the magistrate with the power to adjourn or postpone a matter mero motu. There is no suggestion that he may exercise this power only under prescribed circumstances. There may, in fact, be any number of reasons for his decision to follow this route. It may be for personal reasons or in response to the demands of public interest, for example as a result of the state of the court roll or because of an emergency situation. An unassailable reason would be if it should appear to be in the interests of justice that he do so.’
[24] Van Zyl J in Thirion said:
‘Of course no court would feel the urge to come to the assistance of a litigant who has been the author of his own misfortune and has suffered injustice by his own conduct. Cognisance must, therefore be taken of all the relevant facts and circumstances giving rise to such misfortune and injustice. If he has been careless, dilatory or in bad faith (mala fide), he cannot expect the courts to come to his assistance.’
[25] The legal principles governing the grant and refusal of postponements are well-established. In Carephone (Pty) Ltd v Marcus NO and Others, Froneman DJP held:
‘In a court of law the granting of an application for postponement is not a matter of right. It is an indulgence granted by the court to a litigant in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing party’s prejudice or potential prejudice.’
[26] In Take and Save Trading CC v Standard Bank of SA Ltd, Harms JA said:
‘One of the oldest tricks in the book is the practice of some legal practitioners, whenever the shoe pinches, to withdraw from the case (and more often than not to reappear at a later stage), or of clients to terminate the mandate (more often than not at the suggestion of the practitioner), to force the court to grant a postponement because the party is then unrepresented. Judicial officers have a duty to the court system, their colleagues, the public and the parties to ensure that this abuse is curbed by, in suitable cases, refusing a postponement. Mere withdrawal by a practitioner or the mere termination of a mandate does not, contrary to popular belief, entitle a party to a postponement as of right.’
[27] The Constitutional Court held in Lekolwane & another v Minister of Justice and Constitutional Development:
‘The postponement of a matter set down for hearing on a particular date cannot be claimed as a right. An applicant for a postponement seeks an indulgence from the court. A postponement will not be granted, unless this court is satisfied that it is in the interests of justice to do so. In this respect the application must ordinarily show that there is good cause for the postponement, whether a postponement will be granted is therefore in the discretion of the court. In exercising that discretion, this Court takes into account a number of factors, including (but not limited to) whether the application has been timeously made, whether the explanation given by the applicant for postponement is full and satisfactory, whether there is prejudice to any of the parties, whether the application is opposed and the broader public interest.’
[19] In considering whether the Learned Magistrate exercised her discretion properly or not, the following factors are pertinent:
(a) The appellants were not represented by Counsel;
(b) They faced serious and multiple charges;
(c) They were under detention;
(d) Just before trial, the crown served them with 7 additional charges;
(e) The appellants had no prior notice of the additional 7 charges or
counts;
(f) The appellants had been given 12 days to prepare for the original two counts;
(g) This was the first application for a postponement by the Appellants; and
(h) The appellants were lay persons and were never warned or advised about the seriousness of the offences against them.
[20] Whilst it is generally accepted that every person, whether under detention or not, must be given a swift or speedy trial, this is not the same as a hurried or rushed trial. Perhaps, it is correct that justice rushed is justice crushed. The primary consideration, even accepting that an accused has a fundamental and constitutional right to a speedy trial, is that a trial must be a fair exercise whose end or objective is justice in all its forms or facets; both to the accused and to society in general. These include the court itself, witnesses and the victims of the crime in question. This is, no doubt a balancing act with justice and fairness as its end game. It is neither desirable nor possible to lay down a rule of thumb as to what time period is necessary or would equate to a speedy trial. Each case must, perforce, be decided on its own peculiar and particular circumstances. Factors such as the relative seriousness and complexity of the case; the status of the accused whether under detention or not; and the ability of the accused to meaningfully participate in the trial and conduct his defence, are relevant. The list or set is not closed, exhaustive, inflexible or rigid.
[21] In the instant case, the Learned trial court did not record the application for a postponement or its ruling thereon. This is regrettable to say the least. However, considering all the facts of this case; the amendment of the charge sheet, the number of cases or counts faced by the appellants, the short period (12) days permitted to the appellants to prepare for the original two counts and the fact that the appellants were not trained in law – how to conduct their case, I have no hesitation in concluding that the learned trial court was in error in refusing to grant the application for a postponement by the second appellant. The amendment of the charge sheet in the circumstances described above was tantamount to ambushing the appellants. They were entitled to a postponement. Further, I agree entirely with the first appellant that, the court having refused the application by his co-accused, it would have been futile for him to make a similar application and based on similar application and based on similar grounds. The dice had been cast.
[22] The Appellate Division in Van Niekerk v Attorney-General, Transvaal, and Another 1990 (4) SA 806 (A) quashed the conviction and sentence imposed on the appellant who had pleaded guilty to the charge after being hastily taken to court and not being informed of the seriousness of the crime and who, had herself been eager to have the case heard and finalized that day. The court stated at 808F-809J:
‘It is a principle of our criminal procedure that an accused ought to be brought to trial without undue delay. But he must not be tried on too short notice. He is entitled to a reasonable time within which not only to prepare for trial (including the obtaining of legal representation) but also to assess and weigh his position. It is a case of taking account of the proverb ‘allow time and moderate delay; haste administers all things badly’. This means, in the words of Addleson J in S v Yantolo 1977 (2) SA 146 (E) at 150C, that:
‘(T)he procedure which is followed must leave no room for doubt as to whether … an accused has had an opportunity to understand and appreciate the seriousness of a charge and its consequences.’
The learned Judge goes on (at 150E) to hold that there must be time ‘to arrive at a mature and unhurried decision on how to plead (and) to conduct his case.’ Where he is not afforded this opportunity his conviction and sentence are liable, depending on the circumstances, to be set aside (usually on review) on the ground that not having received a fair trial, the proceedings were irregular and that a failure of justice resulted. There are a number of reported judgments which illustrate this (see R v Thane 1925 TPD 850; S v Blooms 1966 (4) SA 417 (C); Khumbusa v The State and Another 1977 (1) SA 394 (N); S v Yantolo (supra); S v Baloyi 1978 (3) SA 290 (T) and Siqodolo v Attorney General and Another 1985 (2) SA 172 (E); see too Lansdown and Campbell South African Criminal Law and Procedure vol 5 at 462). Some of these authorities seem to indicate that the remedy is confined to cases where the charge is what has been termed as a serious one involving a severe penalty such as a term of imprisonment. In an article entitled ‘The too Speedy Trial – or the Right to be Prepared for Trial’ published in (1985) 9 SACC 158, Professor N Steytler criticises this limitation. Seeing the charge in the present matter was a serious one it is unnecessary to decide the point.
It will be apparent from what has been stated that only some three and a half hours elapsed from the time that appellant first learned of the charge against her until she appeared in court. Prima facie this afforded her little opportunity to consider her position. It was one that required thought. As I have said, the crime was a serious one. …
Appellant was prejudiced by the matter, in these circumstances, being hastily proceeded with. It is true that she herself wanted it disposed of quickly and indeed that day. She admits as much. She thought her husband would thereby not find out about her prosecution. She was prepared to plead guilty because, so it is conceded in her affidavit, she had committed theft (though not of R40 229,04 but of about R5 000). She alleges it was only in court that she heard for he first time that the charge related to the former amount; and by this time she had already committed herself to a plea of guilty. The veracity of this allegation is to be doubted. At the same time, however, it is obvious that she was genuinely under the impression that only a suspended sentence would be imposed. It was this belief that caused her to adopt the course she did. Naturally, this per se would not entitle her to relief. But her decision to proceed with the trial was not, as it should have been, the product of a mature assessment of her predicament.’
[23] The effective result of what occurred in the court below is that the appellants were unreasonably dragged to a trial by the presiding officer. They had not been given sufficient time to prepare for their defence. They faced nine serious offences. They were not ready for trial. Their unpreparedness was not their fault. Their participation in the trial, the record shows, was really perfunctory. They were reluctant and incompetent participants who merely were going through the motions of a criminal trial. This was a mistrial which is no trial at all. See Khumbusa v The State and Another, 1977 (1) SA 394 and S v Nqula , 1974 (1) SA 801 at 804 and 806. That the trial went for a period of 3 days is of no moment – it did not change the gross irregularity that occurred on the first day ie 18 July 2011. (Vide NC Steytler, The Undefended Accused (Juta & Co, 1990).
[24] As I pointed out to the first appellant during argument or submissions before me regarding the magistrate’s failure to record the sentence in respect of count 9, although this may be referred to as an irregularity, however, such irregularity cannot vitiate the proceedings of the court unless it resulted in a failure of justice. The proviso to section 327 of the Criminal Procedure and Evidence Act 67 of 1938 (as amended) makes this point plain. It states:
‘Provided that notwithstanding that the appeal court is of the opinion that any point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings, unless it appears to such appeal court that a failure of justice has in fact resulted therefrom.’
The failure by the trial court to record the sentence on count 9 in respect of the first appellant did not, in my opinion, result in a failure of justice. The failure or refusal to grant a postponement, however, did.
[25] For the foregoing reasons, the appeal by both appellants herein is hereby upheld. Their convictions and sentences by the magistrate’s court under case number ML 75/11 are hereby set aside.
[26] For the sake of completeness of this judgment, there are other several issues that deserve mention in this appeal. These all relate to the procedural rights and explanations or apprisals that a court must accord to an unrepresented accused person during a criminal trial. The court record does not show that the appellants had their right to cross-examination explained to them. This is notwithstanding the fact that the appellants did cross examine the witnesses and also made an election at the close of the crown case and presented their defence. No matter how strong the judicial officer thought the crown case was; prima facie of course, the appellants had the right at that stage to move an application for their acquittal and discharge in terms of section 174 (4) of Act 67 of 1938. Deon Erasmus, in a very helpful and instructive paper entitled Procedural Explanations and Choices: The Undefended accused in a Minefield, page 16 and 26 has this to say:
‘Presiding officers are obliged to facilitate the participation, of the accused, in the trial proceedings by advising them of their rights and duties and assisting them in the exercise of their procedural choices. This assistancing of an unrepresented accused is part of the right of the accused to a fair trial. In S v Rapholo & others, it was held that the explanation of the rights of an accused person, at various stages of the proceedings must be comprehensive and the presiding officer must, in addition, be satisfied that the accused understood the explanation of their rights.
In S v Kester the court held that it is the duty of a judicial officer to “diligently, deliberately and painstakingly” explain the rights of an unrepresented accused and to ensure and confirm that it was understood. The court then postulated the following guidelines to be employed when the explanation of rights takes place. Firstly, the record must indicate and reflect in the case of an undefended accused whether or not his rights were explained to him in a proper manner, and that he understood the position. When explaining the position, a magistrate should sedulously inform the accused and confirm that the accused understands that he is entitled in an appropriate case, to close his case without leading any evidence or to apply for his discharge. The court commented that it is a salutary practice that the explanation of rights should appear on the record with adequate and satisfactory particularity, to enable a judgment to be made on the adequacy thereof. This duty should not be delegated to an interpreter, but is the duty of the presiding officer. If roneod forms are used, care should be taken to ensure that the said forms contain all the necessary explanations, together with the import thereof. Often, more needs to be explained than what appears on the form. In addition the presiding officer should ensure that the accused understands what he has been informed of, by a question or statement confirming the same. A presiding officer should assist an undefended accused in the conduct of his case, and must strive to ensure that the accused is at ease and is able to present his case to the best of his ability.
In Makgaike v S, the rights of an unrepresented accused were explained at the commencement of his trial and he indicated that he understood them. The trial was then postponed for three months. On resumption of the case, his rights were not explained to him again. The court held that this was a serious irregularity, as it infringed upon his right to a fair trial. The conviction and sentence were set aside. It is therefore clear that a presiding officer should re-explain the rights of the accused after a long postponement.
… [and at page 26]
In S v Tyebela, the principles set out above were expanded, as it was held that after the first State witness had finished his evidence in chief, there should have been an explanation to the appellant and his co-accused as to their right to cross-examine and some indication as to how they should conduct the cross-examination. It should furthermore, be pointed out to them that it was their duty to put to the State witnesses any points on which they did not agree with the State witnesses, and to put their version to the State witnesses. The court commented that, in casu, this was not done until a later stage and then only in a rough and summary manner.
In S v Kibido the court focused on the aspect of the quality of the cross examination by an undefended accused. The accused after pleading not guilty gave a full detailed explanation of his defence, and some cross-examination was ineptly done by him. It appeared from the record that the accused did not know how to cross-examine properly or how to put questions. The magistrate drew an adverse inference against the accused for his failure to cross-examine fully. The court held that this constituted a failure of justice and that the accused did not have a fair trial.
In S v Khambule it was held, that, presiding officers should assist undefended accused when they cross-examine. The court observed that the presiding officer must not only see that the rules of the game are observed but he must actively see to it that the version of the accused has been properly put to the state witnesses so that his search for the truth could bear some fruit. The court referred to the case of S v Sebatana, where it was pointed out that an illiterate accused person often only asks a few irrelevant questions or none at all, to a state witness and later delivers testimony himself, which conflicts in material aspects with the evidence of a state witness. This is a result of ignorance, despite the explanation of the rights to cross-examination. The court held, that, a presiding officer should in fact ask an undefended accused whether he agrees with every allegation made against him by the witness. In this way, it will be clear which aspects of the evidence of a witness is placed in dispute, and create an impression in the accused that he is receiving a fair trial.
It is of the utmost importance that an accused puts his version to the state witnesses for their comments thereon. It is no reason for not doing so to argue that the answer of the witness would almost always be a denial. The court is entitled to see and hear the reaction of a witness to every important allegation.
The effect of a failure to explain the right to cross-examination to an undefended accused was considered in Namib Wood Industries (Pty) Ltd v Mutiltha NO and Another, it was held that a failure to explain to rights with regards to cross-examination would be tantamount to a failure to allow cross-examination, which would constitute a gross irregularity. The court held that such a failure would further result in the accused not having a fair trial.
A presiding officer must further ensure that an undefended accused understands his rights to cross-examination. In S v Mngomezulu, the court on review assumed that a full and correct explanation as to cross-examination was given. The court commented that it does not follow, however, that an accused understood what was really required of him, or that he had any idea of how to achieve it. Even trained lawyers sometimes merely resort to “putting” perfunctorily to the witness that he is not speaking the truth. The performance of laymen could only be worse, as few have the legal wit to appreciate every point they should challenge or make, and to sort the relevant from the irrelevant. Few have the memories to store every detail of the evidence and the means to take it down in writing. When a layman is trying to cross-examine, he is often interrupted as his questions are labelled as irrelevant, repetitive or argumentative. The court commented that too much is expected, too frequently of laymen defending themselves in criminal trials. Too much is also read into their failure to cross-examine or to do so thoroughly.’
(All footnotes have been omitted by me. See also NC Steytler, ibide 63-76).
[27] Again, immediately after the cross examination of the first appellant, he was followed in the witness stand by the second appellant. He did not then indicate nor was he told that he could call witnesses or close his case then. It was only after the cross examination of the third accused that the court recorded that “Accused persons have no witnesses to call.” One would have expected that each accused were to be given the chance to present his case and to close it before his co-accused was allowed to do the same.
[28] The above procedural lapses although taken individually may not amount to so gross an irregularity as to vitiate a criminal trial; cumulatively, they may have such a result in an appropriate case. Because of the conclusion I have reached above, I do not think it is necessary to burden this judgment with a determination on what effect these procedural deficiencies had on the trial herein.
MAMBA J
For the Appellants: In person
For the Respondent: Mr. H. Magongo
