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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

NOT REPORTABLE DATE 3 SEPTEMBER 2007

In the appeal of:

JOHANNES MALOKA FIRST APPELLANT

LUKAS MOKOENA SECOND APPELLANT

and

THE STATE

RESPONDENT

JUDGMENT

1. The Appellants were convicted in the Regional Court, Oberholzer of

robbery with aggravating circumstances. The First Appellant was

sentenced to a period of 15 years imprisonment in terms of the

provisions of Section 51 of the Criminal Law Amendment Act no 105

of 1997 ("the Act"), Le the compulsory minimum sentence. The

Second Appellant was also sentenced in respect of the same charge

to 15 years imprisonment, plus 1 year for possession of an unlicensed

firearm and ammunition. The learned Regional Magistrate ("the

Magistrate") was not satisified that substantial and compelling

circumstances existed which justified the imposition of a lesser

sentence than the compulsory sentence.

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2. Both Appellants appealed (with leave having been granted) against

their sentences (the appeals against their convictions not having been

proceeded with) on the basis that there were substantial and

compelling reasons for lesser sentences to be imposed and that the

Magistrate failed to explain to the Appellants what evidence they could

place before him in order to persuade the Court not to impose the

prescribed minimum sentence. It was contended on behalf of the

Appellants that the Magistrate had failed to exercise a judicial

discretion in this respect since the Appellants were both

unrepresented. This resulted, so it was argued, in a misdirection on

the part of the Magistrate which entitles this Court to interfere with the

sentences on appeal.

3. The Appellants were not legally represented in the Court a quo. On

the occasion of their first appearance on 28 March 2003, the

Magistrate made the following notes of his exchange with both

accused:

"Hof: Misdryf ernstig, swaar vonnis voorgeskryf, regsverteen­woordiging word aanbeveel. U kan u eie prokureur aanstel of vra vir gratis prokureur van die Staat. Beide beskuldigdes wil hul verdediging self behartig".

4. The Appellants, respectively 24 and 27 years old at the time of their

trial, are on the face of it unsophisticated men (even though the First

Appellant received education to the level of standard 9). However,

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they elected to represent themselves notwithstanding the

encouragement (by way of recommendation) to obtain legal

assistance.

5. In S v Radebe: S v Mbonani 1988 (1) SA 191 (T) at 1958 it is stated

that preciding officers have "a general duty to ensure that

unrepresented accused fully understand their rights" and "that in the

absence of such understanding a fair and just trial may not take place"

Furthermore at 196F - I it is stated:

"If there is a duty upon judicial officers to inform unrepresented accused of their legal rights, then I can conceive of no reason why the right to legal representation should not be one of them. Especially where the charge is a serious one which may merit a sentence which could be materially prejudicial to the accused, such an accused should be informed of the seriousness of the charge and of the possible consequences of a conviction. Again, depending upon the complexity of the charge, or of the legal rules relating thereto, and the seriousness thereof, an accused should not only be told of this right but he should be encouraged to exercise it. He should be given a reasonable time within which to do so. He should also be informed in appropriate cases that he is entitled to apply to the Legal Aid Board for assistance. A failure on the part of a judicial officer to do this, having regard to the circumstances of a particular case, may result in an unfair trial in which there may well be a complete failure of justice. I should make it clear that I am not suggesting that the absence of legal representation per se or the absence of the suggested advice to an accused person per se will necessarily result in such an irregularity or an unfair trial and the failure of justice. Each case will depend on its own facts and peculiar circumstances".

See also: S v Mbambo 1999 (2) SACR 421 (W).

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6. In S v Manale 2000 (2) SASV 666 (NK) at 671J and 672a-c Kgomo J,

as the then was, explained the duty on a trial Magistrate as follows:

"[9.2] It is required that an accused person not only be apprised of the gravity of the charges but he/she must be encouraged to seek legal representation. When the accused appeared before the trial regional court Magistrate on 21 December 1999 he reiterated his stance that he wishes to undertake his own defence. The magistrate should have gone further to indicate to the accused that a lawyer would serve his interests better. That would constitute encouragement. The magistrate's failure to do so in the circumstances of this case was not fatal for the State case because it was impressed upon the accused that he faces a possible "Iewenslange gevangenisstraf' which is "'n swaar vonnis. He was then advised that he can again approach the Legal Aid Board for funding or consult another attorney. He remained indifferent.

[10] To have to declare that the Magistrate committed a fatal irregularity would amount to being over-fastidious and to stifle the administration of justice unduly".

See also: S v Mpata 1990 (2) SASV 175 (NK) at 181a-c;

S v Mbonani 1988 (1) SA 191 (T).

7. In S v Khuzwavo 2002 (1) SACR 24 (NC) the Court approached the

question whether an irregularity had been committed in respect of the

Magistrate's explanations, with reference to the gravity of the charges

and or the encouragement to seek legal representation, as follows:

"Na my mening moet 'n saak soos volg benader word: Indien dit van die getuienis uit die oorkonde duidelik blyk dat die verhoorhof versuim het om 'n beskuldigde behoorlik in te lig in verband met sy regte, dan het daar 'n prima facie onreelmagtigheid plaasgevind, en dit sal van die omstandighede van elke saak afhang of die beskuldigde benadeel is. Indien daar wel benadeling was, dan het daar 'n regskending

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plaasgevind wat tot 'n onbillike verhoor gelei het en wat die Hof van Appel verplig om die skuldigbevinding en vonnis tersyde te stel".

8. There is no reason to doubt that the learned Magistrate did encourage

the Appellants to obtain legal representation. That much appears

from his notes. It is furthermore clear that he explained to the

Appellants the gravity of the charges against them and that "('n) swaar

vonnis voorgskryf (is)". Although it does not appear from the record

that the period of the prescribed sentence for robbery with aggravating

circumstances was mentioned to the Appellants, there is no reason to

suspect that the Magistrate's would not have explained what '''n swaar

vonnis" entailed.

9. The gist of what was argued on behalf of the Appellants was,

however, that the Magistrate had failed to explain to the Appellants

what evidence they were entitled to produce in order to persuade the

Magistrate not to impose the prescribed minimum sentence of 15

years.

1 O. In terms of the charge sheet, the Appellants were duly informed in

count number 1 , that they were charged with robbery with aggravating

circumstances as intended in Section 1 of Act 51 of 1977. The charge

sheet reads as follows:

"That the accused is I are guilty of the crime of ROBBERY WITH AGGRAVATING CIRCUMSTANCES (read with the provisions of Section 51 (2) of the Criminal Law Amendment Act 105 of 1997)

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In that upon or about 4 November 2002 and at Rietfontein farm in the Regional Division of Southern Tvl the accused unlawfully and intentionally assault (sic) Dorothe Maria Badenhorst and then did and with force take the following items from her to wit ± R 150.00 cash, revolver, shoes, 1 x Nokia cell phone (sic), her property or property in her lawful possession aggravating circumstances being threatening her with a knife".

11 . The charge sheet complies in every respect with what was prescribed

in 5 v Leaoa 20031 SASV 13 (HHA); 5 v Ndlovu 2003 1 SASV 331

(HHA).

12. Reading the charge sheet in conjunction with the information

furnished by the learned Magistrate to the Appellants at the beginning

of their trial, due compliance not only with the duty upon judicial

officers to inform unrepresented accused of their legal rights, but also

with reference to the opportunity which the Appellants had to put

evidence before the Court in order to persuade the Court to impose a

lesser sentence is apparent.

13. Also, after they were found guilty as charged, the Appellants were

invited by the Court to produce evidence in mitigation of sentence.

14. From the above it is clear that the Magistrate, in imposing the

sentences, inclusive of the one year sentence in respect of the

possession of an unlicensed firearm by the Second Appellant,

exercised his discretion judicially and appropriately. The same

applies to the order declaring them unfit to obtain a firearm license.

7 There is no reason to hold that the Magistrate misdirected himself in

any respect.

15. The appeal against the sentences imposed on both the Appellants, is

therefore dismissed.

MA BADENHORST

Acting Judge of the High Court

I agree:

Acting Judge of the High Court

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